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The National Association of Clean Water Agencies (NACWA) is pleased to provide the membership with the Winter 2014/2015 Legal Update.

Legal advocacy is a central component of NACWA’s mission to advance national advocacy goals and safeguard the interests and rights of NACWA Member Agencies. This Update provides summaries of current legal initiatives and discusses developments in NACWA’s litigation matters. Additional information on cases discussed in this Update with links to key rulings and pleadings can be found on the Association’s Litigation Tracking web page. For a condensed overview of all active NACWA litigation, see the Litigation Tracking Spreadsheet.

Any questions regarding this Update or NACWA’s legal advocacy efforts can be directed to This e-mail address is being protected from spambots. You need JavaScript enabled to view it  (202/833-3692) or to This e-mail address is being protected from spambots. You need JavaScript enabled to view it  (202/530-2758).

Back by Popular Demand – NACWA’s Wet Weather Consent Decree Workshop

Due to the success and value of the inaugural Workshop, NACWA will be hosting the second annual Wet Weather Consent Decree Workshop to be held in late April/early May at a location to be determined. This day-and-a-half event will provide clean water agencies with the most up-to-date consent decree information – including resources to negotiate new decrees or renegotiate existing decrees to best serve their communities and the environment. The Workshop will also provide a forum for candid dialogue and information-sharing on lessons learned, successful negotiation strategies, and how to avoid pitfalls using a roundtable format to facilitate smaller group discussions.

NACWA will be updating the 2014 Wet Weather Consent Decree Handbook and releasing the revised version during the Workshop. This publication is the premier resource for municipal attorneys, managers, and staff to use during negotiations over federal or state enforcement actions.

NACWA will finalize and update members on the exact dates and location in early January. The Association will also begin developing the agenda for the Workshop in January, and registration information will be available in late February. Ideas for topics to be covered at the Workshop are always welcome – please feel free to submit suggestions to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Law Seminar Addresses Key Clean Water Issues

Over 100 people attended NACWA’s National Clean Water Law Seminar in St. Pete Beach, Florida, in November participating in a conference agenda that examined the most important current topics in clean water law. The Seminar featured top clean water attorneys and professionals from around the country, providing robust and detailed analysis of current regulatory and legal issues.

A recap of the Seminar is available here, and presentations are available on NACWA’s website. NACWA thanks all of the participants from this year’s conference and looks forward to another great event next year.

Web Seminar Addresses Security & CSO Cost Issues

On December 10, NACWA hosted another Legal Hot Topics Web Seminar, which featured compelling presentations on tort liability protection related to terrorism and considerations of costs under the 1994 Combined Sewer Overflow Policy .

A summary of the webinar is available here, and presentations and a link to the video of the webinar are available on NACWA’s website.

Mark your calendars for the next Legal Hot Topics Web Seminar to be held on March 18.

NACWA Releases Analysis of Stormwater Program Fee Litigation

NACWA recently released its newest member resource Navigating Litigation Floodwaters: Legal Considerations for Funding Municipal Stormwater ProgramsNavigating Litigation Floodwaters: Legal Considerations for Funding Municipal Stormwater Programs , which is available free of charge and offers an analysis of the types of legal issues impacting stormwater funding programs.

NACWA’s white paper provides an overview of critical legal considerations and legal precedent that will help members and stormwater utilities that are creating, implementing or defending a stormwater program, utility or fee. If a fee is challenged, it is imperative that utilities do their “legal homework” – including all relevant laws and previous cases in their state on the issue of stormwater fees – to ensure the best chance of success for a fee program. While the basis for such challenges will vary by state and may even vary within a state, there are lessons that can be derived from examining the evolving body of caselaw.

The white paper provides a convenient compilation of relevant legal precedent that should be carefully examined by a utility facing a legal challenge. Even if a fee is not currently being challenged, the information in the white paper can help a utility legally bolster a program or fee to proactively avoid litigation.

For more information on this member resource, see Advocacy Alert 14-23. NACWA welcomes feedback on this document, including suggestions for additional cases to add. Please send any thoughts or comments to This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Legal Affairs Committee Will Convene in February at Winter Conference

The next meeting of the NACWA Legal Affairs Committee will be at 7:30 am ET on February 3, 2014 as part of NACWA’s 2015 Winter Conference - Leaving the Comfort Zone... Collaborating for Clean Water in Charleston, South Carolina.

The Winter Conference program  will focus on collaboration with both traditional and non-traditional partners. New alliances, while out of the normal comfort zone, have resulted in both improved dialogue and water quality, as well as enhanced technical and financial capabilities for everyone involved. Hotel information and registration is now available.

CURRENT CASES

Biosolids

Briefing Concluded in NACWA’s Challenge to EPA’s Non-Hazardous Secondary Materials Rule

On October 14, briefing concluded in the Solvay USA Inc., et al. v EPA litigation on EPA’s final Non-Hazardous Secondary Materials (NHSM) Rule. NACWA has been active in this case to bolster its strong advocacy on sewage sludge incinerator (SSI) issues.

The NHSM Rule classifies sewage sludge when combusted as a solid waste and provides a critical regulatory foundation for EPA’s SSI Rule. The SSI Rule in turn regulates SSIs as a type of solid waste incineration unit. The NHSM Rule does not have any direct regulatory impact on sludge that is managed via means other than incineration.

NACWA’s final reply brief  argues that EPA’s Resource Conservation and Recovery Act (RCRA) jurisdiction is limited to “discarded” materials that are “solid wastes.” The brief argues that EPA’s continued attempts to extend RCRA jurisdiction to sewage sludge is contrary to law and arbitrary and capricious. RCRA has an explicit “domestic sewage exclusion” (DSE) that prevents EPA from regulating sludge as a solid waste. The brief also points out that EPA’s arguments in NACWA’s previous legal challenge  to the SSI Rule acknowledge that domestic sewage is the direct cause of sewage sludge, and EPA has no legal basis to now claim that the DSE does not cover sludge when it is combusted. EPA filed its final response brief  and the environmental activist groups filed a reply brief  challenging NACWA’s position and arguing that the NHSM Rule properly classifies sewage sludge as a solid waste when combusted.

NACWA’s litigation of this issue dates back to 2011 when the Association originally filed a legal challenge to the NHSM Rule and at the same time challenged the SSI Rule. For a complete background on this case, see Litigation Tracking.

Court in Washington State Delivers Major Biosolids Victory

A court in Washington State issued a resounding legal victory  for land application of biosolids on November 4, endorsing arguments made by NACWA and others in the case to overturn a land application ban. In a unanimous published decision in State of Washington v. Wahkiakum County, the Washington Court of Appeals found that a local ban instituted by Wahkiakum County on the application of Class B biosolids was unconstitutional under state law and conflicted with the clear intent of the state legislature to support biosolids recycling.

The court ruled that the local ban failed under the three main analyses of conflict preemption. In particular, the court noted that the ban ran afoul of the clear legislative purpose under state law to encourage recycling of biosolids via land application, explaining that “if local governments have the power to ban land application of biosolids, land application….could be banned throughout the state, clearly thwarting the legislature’s purpose of recycling biosolids through land application.” Additional details and analysis of the decision are available on NACWA’s Litigation Tracking webpage.

NACWA joined with the Northwest Biosolids Management Association (NBMA) and other municipal clean water interests in the Northwest to file a brief  in the case encouraging the court to strike down the ban. NACWA applauds the court’s decision, which will provide strong legal precedent for utilities both within Washington State and nationwide to push back against similar local land application bans. The court’s unequivocal language about the danger and illegality of local bans thwarting state and federal laws designed to encourage land application is especially important and can be valuable to land application proponents across the country.

NACWA Will File Brief in Pennsylvania Biosolids Case

NACWA will join the Pennsylvania Municipal Authorities Association (PMAA) in filing an amicus curiae brief in litigation before the Pennsylvania Supreme Court regarding attempts to limit the land application of biosolids.

The major issue presented in Gilbert v. Synagro is whether the land application of biosolids is an agricultural activity that is protected under Pennsylvania’s right to farm act. This case will be the first time that any state supreme court has addressed the role of biosolids land application practices under right to farm statutes.

Ensuring that land application is considered a normal agricultural practice under right to farm laws is critical for clean water utilities because it provides land application programs with additional legal protection from lawsuits challenging the practice, similar to protections enjoyed by other agricultural fertilizers. The plaintiffs in this case are claiming that land application is not a normally accepted farm practice entitled to right to farm protections but is instead an exotic and dangerous activity to dispose of toxic waste in a manner that threatens public health.

If the court were to determine that land application should not be afforded the protections of the state right to farm law, the consequences for clean water utilities in Pennsylvania and elsewhere will be significant. Almost every state has a right to farm act. While each state statute differs in some respects, the decision in the Gilbert case will be very influential in future right to farm act cases across the country.

In the joint brief, NACWA and PMAA plan to provide an authoritative clean water utility view on the history, success and importance of land application of biosolids from both the national and state perspective. A key focus of the brief will be to outline the large body of literature, facts, and state and federal policies and law demonstrating that land application is an accepted farm practice across the United States. As NACWA has successfully done in past land application litigation efforts in California and Washington State (see above) the Association’s participation in this case can provide a vital national clean water perspective to the court as it examines this important legal issue. Once the brief is filed, it will be available on NACWA’s Litigation Tracking webpage.

Consent Decrees

NACWA Files Brief in Consent Decree Litigation

NACWA submitted a brief  on December 12 in federal litigation over wet weather consent decrees, arguing against efforts by environmental activist groups to block entry of a decree successfully negotiated by a municipal clean water utility with its federal and state regulators. The Association's brief filed with the U.S. Court of Appeals for the Seventh Circuit in United States, et al. v. Metropolitan Water Reclamation District of Greater Chicago (MWRD) supports Association Member Agency MWRD in seeking to uphold a lower court decision entering a consent decree as negotiated by the utility.

In the brief, NACWA argues that a lower court properly applied a presumption in favor of approval to the decree, and that the court was correct in rebuffing efforts by activist groups to change the decree and add additional requirements not negotiated by the parties. The brief also notes the importance of upholding decrees that are negotiated by clean water utilities and government regulators, especially since these parties have the expertise to determine the proper requirements for the decree. The brief also notes that the ability of third parties to substantially change decree requirements through a judicial challenge would add unnecessary cost and complexity to the consent decree process.

In an unusual development and a potential sign of NACWA’s growing influence on legal matters, the environmental activist groups involved in the case refused to give consent for NACWA to file an amicus brief. NACWA therefore had to submit a request to the court to file the brief, and the court surprisingly declined to accept the brief on the basis that it did not add any information to what the other parties had briefed. While NACWA strongly disagrees with the court’s decision because the amicus brief clearly addresses new issues that would be helpful to the court – especially with regard to national policy implications – the Association determined after consulting with MWRD not to seek reconsideration of the decision. NACWA is hopeful, however, that the brief will have some impact on the court’s deliberations, and NACWA will continue to track developments.

MS4 Permits/Fees

Awaiting Decision from Ohio Supreme Court on Stormwater Program/Fee Case

The Ohio Supreme Court is anticipated to issue a ruling soon in Northeast Ohio Regional Sewer District (NEORSD) v. Bath Township, et al., which involves a challenge to a municipal stormwater management program instituted by NACWA Member Agency, the Northeast Ohio Regional Sewer District (NEORSD). The legal dispute over NEORSD’s authority for the program and related stormwater fee reached all the way to the state Supreme Court after conflicting decisions by two lower courts. The court heard oral arguments on September 9 - full video coverage of the arguments is available here.

NACWA joined with the Association of Ohio Metropolitan Wastewater Agencies (AOMWA) to file a brief  in the case supporting NEORSD. The brief emphasizes the importance of municipal stormwater management and fee programs, arguing that the increasing complexity and cost of municipal stormwater regulations necessitate a more affordable, equitable, and effective method for utilities to manage and charge for stormwater services. Accordingly, the brief highlights the importance of providing legal recognition and protection for stormwater management programs like the one developed by NEORSD, including the ability for utilities to fund such programs.

NACWA’s participation in this litigation is part of the Association’s aggressive advocacy to defend stormwater programs. The Association has engaged in similar cases such as a recent one in Maryland and will continue to do so in the future (see below). In addition, NACWA recently released its newest member resource Navigating Litigation Floodwaters: Legal Considerations for Funding Municipal Stormwater Programs , which will help members prepare for and defend against these types of challenges (see above). NACWA will report any developments.

NACWA Will File Brief in Lawsuit Challenging New York’s General MS4 Permit

NACWA plans to join on a brief early in 2015 in a key stormwater case in New York State. Natural Resources Defense Council v. New York State Department of Environmental Conservation involves a challenge before the New York Court of Appeals by environmental activist groups to New York’s General Municipal Separate Storm Sewer System (MS4) Permit, which typically covers smaller sized communities. Most fundamentally, this case raises the question of whether the explicit standard in the CWA for MS4s to “reduce the discharge of pollutants to the maximum extent practicable” (also known as the MEP standard) supersedes the requirement that CWA permits ensure strict compliance with water quality standards – including the possibility of numeric effluent limits.

While all stakeholders recognize that stormwater runoff from urban areas is a source of water quality impairment, municipal utilities across the country are concerned that extensive retrofits to capture and treat stormwater, which would likely be necessary if MS4 discharges were required to comply with water quality standards and numeric effluent limits, are impractical and would be extraordinarily costly.

Continued NACWA legal advocacy to defend the MEP approach is especially important since, in the absence of a national stormwater rule, environmental activist groups now appear to be pursuing a strategy to challenge MS4 permits at the state level across the nation in an effort to undermine the MEP standard. Success by activist groups in any one of these state challenges will provide them with a model to use for new cases in other parts of the country.

The case also raises important questions about the specific burdens and challenges that small communities face in complying with stormwater requirements. In particular, the case will address whether general MS4 permits must require monitoring of stormwater, as well as what kinds of public notice and comment procedures should be required when communities adopt stormwater management plans under a general MS4 permit. These issues go to the heart of what kinds of requirements are appropriate in general MS4 permits for small communities, as opposed to requirements that are appropriate in individual MS4 permits for larger cities.

NACWA will join Member Agency New York City Department of Environmental Protection and others to file an amicus brief by January 2, 2015. The joint brief will aggressively defend the MEP standard under the CWA and support the current New York State general MS4 permit. Once the brief is filed, it will be available on NACWA’s Litigation Tracking webpage.

NPDES Permit Issues

EAB Holds Oral Arguments in Satellite System Permit Appeal

EPA’s Environmental Appeals Board (EAB) heard oral arguments on December 11 in a permit appeal over efforts by EPA Region 1 to include satellite collection systems as co-permittees in a federally-issued discharge permit for a regional wastewater treatment facility. The key issue presented in the Charles River Pollution Control District appeal is whether EPA can forcibly include satellite systems as co-permittees in a permit when neither the satellites nor the treatment facility has requested the inclusion of the collection systems. NACWA previously submitted a brief  in the case supporting a challenge to the permit filed by Member Agency the Upper Blackstone Water Pollution Abatement District and attended the oral arguments.

The EAB judges appeared skeptical during the hearing about many of the arguments advanced by EPA Region 1 in defense of the permit. In particular, the judges noted that the satellite systems had not applied for the permit, and thus their inclusion in the permit was a potential violation of EPA’s own permitting regulations. The judges also expressed concern about whether the satellites had received sufficient notice that they would be included in the permit.

It is likely a decision in the case will be issued in early 2015, and NACWA will report on any developments.

TMDLs

Oral Argument Held in Chesapeake Bay TMDL Appeal

The U.S. Court of Appeals for the Third Circuit heard oral argument on November 18 in American Farm Bureau v. EPA, an appeal by the American Farm Bureau (AFB) of a lower court ruling that rejected all AFB’s challenges to the final total maximum daily load (TMDL) for the Chesapeake Bay, and upheld EPA’s inclusion of nonpoint sources as part of the TMDL. The decision also granted requests by EPA, NACWA and others to uphold the final TMDL and its holistic watershed approach that requires pollution reduction from all sources of impairment to achieve nutrient and sediment reductions.

The three-judge panel was thoroughly prepared and seemed inclined to uphold the lower court ruling. The panel also appeared to agree with EPA’s interpretation of the TMDL provision of the CWA, i.e., the “holistic watershed approach” with allocations for “all source sectors/all states.”

The panel repeatedly referenced the precedent established by the Ninth Circuit in the Pronsolino v. Nastri decision (2002), which holds that impaired waters should be listed and subject to TMDLs under CWA § 303(d), whether impaired by point sources, nonpoint sources, or a combination of both. NACWA participated in the Pronsolino case at every stage to protect member agencies from nonpoint source efforts to remove themselves from the scope of the TMDL program.

NACWA has partnered with the Virginia Association of Metropolitan Wastewater Agencies (VAMWA) and the Maryland Association of Metropolitan Wastewater Agencies (MAMWA) in the Bay TMDL litigation in order to provide a strong defense of the watershed approach to achieve water quality improvements. The Association and its municipal partners filed a brief  earlier this year in the appeal supporting the lower court decision (as did a group  of major U.S. cities).

It will likely be several months before the Third Circuit rules on the case. NACWA will keep members informed of any developments.

Water Transfers

NACWA Files Brief in Water Transfers Case

NACWA joined with a number of other water sector and municipal organizations on September 22 to file an amicus curiae brief in litigation over EPA’s Water Transfers Rule. The brief in Catskill Mountains Chapter of Trout Unlimited Inc., et al. v. U.S. EPA supports EPA’s appeal of a lower court decision that vacated key portions of the rule. The water transfers regulation, which was finalized in 2008, exempts transfers of natural, untreated water for purposes of waters supply or flood control from regulation under the Clean Water Act’s National Pollution Discharge Elimination System (NPDES) permit program. However, the lower court ruling from earlier this year struck down significant elements of the rule and – if upheld – will likely require many water transfers to receive NPDES permits.

The joint amicus brief  filed by NACWA and other groups seeks to highlight the significant operational and regulatory challenges that permitting of water transfers would present to municipal water supply and flood management programs. The brief argues that the CWA never envisioned – nor did Congress intend for – permitting of these types of transfers since they do not result in any addition of new pollutants to receiving water bodies. The brief also argues that the NPDES program is the wrong tool to regulate such transfers, suggesting that other approaches such as federal drinking water requirements, TMDL program, and state regulations are better suited to address concerns over water transfers. Other organization joining on the brief include the American Water Works Association, the Association of Metropolitan Water Agencies, that National Association of Water Companies, the Water Environment Federation, and the U.S. Conference of Mayors.

NACWA has long supported the exemption of water transfers from the NPDES permitting scheme and was pleased to support filing of a broad municipal amicus brief in this case.

Water Quality Criteria/Standards

Mississippi River Basin Nutrient Case on Appeal

On December 4, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments in the Gulf Restoration Network, et al. v. EPA case in an appeal of a September 20, 2013, federal district court ruling  in the Mississippi River Basin (MRB) nutrients case. The litigation centers on a challenge by environmental plaintiffs to EPA’s response to a petition requesting a determination that federal numeric nutrient criteria (NNC) are necessary for the MRB and Gulf of Mexico. The district court held that EPA is required under the CWA to make a determination on whether federal NNC are necessary, but gave EPA wide discretion in the types of factors the Agency can consider when making the determination. The court further gave EPA 180 days to make the determination finding, which was thereafter stayed by the Fifth Circuit Court pending appeal of the district court’s September 2013 decision. This means EPA will not have to publish a necessity determination regarding federal NNC until the Fifth Circuit has ruled on the Agency’s appeal.

During the oral argument, EPA focused on the procedural question regarding the Agency’s discretion to decide whether to make a necessity determination in the first place. The Agency argued to a panel of three appellate judges that it is responsible for setting water quality rules and judicial interference is not necessary. EPA did not focus on the types of factors it can consider in making a determination.

NACWA’s primary interest in this case is the substantive question (what kinds of factors can EPA consider when making a determination) and not the procedural question (does EPA have to make a decision in the first place). NACWA participated actively in the case at the district court level, filing both a joint  and individual  brief, and was pleased with the wide discretion the district court gave to EPA in making a potential necessity determination. Because the appeal focuses on the procedural and not the substantive issues, NACWA and the other intervenors in the case supporting EPA are not participating directly in the appeal at this point. However, NACWA is closely monitoring developments. A decision in the appeal is expected in the coming months.

Issues of Interest

NACWA and EPA Inspector General’s Office Discuss Consent Decree Investigation

NACWA has had ongoing conversations over the past few months with EPA’s Office of Inspector General (OIG) to discuss OIG’s investigation  into the effectiveness of the Agency's municipal wet weather enforcement efforts via consent decrees. This project was originally part of OIG’s 2014 Annual Plan  and has been carried over to the 2015 Annual Plan . The investigation was initiated in August and is nearing the end of the research phase. At the conclusion of the investigation, OIG will provide recommendations to EPA on how it can improve the effectiveness and efficiency of this enforcement initiative.

During recent discussions, NACWA learned that OIG has narrowed the scope of their investigation and is focusing specifically on the outcomes from consent decree programs in order to determine the overall success of the enforcement initiative. OIG is evaluating nine case studies as part of this investigation. However, OIG is conducting a field investigation of only two utilities and relying on EPA information and data for the other seven. NACWA cautioned OIG that the EPA data may not reflect the best and most appropriate environmental measures of success or the economic and social impacts of consent decree programs on local communities. OIG invited NACWA to provide additional specific examples and case studies and committed to review these as part of the investigation if provided by January 15.

NACWA wants to ensure that OIG has the benefit of the most accurate and comprehensive information available, and is seeking information and examples from Member Agencies that have used/are using a broader suite of environmental and economic indicators to measure the success of their wet weather consent decree programs. NACWA is looking for examples that support the position that success should be measured not only by volumetric or numeric overflow reduction but by water quality monitoring and modeling (e.g., bacteria levels, days of water quality attainment, stream miles improved, and other additional benefits such as air quality improvement, wildlife habitat restoration, urban beautification and economic development). Members that are willing to share this information are asked to contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it (202/833-3692) or This e-mail address is being protected from spambots. You need JavaScript enabled to view it (202/530-2758).

NACWA will continue the dialogue with OIG on this important investigation and will keep the membership updated.

NACWA Requests Briefing on New EPA Environmental Justice Screening Tool

NACWA submitted a letter  to EPA on December 16 requesting a briefing and more information on a new environmental justice tool currently under development by the Agency. The tool, which has been discussed  by EPA officials in recent months, is designed to provide online data about environmental conditions that may be negatively impacting environmental justice communities. However, NACWA has heard from multiple sources – including utility members, states, and industry partners – that the data being used in early versions of the tool is significantly flawed and outdated.

While NACWA is supportive of environmental justice initiatives, the Association also wants to ensure that any data being used in the new tool – especially NPDES permit data being displayed – is accurate and complete. NACWA looks forward to meeting with EPA to learn more about this tool and how it can be improved. EPA is not expected to release the tool for public use until later in 2015. We will keep the membership updated on developments.

New EPA Stormwater Permit Guidance Addresses Numeric Limits

EPA's Office of Water issued a revised version of its controversial 2010 stormwater memo on November 26. Intended to provide guidance to states and EPA Regions on permitting approaches for stormwater discharge permits, the revised memo incorporates a number of changes that are largely positive and were made in direct response to concerns raised by NACWA.

The memo, Revisions to the November 22, 2002 Memorandum “Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLA) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs , is an update of an earlier version originally released by EPA in November 2010. NACWA was one of the first organizations to express concerns with the November 2010 version of the memo, and submitted written comments  together with the American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA) in January 2011. Those comments raised concerns about the lack of stakeholder input and persuaded EPA to open the memo to public comment – and ultimately resulted in EPA’s withdrawal of the 2010 memo.

NACWA’s original concerns with the November 2010 memo were clearly considered by EPA and the Association overall is pleased with the modifications that have been made, as well as the memo’s acknowledgment of integrated planning. There are still stormwater permit policies left to be clarified, especially with regard to numeric permit limits, but the memo demonstrates a positive shift in the Agency’s approach. Major changes in the memo are the omission of surrogates such as flow, noticeably toned-down language regarding numeric limits, and a focus on effective waste load allocation translation to permit limits. NACWA plans to meet with Office of Water staff to discuss implications, including lingering concerns with the use of numeric effluent limits in MS4 programs and EPA’s current thinking regarding flow-based TMDLs.

NACWA, WEF, WERF Meet with EPA on Virus-Based Water Quality Criterion

On December 3, NACWA, the Water Environment Federation (WEF) and the Water Environment Research Foundation (WERF) met with Betsy Southland, Director of the Office of Science & Technology in EPA’s water office to discuss the Agency’s ongoing efforts to develop a water quality criterion for viruses.

EPA has completed a literature review and is now working to develop the criterion, with an initial focus on two different types of bacteriophage as potential indicators for the presence of viruses. The water sector groups have requested a list of the resources EPA identified in its review to ensure it includes all relevant studies and information.

During the meeting, NACWA continued to stress the major implications such a criterion will have for the clean water community – and to underscore that EPA should move cautiously, with a clear plan for how this can be implemented, as it develops the criterion. NACWA will be coordinating with WEF and WERF to collect any additional data and information needed on the treatability of bacteriophage compared to the existing bacterial indicators, and will meet with EPA regularly to obtain updates and discuss developments. The Agency plans to release a draft criterion for comment in late 2015 or early 2016.

Dental Amalgam Separator Rule: Survey, Tools, Fact Sheet and Comment Period Deadline

NACWA is currently collecting data from utilities to help the Association develop comments on EPA’s proposed Dental Amalgam Separator Rule . The rule would establish pretreatment standards for the over 100,000 dental offices that place or remove amalgam fillings. NACWA is asking all Member Agencies and non-member utilities to complete the Mercury & Dental Amalgam Survey by COB January 7, 2015. All NACWA Member Agencies are encouraged to complete the survey.

To assist utilities in completing the survey, a spreadsheet is now available for download at www.nacwa.org/surveyspreadsheet. Utilities may use the spreadsheet to collect their data, and then enter it into the survey form. A PDF document  of the entire survey, without the need to click through the survey form, is also now available. Utilities completing the survey can reference the survey instructions and contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with questions. NACWA has also posted a fact sheet  about the proposed rule, with more detailed information contained in Advocacy Alert 14-21.

The EPA comment period for the proposed Dental Amalgam Separator Rule was extended and will now close on February 21, 2015. NACWA and the American Dental Association (ADA) submitted a joint request  for this extension, which was followed by requests from other national and regional associations.