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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the March 2012 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to the end of March 2012.  Please contact NACWA’s Chris Hornback at 202/833-9106 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it or Cynthia Finley at 202/533-1836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any questions or information on the Update topics.

NACWA Board Unanimously Approves Intervention in NRDC Nutrient Lawsuits

On March 23, the NACWA Board of Directors approved intervention by the Association in the two lawsuits discussed below.  This action on Natural Resources Defense Council (NRDC) et al. v. EPA and Gulf Restoration Network et al. v. EPA paves the way for the Association to move forward aggressively and defend its members’ legal interests in these two critical cases.  NACWA anticipates filing its intervention papers within the next few weeks.

The two lawsuits were filed in a coordinated effort to pressure EPA to take direct federal action on the issue of nutrients.  The first lawsuit , filed by NRDC and other groups on March 13, challenges EPA’s failure to respond to a 2007 NRDC petition requesting that the Agency add nutrient removal to the current Clean Water Act (CWA) secondary treatment requirements.  A similar group of activist organizations, including NRDC, filed a second lawsuit the same day in federal court in New Orleans challenging EPA’s recent denial of a 2008 petition filed by the groups to establish numeric nutrient criteria for all waters nationwide where such criteria had not been developed but, at a minimum, for all waters in the Mississippi River watershed and the Gulf of Mexico.

The outcome from these lawsuits could have significant impacts on NACWA members and on all publicly owned treatment works (POTWs) nationwide.  Including a technology-based treatment limit for every wastewater treatment plant in the nation, regardless of a demonstrated water quality need, would come at an astronomical financial cost, with conservative NACWA estimates reaching in excess of $280 billion nationally.  An effort by EPA to establish numeric nutrient criteria for states in the Mississippi River watershed – comparable to what the Agency recently did in Florida – would have equally concerning ramifications for impacted POTWs.  It would also set a very negative precedent for municipal discharges in all other parts of the country.  NACWA is committed to taking whatever action is necessary to protect its members from these impacts.

NACWA, Municipal Water Groups Meet with Wastewater Management Director

NACWA staff and representatives from the Water Environment Federation (WEF) and National League of Cities (NLC) met on March 27 with Jim Hanlon, Director of the Office of Wastewater Management in EPA’s water office, to discuss a range of clean water topics.  Integrated planning topped the agenda and Hanlon confirmed that senior management will be briefed on the next version of the Agency’s integrated planning framework in early April.  The framework, which is expected to be released as a ‘living document’ in mid-April, was only slightly revised based on comments that EPA received (see related story).  EPA hopes that it can move quickly into the implementation phase to begin to develop some success stories with the framework that can be featured as case studies for other communities.  On the issue of how sanitary sewer overflows (SSOs) and blending can be addressed via integrated planning, Hanlon indicated that the Agency plans to handle these on a case-by-case basis.  He confirmed that there are no ‘behind the curtain’ efforts to move separate policies on SSOs or blending forward at this time.  On the stormwater front, EPA indicated that it is still negotiating with the Chesapeake Bay Foundation on a new deadline for proposing the post-construction stormwater rule.  EPA secured another temporary extension of the existing deadline until April 27, but is working on a long-term extension that would likely push proposal of the rule into spring 2013.  EPA continues to struggle with assessing the costs of storwmwater controls and quantifying the environmental impact of those controls, but indicated that all options, including retrofit requirements, are still on the table.  On nutrients, Hanlon indicated that his office will be engaged directly in the Agency’s work to respond to the recent lawsuit filed by NRDC and other environmental groups (see related story) seeking to compel EPA to respond to a 2007 petition that sought inclusion of nutrient controls within the definition of secondary treatment.  Updates were also provided on EPA’s efforts to trim spending in anticipation of potentially serious budget cuts in the forthcoming budget year.

New Office of Science and Technology Director Officially Takes Helm

Elizabeth Southerland assumed control of the Office of Science and Technology (OST) in the Office of Water on March 27.  Southerland takes over for Jeff Lape who had been Acting Director since the end of 2011 when long-time director Ephraim King retired from the Agency.  Southerland has worked previously in the Office of Science and Technology and was recently working in the Agency’s Superfund office.  Southerland received her Ph.D. in Environmental Science and Engineering from Virginia Polytechnic Institute and State University.  Lape will return to his role as Deputy Director of OST.  NACWA looks forward to continuing its strong working relationship with OST and is scheduling a meeting with Southerland to brief her on NACWA’s top issues.

Clean Water Act Jurisdiction

NACWA Meets with OMB on Jurisdiction Guidance

NACWA met with officials from the White House Office of Management & Budget (OMB) on March 2 to discuss the Association’s position on EPA’s proposed Clean Water Act (CWA) jurisdiction guidance.  During the meeting, NACWA presented OMB with a copy of its 2011 comments on the draft guidance.  NACWA expressed its broad support for efforts to clarify CWA jurisdiction, but recommended a formal rulemaking process.  NACWA also voiced its endorsement of increased water quality protection through a holistic watershed approach, as outlined in the guidance.

NACWA emphasized that any final guidance document must – as the draft guidance did – preserve the existing regulatory exemption for waste treatment systems.  Additionally, the Association called for the final guidance to address a number of other items, including:

• the inclusion of an explicit exemption for municipal stormwater collection systems;
• the inclusion of an explicit exemption for groundwater from CWA coverage; and
• clarification for western utilities about potential impacts on ditches and water reuse projects.

EPA and the U.S. Army Corps of Engineers sent the final guidance, which has not yet been made public, to OMB for interagency review.  The document is expected to be at OMB for anywhere from 30 to 90 days.  OMB staff seemed receptive to NACWA comments during the meeting, but made no commitments.  We will keep the membership updated on any developments.

Climate Change

NACWA Recommends Revisions to Greenhouse Gas Inventory

NACWA submitted comments on March 28 to EPA on its draft Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2010.  The annual inventory provides nationwide estimates of greenhouse gas (GHG) emissions for various sectors, including wastewater treatment, and is intended to be used only for informational purposes.  The wastewater treatment category in the Inventory includes publicly owned treatment works (POTWs), septic systems, and industrial wastewater treatment systems, and consistently ranks in the top ten sectors for emissions of methane and nitrous oxide, although wastewater emissions are much smaller in magnitude than the highest ranked categories.

NACWA has commented on the five previous Inventories, and EPA has made corrections and clarifications that have been requested by the Association.  EPA, however, has not made any major changes to the methodology used in their emissions estimates, as recommended by NACWA, particularly for nitrous oxide emissions.  The Inventory bases nitrogen loading rates for POTWs on protein consumption, with factors applied to account for nitrogen from industrial and commercial sources.  In comments on the 2007 Inventory, NACWA provided nitrogen loading rates from 48 U.S. POTWs that verified the industry-accepted value of 15 g N/capita-day.  Since EPA found this data insufficient to change its calculation methods, NACWA recommended that EPA use its own information from the National Pollution Discharge Elimination System (NPDES) database rather than using emission factors contained in guidelines published by the Intergovernmental Panel on Climate Change (IPCC), which are based on very little research.  As stated in the comments, “Since EPA believes that further data of a broader and more representative scope are required before changing the Inventory, the NPDES database would certainly suffice as it represents every centralized POTW in the U.S.”

NACWA also asked that EPA consider the applicability of any new research on emissions to all types of POTWs, stating that “relying on studies that are not representative of utilities nationwide may actually increase the uncertainty of the emissions.”  In addition, NACWA asked that EPA clarify in the Inventory that the GHG emissions estimates should not be used for regulatory purposes.  EPA staff have referenced the Inventory as a possible reference for calculating emissions from POTWs for purposes of GHG regulations under the Clean Air Act, but the industry-wide methodologies used in the Inventory are unlikely to be appropriate for calculating facility level emissions.  NACWA will evaluate any changes made in the final 2010 Inventory and will continue to monitor all EPA actions on GHGs.

Conferences and Web Seminars

Role of Pretreatment in the “Utility of the Future” to be Explored at April Workshop

Pretreatment professionals at all NACWA Member Agencies should not miss the only conference designed especially for them – NACWA’s 2012 National Pretreatment & Pollution Prevention Workshop.  This year’s Workshop, Pretreatment and the Utility of the Future: Where We Are Going and Where We Have Been, April 9-11, will provide a look back at 30 years of Pretreatment Program accomplishments, and focus on the important role that pretreatment and pollution prevention programs will play in the coming decades as utilities move from simply treating wastewater to recovering vital resources – including nutrients, biosolids, energy, and reclaimed water.  Presentation topics will include the role of pretreatment in hydraulic fracturing, bio-cremation and funeral homes, and other relevant new industries.  Legal pretreatment case studies will also be presented in the always-popular Law & Order panel.  Significantly, key program staff from EPA will be on hand to engage and update participants on the current status of effluent guidelines development and the National Pretreatment Program.

For over two decades, pretreatment professionals from across the country have benefited from the utility-focused speakers and panels, as well as the unique networking opportunities the Workshop offers.  Make plans for your key pretreatment staff to attend today by reserving a room at the Hilton Pensacola before April 17.

NACWA Policy Forum Hotel Cut-Off is April 4

NACWA's April 22-25 National Environmental Policy Forum is well-timed, as election season is in full swing and the nation's policy-makers are seriously considering important clean water issues – including integrated planning and affordability, controlling agricultural run-off, opening renewable energy markets for utilities, and innovative financing and funding for clean water investments.  Association members are encouraged to make their plans to attend today.

The Forum will take place at the Washington Marriott and includes an afternoon set aside for your visits on Capitol Hill.  High level policymakers and NACWA committee meetings on the country’s most urgent clean water issues will be part of the dynamic agenda.  Online registration, an agenda , and additional information are available on NACWA’s website.  The group rate at the Washington Marriott is available by calling the hotel directly at 202/872-1500 by April 4.

EPA

EPA Announces Safe and Sustainable Water Resources Research Program

The EPA Office of Research and Development (ORD) provided an update on March 28 on its Safe and Sustainable Water Resources (SSWR) Research program.  ORD has realigned its former Drinking Water and Water Quality research programs to maximize responsiveness to the needs of the EPA Office of Water and its critical water resource partners and stakeholders.  NACWA and representatives from several of its member agencies – including the Hampton Roads Sanitation District, the Philadelphia Water Department, and DC Water – participated in a workshop last year to provide stakeholder input on the goals, objectives, and themes of the research that will be conducted.  The SSWR Research program now has two broad research tracks: sustainable water resources and sustainable water infrastructure systems.  ORD provided information on many projects planned within each of these tracks, with the goal of ensuring that each project provides scientific backing for water policy decisions.  NACWA will continue to follow ORD’s work on the SSWR Research program and will keep members informed of progress made with the program, particularly as it relates to policy decisions made by the Office of Water.

Integrated Planning/Affordability

EPA Briefs NACWA on Integrated Planning Framework Progress

Key EPA water and enforcement officials briefed NACWA on March 21 on the Agency’s efforts to revise and release a new version of its municipal integrated planning framework.  Since the close of the public comment period on February 29, EPA has been working to review the input it received during five regional workshops and through written comments.  Agency staff indicated that they will not be making wholesale changes and that the framework will only be tweaked to acknowledge and address some of the comments received.  The revised framework will be presented for senior management review soon, and will be released publicly in early to mid-April.  When released, the framework will not be considered ‘final’, but instead will be viewed as a living document that could be further modified in the future.  EPA expects to add additional discussion about how drinking water-related issues can be considered, as well as language acknowledging the importance of adaptive management and existing watershed-based planning efforts including the Clean Water Act section 208 planning process.  The Agency is encouraging any clean water agencies interested in pursuing an integrated plan to begin using the draft framework and to not wait until the next version is available.

In the enforcement context, EPA is already seeing communities take advantage of the concepts in the integrated planning framework during ongoing negotiations with the Agency and the Department of Justice.  EPA is hoping that, by recognizing integrated planning efforts in future consent decrees, it can reach resolution more quickly on the terms of the decrees with the understanding that investments and remedies will be continually evaluated through the ongoing planning process.  The Agency also expressed a willingness to work with communities currently under decree that are interested in exploring an integrated plan.  EPA is interested in hearing from communities that want to proactively pursue integrated planning through the permitting process.  Agency representatives went on to indicate that they hope to facilitate implementation of the framework by providing states with any tools or guidance they need – and by engaging with regional offices to ensure their actions are consistent with Headquarters.  NACWA will alert the membership when the new framework is released.  If your community is exploring an integrated plan, please contact Chris Hornback, NACWA’s Senior Director of Regulatory Affairs, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it so that NACWA can track ongoing activities.

Security & Emergency Preparedness

EPA Responds Favorably to Requests to Keep Security Data off the Internet

In response to input from NACWA and the other water sector associations, as well as the House Committee on Energy & Commerce, EPA announced in an email this week that it would be postponing indefinitely its plans to make certain Risk Management Plan (RMP) data available over the internet.  EPA had stated in a December 1 decision that internet access to non-Off-Site Consequence Analysis (non-OCA) sections of the RMP database would begin in July 2012.  In a March 9 letter to EPA and the Department of Homeland Security (DHS), NACWA and other water sector associations expressed serious concerns about this decision, which EPA said would help provide access to Federal Bureau of Investigation (FBI) and DHS staff and to local responders.  The House Committee on Energy & Commerce also sent a letter with concerns about the decision.

The non-OCA data that would have been made available over the internet includes chemicals used, as well as the facility safety measures and preventative programs in place.  Non-OCA information is not restricted by law and was available on the internet from 1999-2001, but was removed by EPA after the September 11 terrorist attacks and now can only be publicly accessed in reading rooms or through Freedom of Information Act (FOIA) requests.  EPA stated that making the non-OCA info available over the internet would be helpful to FBI and DHS staff and to local responders, and would also reduce FOIA requests to the Agency.  As explained in the letter signed by NACWA, the Water Environment Federation (WEF), the National Rural Water Association (NRWA), the National Association of Water Companies (NAWC) and the Association of California Water Agencies (ACWA), RMP data must already be provided to local first responders and a more secure method of access should be available for government agencies to share information than over the public internet.

The Agency is now trying to find the balance between appropriate public access to chemical risk information and keeping the information out of the hands of those who might misuse it.  The water sector associations will continue to work with EPA on this issue and NACWA will keep members informed about any further developments as they occur.

Water Sector Coordinating Council Discusses Future of Vulnerability Assessment Tools

The Water Sector Coordinating Council (WSCC) held a web meeting on March 15 to discuss several issues, including how various vulnerability assessment (VA) tools used by utilities to assess potential vulnerabilities to threats from terror, vandalism and natural disasters will be supported in the future.  NACWA’s representatives to the WSCC – NACWA Board Member Patty Cleveland, Manager of Operations with the Trinity River Authority, Texas, and Jim Davidson, Manager of Safety & Security with the Northeast Ohio Regional Sewer District in Cleveland – participated in the meeting.  EPA and the Department of Homeland Security (DHS) are considering whether existing VA tools (VSAT, ARAM-W, and SEMS) should be upgraded to comply with the J-100 Standard for Risk and Resilience Management of Water and Wastewater Systems.

AEM Corporation is developing a new open access VA tool that will be J-100 compliant.  EPA would like there to be a single, common VA tool that is J-100 compliant and would be available for use by the entire water sector.  A decision on this will be made after the AEM Corporation tool is available for demonstration and testing.  NACWA reminds members that use of this single tool or any of the other tools discussed above remains entirely voluntary and at the discretion of the individual utilities.  The WSCC will be closely involved with this issue in the coming months and NACWA will inform members of any decisions that are made.

Stormwater

Controversial Stormwater Memo at OMB for Review

NACWA learned that a controversial EPA memo on stormwater issues is now at the Office of Management & Budget (OMB) for review, indicating that there have likely been some revisions made to the document.  The original memo , issued in November 2010, dealt with changes to EPA’s policies on total maximum daily loads (TMDLs) and permitting issues for stormwater discharges.  It sparked a significant outcry due to its suggestion that stormwater flow could be used as a surrogate for pollutant parameters when establishing TMDL loading capacity – and for suggesting that numeric end-of-pipe limits are appropriate in municipal stormwater discharge permits.  NACWA joined with a number of other municipal groups to express significant concerns with the memo, and as a result EPA agreed to take public comment last year and consider revisions.  While it is unknown at this time what changes may have been made to the document, NACWA will be meeting with OMB soon to further discuss the memo and will keep the membership updated on developments.

Water Quality

EPA Unveils New Websites on Nutrient Pollution

EPA unveiled two new websites this month to help educate the public on the significant nutrient pollution issue facing the Nation.  The first website focuses on nutrient pollution policy and is designed to help individuals access information on Agency actions to reduce nutrient pollution, state efforts to develop numeric nutrient criteria, and Agency tools, data, research, and reports related to nutrient pollution.  The second website is more educationally-focused and is geared toward homeowners, students, and educators.  This site features information explaining the problem of nutrient pollution; the sources of the pollution; how it affects the environment, economy, and public health; and what people can do to reduce the problem.

NACWA Urges EPA to Continue Work on Water/Pesticide Harmonization Effort

NACWA sent a letter on March 8 to EPA’s pesticide and water offices urging the Agency to continue its effort to harmonize how the programs evaluate the aquatic impacts of pesticides.  The Association has followed the initiative for the past two years and previously provided comments in support of EPA’s efforts.  EPA initiated the harmonization effort in recognition of the gap between the criteria values used by the water office to regulate dischargers and protect receiving waters – and the higher (less restrictive) numbers used by the pesticide office to regulate the use of pesticides.  The process is intended to evaluate a new, balanced approach that establishes an acceptable set of numbers that are protective of water quality, while ensuring that appropriate pesticide use remains feasible.

Toxicity testing requirements and water quality criteria have begun to affect utility compliance due to the presence of pesticides over which they have no control and resulted in clean water community concerns.  EPA has published three recently reviewed white papers examining various facets of this topic.  The Agency will be evaluating its next steps over the coming months as it assesses the peer review panel’s report.  EPA has received pushback from the pesticide manufacturing community over its efforts, and NACWA’s letter underscored the importance of the issue to the clean water community.

NACWA Briefs ACWA on Nutrient White Paper, EPA Nutrient Permitting Guide Delayed

NACWA briefed the Association of Clean Water Administrators’ (ACWA, formerly ASIWPCA) Nutrient Committee March 26 on the recommendations from NACWA’s March 2011 Issue Paper summarizing the outcomes and recommendations from NACWA’s 2010 Nutrient Summit.  ACWA’s committee remains focused on the potential benefits of technology-based approaches and NACWA outlined its concerns with one-size-fits-all technology solutions for nutrients.  ACWA is working to develop a written policy statement on technology-based controls for nutrients and NACWA will continue to engage with them on this critical issue.

On a related note, NACWA learned that EPA’s work to develop a permit writer’s guide on developing NPDES permit limits for nutrients based on narrative water quality standards has been delayed.  A draft was initially expected in late 2011 or early 2012, but EPA now does not anticipate having a draft until late summer 2012.