2016-08-24 Regulatory Update

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the August 2016 Regulatory Update.

Regulatory Perspectives – August 2016

Fall is a busy time for all of us. We bundle kids off to the first day of school, rush to fit in outdoor activities and chores before winter rolls in, or in Congress’ case, come back to work after a long Summer recess. This year as we look forward into September, EPA’s Office of Water is gearing up to be unusually busy in a push to finalize a number of regulatory actions before the change in administration. In some cases, these are responses to court orders and have set timelines, but for many it feels like a mad dash by EPA to rush these actions out the door before they have new political leadership in January.

EPA will touch everything from the underpinnings of the National Pollutant Discharge Elimination System (NPDES) program to the small stormwater and pretreatment programs this fall. The Agency’s proposed Municipal Separate Storm Sewer System (MS4) General Permit Remand Rule (Remand Rule) is scheduled, in accordance with a court settlement, to be finalized in mid-November. Despite the over 14,000 sets of comments received on the NPDES:Applications and Program Updates Rule pdf button proposal, we expect them to finalize it before the end of the year. In the spring, USGS and EPA unexpectedly released a Draft Technical Report: Protecting Aquatic Life from Effects of Hydrologic Alteration Flow Alteration Report (Draft Review) for public comment, which in and of itself is unusual for a technical report and will likely also be finalized before the end of the year. Last but not least, last year the Agency proposed the controversial Effluent Limitation Guidelines and Standards for the Dental Category pdf button (Dental Amalgam Rule) and made subsequent information requests to clean water utilities on mercury removal efficiencies. But EPA has not moved on the rule yet, which suggests they will be compelled to finalize it over the few remaining months in 2016.

NACWA is concerned that the important issues addressed in these rulemakings may not be adequately considered, or in the case of the Draft Review and Dental Amalgam Rule, whether EPA management is fully considering the impacts of its actions. The Agency may simply lack the bandwidth to get all these documents out within the next 4 months, but staff are making every effort to complete the necessary work. NACWA continues to work with multiple EPA offices on all these fronts. Stay tuned for what will, in light of the election and subsequent transition, no doubt be a chaotic autumn!

– Brenna Mannion, Director of Regulatory Affairs and Outreach (Contact me at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any comments or questions.)

Top Stories

Secondary Treatment, Nutrient Removal the Focus of EPA Survey

NACWA, along with a representative from the Water Environment Federation (WEF), met with key EPA staff August 17 to discuss initial comments on a draft ‘screener survey’ pdf button

intended as the first phase in a multi-year EPA study on the performance of secondary treatment and nutrient removal. The Agency first briefed NACWA on the proposed study during a meeting of the Association’s Water Quality Committee in July – and shortly thereafter shared a draft version of the screener survey with NACWA and WEF. The screener is a brief questionnaire that EPA believes is necessary to define the universe of treatment systems so that it can best design a more detailed survey. NACWA reviewed the screener survey and provided EPA with initial feedback pdf button

on August 1.

In its comments the Association expressed concern that EPA had not fully evaluated whether a study of this nature could provide enough granularity to allow the Agency to make sound conclusions on what type of nutrient removal is being achieved by secondary treatment plants that have not yet installed nutrient removal technology. NACWA suggested that EPA pilot the more detailed survey before conducting the screener survey to ensure it can get the information it needs. The Association also raised concerns over the Agency’s planned use of its Clean Water Act Section 308 authority to conduct the survey. Section 308 requests usually precede enforcement actions and NACWA believes that conducting the study under this authority could cause confusion and send the wrong message about the intent of the study.

NACWA and WEF committed to work with EPA to further explore whether a survey could adequately capture the level of detail EPA will need – and whether approaches other than a Section 308 request could be used to collect the information. The Agency anticipates publication of the screener survey for public comment in the Federal Register in the next few weeks, with a goal of rolling it out formally by January 2017. NACWA and WEF will provide additional feedback to EPA over the coming weeks.

NACWA Comments Outline Consequences of Proposed Changes to NPDES Program

NACWA submitted comments pdf button

August 2 on EPA’s proposed rulemaking regarding updates to the National Pollutant Discharge Elimination System (NPDES) program, expressing both support for and opposition to various elements of the proposal. However, the Association expressed clear opposition to the proposed revisions of 40 CFR 123.44 regarding EPA’s objection to administratively continued permits.

The bulk of the comment letter stresses the deep concern of NACWA and its members regarding EPA’s intent to designate certain expired NPDES permits that are deemed “environmentally significant” as “proposed permits,” at which point EPA could step in and federalize the permit. NACWA notes the many issues with this approach, including the potential for additional legal liabilities for utilities operating under a federal NPDES permit.

A key theme of the Association’s comments is that the proposed rule’s intent seems at odds with its likely consequences. The proposal touches a variety of components of the program: water quality based permitting, permit fact sheets, and administratively continued permits. Member feedback indicated that while some of the information reporting and electronic reporting elements of the rule are practical, many had concerns with the water quality based permitting language. NACWA’s comments reflect these concerns, stress the importance of dilution and mixing zones and design flows in setting permit limits, and underscore that antidegradation is a policy to be implemented by the water quality standards program, not to be used in a permitting context.

NACWA members that submitted their own comments on the proposal are asked to please email a copy to This e-mail address is being protected from spambots. You need JavaScript enabled to view it . NACWA will work closely with EPA moving forward as it seeks to finalize this rulemaking.

Sector Groups, EPA Discuss Water Quality Trading, Utility Financing

NACWA and representatives from other water sector associations, including the National Association of Water Companies (NAWC) and the Water Research Foundation (WRF), discussed a range of issues on August 11 with Ellen Gilinsky, EPA Office of Water Senior Policy Advisor, and other senior staff during a bi-monthly water sector meeting. EPA discussed its collaborative efforts with the U.S. Department of Agriculture (USDA) to support water quality trading and encourage more programs nationwide. In a recent blog, the Agency and USDA summarized a report from a September 2015 National Workshop on Water Quality Markets and the plan for action that both agencies will undertake to promote water quality trading, including a national database of trading programs.

EPA also provided a summary of the July 19 program on funding and financing water infrastructure for communities in need, which several NACWA members participated in. As a follow-up to this event, the Agency will provide additional information to utilities and communities, share successful funding mechanisms, and facilitate communication between utilities about financing challenges and solutions.

Energy Issues

Water Sector Groups Advance Energy-Water Nexus Discussions

NACWA and other water sector organizations are following up on the topics discussed during the Department of Energy’s (DOE) Energy Water Nexus Roundtable series last year. The roundtable discussions featured a cross-section of issues related to the energy-water nexus, including the impacts of climate change, energy security and system integration. Notably, the series featured a presentation on water infrastructure and the potential for wastewater treatment plants as utilities of the future.

To advance these discussions NACWA, the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), the National Association of Water Companies (NAWC), the Water Environment Federation (WEF), the Water Environment & Reuse Foundation (WE&RF), and the Water Research Foundation (WRF), sent a letter pdf button

to Secretary Moniz requesting a meeting to present the needs of the water community related to energy. Organizers also plan to discuss opportunities for the clean water community to collaborate with DOE on future budget considerations, as well as ways to enhance utility of the future activities. The meeting with Secretary Moniz has been set for September 7.

Funding and Finance

CEQ Releases NEPA Climate Review Guidance, Could Impact Federal Utility Funding Programs

This Guidance may ultimately trickle down to clean water agencies through various federal programs and projects. For example, NEPA will directly apply to all loans made under the new WIFIA program. States also apply a review process derived from NEPA in administering their SRF programs. The final Guidance results from an Administrative effort that began in 2010 to modernize federal implementation of NEPA. Read the full story from the Clean Water Current.

Pretreatment & Pollution Prevention

Review of EPA Centralized Waste Treatment & Landfill Categories Requested

NACWA submitted comments pdf button

on July 27 on EPA’s 2016 Preliminary Effluent Guidelines Plan. In the Plan, EPA indicates it will continue its detailed study of the Centralized Waste Treatment (CWT) Category, which is currently focused on oil and gas extraction wastewater. In its comments, NACWA recommended that the Agency consider making this study broader, due to the problems that utilities have experienced with discharges from CWTs. NACWA also recommended that EPA consider studying the Landfills Category and suggested that EPA evaluate whether the Soap & Detergent Manufacturing Category is still necessary. See full story in the Clean Water Current.

NACWA Active on Swimming Pool Discharges

EPA is currently completing its review of a swimming pool biocide, lithium hypochlorite, which is the first swimming pool chemical under evaluation in the Agency’s current round of pesticide reviews. Since wastewater and stormwater utilities have expressed concerns about the potential of fish kills due to the chemicals in swimming pool discharges, the Agency has proposed label language for lithium hypochlorite that would require contacting the local utilities and following their discharge instructions.

The final language for lithium hypochlorite labels is expected to set a precedent for other swimming pool chemicals. NACWA will coordinate with its Pretreatment & Pollution Prevention Committee to submit comments on the label language by the September 12 deadline.

Climate Change

EPA Releases Updated Resilience Tools for Utilities

EPA has launched an updated version of their Climate Resilience Evaluation & Awareness Tool (CREAT),which assists water, wastewater and stormwater utilities in their climate risk assessment and planning. The new tool has an improved web-based interface and adds features like a risk assessment report that includes complete monetization. Input from practitioners, associations, and climate scientists have all helped to make this a more robust tool for clean water utilities to understand and adapt to climate change. See full story in the Clean Water Current.

Wet Weather

EPA Announces Public Listening Session for Great Lake CSO Notification

EPA announced pdf button

that it will hold a public listening session on September 14 in Chicago to obtain information for its development of public notification requirements for combined sewer overflows (CSOs) into the Great Lakes. EPA is required under its Fiscal Year (FY) 2016 appropriations bill from Congress to develop public notice requirements for CSOs into the Great Lakes, with implementation mandated by December 2017 (see Advocacy Alert AA 15-20 for more information).

NACWA has hosted a call with EPA and Great Lakes utilities to provide input on the notification requirements, and the Association encourages all utilities that have CSOs discharging into the Great Lakes to participate in the public listening session. Please contact This e-mail address is being protected from spambots. You need JavaScript enabled to view it if you plan to attend the session.

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