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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the June2015 Regulatory Update. This Update provides a summary of relevant regulatory issues and actions from June2015.

Top Stories

NACWA Supports FTC Wipes Agreement, Continues Flushability Guidelines Work

NACWA is continuing its work to ensure that any wipes labeled “flushable” will be safe for sewer systems and treatment plants. NACWA submitted comments  on June 19 to the Federal Trade Commission (FTC) recommending that its proposed settlement agreement with Nice-Pak Products, Inc. be finalized without change. The agreement would prohibit Nice-Pak – which supplies wipes to retailers including Costco, CVS, and Target – from advertising its wipes as flushable unless it can substantiate that the product is safe for sewer systems, septic systems, and household plumbing. NACWA agreed with the requirement for “competent and reliable evidence” to show that the product “disperses in a sufficiently short amount of time after flushing to avoid clogging” equipment in collection systems and treatment plants. The Association’s comment letter stated that wastewater utility professionals must be included in evaluating this evidence, and also discussed the need for the FTC to consider the claims of other wipes manufacturers and the problems caused by wipes containing plastics.

The FTC’s criteria for determining if a wipe can be labeled “flushable” is now a factor in ongoing work to develop new flushability guidelines, an effort that is partially supported by NACWA’s Targeted Action Fund (TAF). NACWA, the Water Environment Federation (WEF), the American Public Works Association (APWA), the Canadian Water & Wastewater Association (CWWA), and INDA (the trade association of the nonwoven fabrics industry) continued their work to develop the new flushability guidelines during a June 25-26 meeting in Cincinnati, OH. NACWA’s representative to the workgroup, Frank Dick, Industrial Pretreatment Coordinator for the City of Vancouver Department of Public Works in Washington state and Vice Chair of NACWA’s Pretreatment & Pollution Prevention Committee, participated in the meeting.

During the meeting, the workgroup focused on how to make the tests and passing criteria for the guidelines represent the real-world conditions in municipal sewers, in line with the FTC criteria. The wastewater associations plan to consult with their members to collect information that will be useful in designing the tests. The goal of the associations is for wipes that meet the criteria of the new guidelines to be safe to flush into the sewer system. The new guidelines should be completed by June 2016.

Contact: Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Legal Options for Challenging SSI Rule Now Exhausted, NACWA Highlights Implementation Difficulties in Comments on SSI Federal Plan

The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) issued a decision  June 3 in litigation over EPA’s final Non-Hazardous Secondary Materials (NHSM) Rule, dismissing challenges filed by NACWA and others to the rule. The court rejected NACWA’s arguments that the “domestic sewage exclusion” (DSE) in the Resource Conservation and Recovery Act (RCRA) exempts sewage sludge from classification as a solid waste when incinerated. The court agreed with EPA’s position that RCRA’s definition of sludge encompasses sludge produced during the wastewater treatment process, and thus the DSE does not apply.

The NHSM Rule provides a key regulatory underpinning for EPA’s Sewage Sludge Incinerator (SSI) Rule by defining sludge when incinerated as a solid waste. NACWA challenged  the NHSM Rule as part of the Association’s overall advocacy related to SSI issues. With the D.C. Circuit’s ruling in the NHSM case, all practical legal avenues to challenging EPA’s SSI regulations are now closed.

NACWA is still working to address several implementation challenges SSI utilities have identified with the new rules and submitted comments  on EPA’s draft Federal Implementation Plan (FIP)  on June 11. EPA is more than a year behind in issuing the draft FIP and NACWA highlighted how this delay has complicated the already difficult task of implementing the SSI regulations. Though NACWA’s legal avenues for challenging the SSI rule are now closed, the Association’s administrative Petition for Reconsideration , filed in May 2014, remains unanswered by EPA. In addition, EPA has failed to address the provisions of the SSI rule that were remanded by the D.C. Circuit in its August 2013 decision in National Association of Clean Water Agencies (NACWA) v. EPA, 734 F.3d 1115. NACWA’s comment letter urged EPA to address both the petition and the remanded provisions prior to finalizing the FIP.

On the implementation side of things, one of NACWA’s main concerns is the requirement in the rule to conduct performance tests at a minimum of 85 percent of the SSI’s maximum permitted capacity. NACWA raised this issue with EPA prior to release of the FIP, and at the Association’s request, EPA specifically sought comment on this provision. NACWA’s comments highlighted how utilities are having difficulty testing at the 85 percent level and how operating parameters set at this level would be inappropriate and unachievable in many cases when the SSIs are operated at their normal, lower feed rates.

EPA typically takes up to a year to finalize federal plans, but with the March 21, 2016, final compliance date now only nine months away, the Agency will have to move quickly to have the plan in place. NACWA plans to seek a meeting with EPA in the coming weeks to get a status update on its petition and discuss any questions the Agency may have on its comments.

Contact: Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

EPA, Congress and States React to New Clean Water Rule

In the wake of the release of the new Clean Water Rule (often referred to as the Waters of the U.S. (WOTUS) Rule), EPA has been reaching out to a variety of stakeholders to clarify the changes in the final version. NACWA staff joined representatives from a number of state and municipal organizations including the U.S. Conference of Mayors, the National Association of Counties, the Association of Clean Water Administrators, and the Environmental Council of the States, for EPA’s Quarterly Association Meeting where Ken Kopocis, Deputy Assistant Administrator for EPA’s Office of Water gave an overview of the Clean Water Rule, and provided clarification on language in the newly added exemptions for stormwater and water reuse systems referring to whether those units were created or constructed “in dry land.” The final rule was published in the Federal Register  on June 29, and will become effective 60 days thereafter, on August 28. In a May Advocacy Alert, the Association summarized the provisions from the final rule that are of most importance to the clean water community.

Meanwhile, Congress continues legislative efforts to require the Administration to rewrite the Clean Water Rule. The Senate Environment and Public Works Committee passed S. 1140, the Federal Water Quality Protection Act, in June requiring EPA to withdraw the rule and replace it with provisions more acceptable to members of Congress. In May, the House passed similar legislation, H.R. 1732, the Regulatory integrity Protection Act of 2015, by a vote of 261 to 155. As of July 1, 27 states have joined together in various federal lawsuits opposing the rule, arguing that EPA and the Army Corps of Engineers are attempting to take over states' responsibility for managing and protecting intrastate waters.

Contact: Brenna Mannion at 202/533-1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

National Stormwater Network Holds First Meeting; Discusses EPA Rulemaking Activity

Stormwater associations and organizations from around the country met on June 30 via conference call for the first meeting of the National Stormwater Network (NSN). NACWA formed the NSN based on feedback from these groups that there were insufficient opportunities to provide feedback on national policy-making on stormwater issues and that it would be beneficial to have more interaction with their peer organizations. State and regional clean water groups have been meeting regularly with NACWA over the last two years as part of an ongoing collaboration on important national and regional issues, and the NSN is an outgrowth of that effort focused purely on stormwater. The NSN will provide a forum for communication between the state and regional stormwater groups, while also providing more engagement on national advocacy with Congress and EPA in Washington, D.C. The NSN will, at no cost, provide groups with regular meetings on policy issues, a quarterly publication with analysis on stormwater issues, and most importantly, a louder, more unified voice on these issues with regulators and policy-makers.

Five EPA staff joined the NSN’s first call to brief participants on regulatory modifications EPA is considering in response to an ongoing legal challenge to the Phase II program. Environmental NGOs are claiming that the Agency has failed to comply with a 2003 decision that mandated EPA strengthen its small municipal separate storm sewer systems (MS4s) rules. EPA is now considering options to address concerns regarding the need for permitting agency review of notices of intent (NOIs) submitted by small MS4s as well as providing sufficient opportunity for public review and comment (see case description). State and regional leaders provided excellent feedback to the Agency and the NSN is considering submitting more formal comments as this process continues.

Contact: Brenna Mannion at 202/533-1839 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Environmental Justice

EPA Releases Environmental Justice Guidance

EPA publicly released its final Guidance on Considering Environmental Justice During the Development of Regulatory Actions  to help Agency rule writers identify and address potentially disproportionate environmental and public health impacts experienced by minority populations, low-income populations, and/or indigenous peoples. Read the full story from the Clean Water Current.

NACWA Submits Environmental Justice Comments; EPA Releases EJSCREEN Tool

NACWA submitted comments June 11 to EPA on the Agency’s draft 2020 environmental justice (EJ) strategic plan , applauding EPA’s focus on EJ but encouraging greater consideration of community financial capability and affordability issues in EJ initiatives. Read the full story from the Clean Water Current.

Financing and Funding

Association Urges Investment Partnerships for EPA Water Finance Center

NACWA and its Finance Workgroup submitted comments and suggestions  June 18 for EPA to consider as it stands up the recently-announced Water Infrastructure & Resiliency Finance Center. The Center is a unique opportunity to address some of the most complex funding questions facing water utilities. In its comments, NACWA encouraged EPA to carefully consider public-public partnerships, as well as public-private partnerships, while maintaining the tools such as tax-exempt municipal bonds, which are critical to a true and lasting federal-state-local investment partnership. Read the full story from the Clean Water Current.

Security

NACWA Signs Coalition Cybersecurity Bill Letter

NACWA joined five water organizations to send a letter  to the Senate Intelligence Committee urging that language be included in S. 754, the Cybersecurity Information Sharing Act of 2015, to clarify that local government agencies performing public utility services – such as municipal water and wastewater systems – will enjoy the same cybersecurity incentives and protections as their private-sector counterparts. Read the full story from the Clean Water Current.

Water Quality

National Water Quality Trading Network Releases New Resource

The National Network on Water Quality Trading, a group of 18 diverse organizations – including NACWA – representing agriculture, wastewater and stormwater utilities, environmental groups, regulatory agencies and practitioners delivering water quality trading programs, released Building a Water Quality Trading Program: Options and Considerations . Read the full story from the Clean Water Current.

Upcoming Events and Comment Periods

• Register for NACWA’s 2015 Utility Leadership Conference & 45th Anniversary Annual Meeting, Financing, Funding & Rates for the Future, July 12 – 15, 2015 at the Omni Providence Hotel, Providence, RI
• Register for U.S. Water Alliance’s One Water Leadership Summit, August 26 – 28.
• Register today for the NACWA-sponsored American Water Summit: Scalable Solutions, October 20 – 21 at a special NACWA Public Member Agency rate.
• Register for the International Water & Climate Forum, December 7-9 in San Diego, CA.