Clean Water Current - May 7, 2010

May 7, 2010

NACWA Challenges EPA Position in Whole Effluent Toxicity Permit Appeal Case

NACWA filed a reply brief this week with the U.S. Environmental Appeals Board (EAB) challenging arguments made by EPA in a hotly contested appeal of a federalized National Pollutant Discharge Elimination System (NPDES) permit containing whole effluent toxicity (WET) limits issued to member agency the San Jacinto River Authority (SCJRA) in Texas. The NACWA brief, the second filed by the Association in the case, rebuts arguments made by EPA in the Agency’s most recent filing , arguing both that EPA’s brief should not be accepted for procedural reasons, and that EPA’s legal arguments are not sufficient to prevail. As a procedural matter, NACWA points out that EPA did not receive permission from the EAB to file a response to NACWA’s earlier brief, and thus the EPA response must be stricken from the record. As a substantive matter, NACWA’s reply brief disputes EPA’s legal arguments in the case and reasserts the Association’s position that EPA improperly and illegally federalized the SJRA permit. NACWA’s brief also requests the opportunity to participate in oral arguments before the EAB when the case is heard in June.

At issue in the appeal are WET limits in a federalized permit given to SJRA by EPA which were not required in a previous permit written by the state. NACWA’s filed its first brief in the case in March and raised two key challenges to EPA’s actions, arguing that the Agency impermissibly changed its position as to the validity of the Texas WET permitting procedures without any explanation or basis, and that EPA improperly sought to substitute its own view of Texas water quality standards in place of the state’s interpretation. NACWA is supporting SJRA in appealing the permit and believes review by the EAB is necessary due to the far-reaching national implications the Agency’s actions could have on other CWA programs around the country. Additional information on the case can be found in the Litigation Tracking section of the NACWA web site. We will keep the membership updated on developments.

NACWA Seeks Input on Solid Waste Rule’s Impacts on Biosolids Incineration

NACWA is collecting input from its members to help craft comments on a new EPA proposed rule that asserts that sewage sludge destined for incineration is a solid waste. Advocacy Alert 10-11, sent to the membership on Wednesday, provides a summary of the new proposal, its impacts on sewage sludge incineration, and its potential impacts for other management options. Included within the Alert are several questions NACWA is seeking additional input on to help assess the scope and severity of the rule’s impacts. The Association will also be distributing a brief survey to a subset of the membership to get more detailed information. NACWA will have only 45 days to comment on the proposal once it is published in the Federal Register. The Alert also notes that the Clean Air Act proposed rules released along with the solid waste proposals last week may have impacts on public clean water agencies operating boilers at their facilities. NACWA is reviewing that proposal and will provide additional analysis soon.

Watershed Principles Approved by Task Force, Move to Board

NACWA’s Strategic Watershed Task Force has approved a set of draft watershed principles that will provide a foundation for developing consensus among various stakeholder groups on the Association’s draft 21st Century Watershed Act. NACWA has hosted a series of discussions with stakeholder groups, primarily state organizations and NGOs, on the development of these watershed principles, which will help demonstrate momentum on the issue and ensure a Congressional hearing in the House Transportation & Infrastructure (T&I) Committee on this issue in the summer or early fall. The Watershed Task Force met during NACWA’s National Environmental Policy Forum in April to discuss the principles and has since approved them. The principles will be sent to the NACWA Board of Directors next week to seek its endorsement. Should the Board endorse the principles then they will be forwarded to the full NACWA membership for their use and to other key stakeholder groups for their signature.

NACWA Discusses Clean Water and Energy Issues with GAO

The Government Accountability Office (GAO) is currently working on a new study requested by the House Committee on Science & Technology, Energy Demands of the Urban Water Lifecycle, which will examine the energy needed for both wastewater and drinking water and the technologies that exist or are being developed to decrease these energy demands. NACWA spoke with GAO via conference call this week to provide input for the study. Topics discussed included how much energy is required for wastewater conveyance and treatment, utility energy costs and expenditures, and how more stringent regulatory requirements could increase energy demands for treatment. The Association also gave GAO information on how utilities are increasing their energy efficiency and how the biogas and biosolids produced during the treatment process can be used as renewable fuels. This study is one of a set of three remaining studies that GAO is conducting on the energy-water nexus. Two other related studies were published last year: Many Uncertainties Remain about National and Regional Effects of Increased Biofuel Production on Water Resources and Improvements to Federal Water Use Data Would Increase Understanding of Trends in Power Plant Water Use. The current study is expected to be published in January 2011 and NACWA will keep members posted on this important effort.

EPA Memo Provides Direction to Regions, States on Priorities for FY 2010 SRF Spending

EPA recently sent an April 21 memorandum to its regional water management division directors clarifying the parameters for the distribution of clean water and drinking water state revolving loan funds (CWSRF and DWSRF) for fiscal year 2010. The memorandum is the final outcome of a process that included a task force on which several NACWA public agency members provided input. It is also part of a broader effort by EPA, the U.S. Department of Housing and Urban Development (HUD) and the U.S. Department of Transportation (DOT) to ensure federal infrastructure dollars are targeted to projects that promote sustainable and livable communities. Specifically, the memo finds that “in the CWSRF program States should not encourage the expansion of centralized infrastructure to accommodate growth where there are available projects that repair, replace, and upgrade infrastructure in existing communities.” The memo also seeks to ensure that, in line with the requirements of the appropriations bill, 30% of the funding is used for additional subsidization in the form of grants or grant equivalents and 20% of the funding is used for green projects — two provisions NACWA supported. The memo also discusses the application of Davis-Bacon requirements to FY 2010 CWSRF funds — an issue NACWA continues to seek clarification on from both Congress and EPA.

The FY 2010 appropriations bill provides about $3.5 billion for wastewater and drinking water infrastructure projects—$2.1 billion for the CWSRF and $1.4 billion for the DWSRF.

Support for Key Legislation Grows on Capitol Hill

Support continued to grow in recent days and weeks for two important legislative proposals: The Green Infrastructure for Clean Water Act (H.R. 4202) and the clean water trust fund bill, The Water Protection and Reinvestment Act (H.R. 3202). Both bills reflect many of NACWA’s key priorities and both now enjoy 35 co-sponsors, buoying their momentum and increasing the likelihood of consideration during the 111th Congress. Due to aggressive outreach by NACWA, its members, and other stakeholders, H.R. 4202 recently gained nine co-sponsors. New supporters include Elijah Cummings (D-Md.), Brian Higgins (D-N.Y.), Barbara Lee (D-Calif.), Dennis Moore (D-Ks.), David Price (D-N.C.), Ed Pastor (D-Ariz.), Albio Sires (D-N.J.), Bennie Thompson (D-Miss.) and John Yarmouth (D-Ky.). At the same time, H.R. 3202 continues to gain the support of Transportation & Infrastructure (T&I) Committee members, including Steve Cohen (D-Tenn.), Phil Hare (D-Ill.) and Albio Sires (D-N.J.). Support for both bills by T&I Committee Members is critical because it demonstrates to T & I Chair, Jim Oberstar (D-Minn.) that these bills should be taken up by the Committee — a key step before being considered on the House floor. NACWA appreciates all the work being done by its members to garner congressional support for these important bills.

NACWA Works with Congress to Ensure DOD Pays for Municipal Stormwater Services

NACWA recently launched a campaign to ensure that municipal agencies providing stormwater management services to Department of Defense (DOD) facilities will receive compensation for the services they provide. In conjunction with this effort, NACWA engaged the House Armed Services Committee to examine opportunities in the National Defense Authorization Act that would require DOD facilities to pay stormwater charges where appropriate. The effort comes on the heels of a preliminary decision by the Government Accountability Office (GAO) that federal facilities will not pay the District of Columbia Water and Sewer Authority’s (DC WASA) recently enacted impervious surface area charge. In their assessment, GAO claimed the charge is a tax, not a fee, and, therefore, the Federal government is exempt from payment. As NACWA discussed in detail in last week’s Clean Water Current, the Association is battling this decision through letters and in the media, and is seeking to build a coalition to advocate on this and other priority stormwater issues.