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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the April 2012 Regulatory Update.  This Update provides a narrative summary of relevant regulatory issues and actions current to the end of April 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.

Top Stories

NACWA Discusses Strategy with EPA and DOJ on Two Key Nutrient Lawsuits

NACWA continues to pursue intervention in two recent lawsuits dealing with nutrient issues that have the potential to significantly impact the Association’s clean water utility members.  NACWA met April 26 with key EPA and Department of Justice (DOJ) officials to discuss the two cases. The discussion at the meeting was very productive and will help to inform NACWA’s work to draft legal papers for intervention in the two cases.  NACWA looks forward to continued discussion with EPA and plans to file intervention papers at the appropriate time.

The two cases were filed last month by environmental activist groups, and NACWA’s Board of Directors moved quickly to unanimously approve the Association’s intervention on both litigation matters to ensure that the perspective of the municipal clean water community is represented.  One lawsuit, Natural Resources Defense Council v. EPA, deals with an environmental activist petition to update EPA’s secondary treatment regulations to require nutrient removal for all wastewater treatment plants in the United States.  The second suit, Gulf Restoration Network v. EPA, deals with development of numeric nutrient criteria for the Mississippi River Basin.  Members will receive updates on developments as they occur.

NACWA Files Brief in Chesapeake Bay TMDL Case

NACWA filed a brief  on April 20 in litigation over the total maximum daily load (TMDL) for the Chesapeake Bay, defending the use of a holistic watershed approach – and the inclusion of nonpoint source agricultural dischargers in the TMDL to address the Bay’s water quality impairment issues.  The municipal brief, filed jointly by NACWA along with the Virginia Association of Municipal Wastewater Agencies (VAMWA) and the Maryland Association of Municipal Wastewater Agencies (MAMWA), argues that the watershed approach embodied in the TMDL program is both lawful and necessary to restore water quality.  It further argues that EPA’s inclusion of both nonpoint source and upstream discharges was legal and appropriate.  The brief highlights the significant investments and achievements municipal clean water utilities have made to improve water quality in the Chesapeake Bay, particularly with regard to nutrient impairments.  It further argues that additional restrictions on point source dischargers without addressing the significant nonpoint contributions would be inequitable.

The litigation, American Farm Bureau Federation, et al. v EPA, stems from an attempt by the American Farm Bureau and other agriculture groups to challenge the final TMDL and limit EPA’s ability to regulate nonpoint agricultural dischargers as part of the implementation of the TMDL.  NACWA and its municipal partners moved to intervene in the litigation last year to protect the interests of municipal clean water agencies and defend EPA’s ability to address all sources of water quality impairment.  While the specific facts of the case deal with the Chesapeake Bay watershed, the issue of defending a comprehensive watershed approach is one that has national implications.  Additional information on the case is available on NACWA’s Litigation Tracking webpage.

EPA Issues Formal Denial of SSI Rule Reconsideration, NACWA Pivots to Legal Challenge

After months of delay, EPA issued its formal written denial of NACWA’s request for administrative reconsideration of the Agency’s sewage sludge incinerator (SSI) rule on April 6, paving the way for the Association to ramp up its legal challenge to the rule.  The denial notice  outlines EPA’s reasons for rejecting NACWA’s request and focuses primarily on procedural as opposed to substantive issues.  EPA did not raise any particularly new or novel arguments in the denial.  The Agency also issued a denial letter on the same day to the Sierra Club, which had also petitioned for reconsideration of the rule.

With notice of EPA’s denial published in the April 27 Federal Register, NACWA will move quickly to establish a briefing schedule in its legal challenge to the rule.  NACWA is also exploring ways to use EPA’s denial notice in the lawsuit, thus further bolstering the legal issues the Association will raise before the court in seeking to strike down the rule.  NACWA anticipates having a briefing schedule established by June 1 and will seek to file its opening brief in the case soon after the schedule is set.

NACWA Meets with New Office of Science and Technology Director

NACWA staff met on April 2 with Elizabeth (Betsy) Southerland, the recently named Director of the Office of Science and Technology (OST) in EPA’s Office of Water, to brief her on NACWA’s priority issues.  Southerland took the reins of OST on March 27 from Jeff Lape, who had been Acting Director since the end of 2011 when long-time director Ephraim King retired from the Agency.  OST is responsible for developing water quality criteria, overseeing state water quality standards programs (including nutrients), developing pretreatment standards, and implementing the 40 CFR Part 503 biosolids program.  NACWA has had a strong working relationship with OST in the past and expressed its optimism to Southerland for future efforts working together.  Southerland worked previously in OST before leaving in the early 2000s to work 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 plans to establish a regular meeting schedule with Southerland and her staff.

Climate Change

NACWA Board Approves Participation in Biogenic Greenhouse Gas Emissions Lawsuit

On April 22, NACWA’s Board of Directors approved the filing of an amicus curiae brief in the case of Center for Biological Diversity (CBD) v. EPA, which is currently before the U.S. Circuit Court for the District of Columbia Circuit.  NACWA’s brief will support EPA’s three-year deferral of biogenic carbon dioxide (CO2) emissions from Clean Air Act (CAA) Title V and Prevention of Significant Deterioration (PSD) permitting requirements.  In response to comments  from NACWA, EPA specifically included emissions from wastewater treatment and the combustion of biogas and biosolids in the final deferral .

EPA began regulating greenhouse gas (GHG) emissions under the CAA in January 2011, with the GHG Tailoring Rule setting tiered emissions thresholds to bring sources into the permitting program incrementally.  In July 2011, EPA finalized its deferral of biogenic CO2 emissions for three years to provide the Agency an opportunity to study these emissions and determine if and how they should be regulated.  Biogenic emissions are typically excluded from other state and international GHG inventories and regulations, such as EPA’s annual Inventory of Greenhouse Gas Emissions and Sinks and California’s AB 32 greenhouse gas regulations.  CBD and a coalition of other activist groups filed their opening brief on March 27, 2012, alleging that EPA’s deferral decision was illegal and asking the court to vacate the deferral.

Although CBD’s arguments are aimed primarily at combustion of plant life, not at emissions from POTWs, a decision by the court against EPA in the case would almost certainly vacate the deferral for all biogenic CO2 emissions since the legal justifications for the deferral are the same for all biogenic emissions sources, regardless of their origin.  If the court vacates the entire deferral decision, POTWs would immediately be subject to all of the requirements of the GHG Tailoring Rule to obtain CAA permits for GHG emissions that met the thresholds set in the Tailoring Rule.

NACWA members with information about the biogenic emissions from their facilities, including estimates of emissions amounts, are asked to contact Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  An upcoming Advocacy Alert will provide additional information about the CBD lawsuit and NACWA’s upcoming brief, as well as a more detailed request for information.

Conferences

Regulatory Highlights from NACWA’s National Environmental Policy Forum

NACWA’s National Environmental Policy Forum took place April 22-25 in Washington, D.C., and underscored the influential role the Association plays in helping to shape Congress’ and EPA’s clean water agenda.  Below are several regulatory highlights from the meeting.

Integrated Planning Continues to Garner Significant Attention
The Association’s Regulatory, Legislative, and Legal Affairs committees met jointly on April 23 and had a detailed discussion of the benefits and roadblocks to utility development of integrated plans under EPA’s forthcoming framework, expected to be released in May.  Several utilities shared that they are already developing plans or are in negotiations with EPA to better incorporate integrated planning into their orders or agreements related to an enforcement action.  EPA representatives at the Policy Forum reassured the membership that they will be supportive of utility efforts, but underscored the fact that the states will be taking the lead in negotiations with utilities on these plans.  State regulators are cautiously optimistic about integrated planning, while expressing concern over the potential burden of reviewing and implementing the plans on top of their existing workloads.

Nutrient-Focused Resolution Approved
At their April 22 meeting, the NACWA Board of Directors approved a resolution, Comprehensive Water Quality Monitoring to Address Nutrient-Related Impacts . The resolution, which was recommended by the NACWA Water Quality Committee and endorsed by the Regulatory Policy Committee, relates to nutrient monitoring and the importance of a clean water agency “knowing its watershed.”  The concept was an outgrowth of NACWA’s 2010 Nutrient Summit during which participants agreed that where monitoring programs were lacking, the clean water community should work to ensure that the appropriate data were collected.  Building on this recommendation from the Summit, this action by NACWA’s Board further demonstrates the clean water community’s leadership on this issue.

Water Quality Trading Working Group Formed
NACWA members met with EPA staff on April 25 to introduce the Association’s recently-formed Water Quality Trading Working Group and discuss future opportunities for engagement and collaboration.  EPA will be reviewing its 2003 Trading Policy document in the coming months and NACWA plans to engage the Agency on barriers to water quality trading that Association members have encountered.  The Working Group, chaired by David Taylor of the Madison Metropolitan Sewerage District, will be holding a kick-off call soon to create an advocacy agenda and work plan.  If you are interested in participating or would like more information on this group, please contact Hannah Mellman at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Jim Hanlon, Director of EPA’s Office of Wastewater Management, Announces Retirement
Forum attendees also learned of the retirement of Jim Hanlon, the Director of EPA’s Office of Wastewater Management, after 39 years with the Agency. Hanlon’s last day at EPA will be June 1.  NACWA members honored Jim with a standing ovation at Wednesday’s Forum session, congratulating him on a career of dedicated service to the Nation’s environment.

NPDES E-Reporting Rule

EPA to Host Webinar on Proposed NPDES Electronic Reporting Rule; NACWA to Comment

EPA, in cooperation with NACWA, the Water Environment Federation (WEF), and the National Rural Water Association (NRWA), is hosting a webinar on the proposed National Pollutant Discharge Elimination System (NPDES) electronic reporting rule on May 23, 1:00-3:00 pm EDT.  The proposed NPDES e-reporting rulemaking, which is currently under review by the Office of Management and Budget, is intended to enable public agencies to submit their permit requirements electronically.  EPA hopes this will increase data accuracy and provide more efficient use of limited resources.  EPA expects that the proposed rule will be published in the Federal Register within the next few months, followed by a comment period and promulgation of the final rule at the end of this calendar year.  If you have any concerns with the rule as proposed, please send your input to Cynthia Finley at This e-mail address is being protected from spambots. You need JavaScript enabled to view it for inclusion in NACWA’s comments to EPA.

The presentation during the webinar is intended to educate NPDES permittees on the proposed rule, clarify the rule’s requirements, and provide the implementation schedule.  If you are interested in participating in the webinar, you must register at https://www1.gotomeeting.com/register/633569249.

Security & Emergency Preparedness

NACWA Security & Emergency Preparedness Committee Talks Strategy on Publication of RMP Information

NACWA’s Security & Emergency Preparedness Committee held a conference call on April 5 to discuss the strategy of the Association after EPA decided to indefinitely postpone its plans to make certain Risk Management Plan (RMP) data available over the internet.  The Committee agreed that the current methods – such as Freedom of Information Act (FOIA) requests and federal reading rooms – of making non-Off-Site Consequence Analysis (non-OCA) sections of the RMP database available to the public are sufficient.  EPA had stated in a December 1 decision  that internet access to non-OCA information would begin in July 2012.  After the water sector associations, including NACWA, and the Chairs of the House Committee on Energy & Commerce sent letters to EPA with concerns about making this information so easily accessible, EPA announced the indefinite postponement in a March 28 email.  EPA stated that it would try 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.  NACWA Security & Emergency Preparedness Committee members agreed that the Association should continue to work with the other water sector associations to send a unified message to EPA about the appropriate distribution of non-OCA RMP information.  Committee members also made productive suggestions for how EPA can make chemical risk information accessible to the public, such as through local emergency planning committees that already have the information and through the Toxic Release Inventory (TRI) program.  NACWA will keep members informed about any discussions between EPA and the associations on this issue.

Stormwater

NACWA Applauds Key EPA-Philadelphia Partnership Agreement

NACWA attended an April 10 signing ceremony for a partnership agreement  between EPA and the City of Philadelphia on its City’s Green City, Clean Waters program to reduce sewer overflows and stormwater runoff.  Philadelphia’s innovative program provides an example of how municipalities can use EPA’s new integrated planning approach to address wet weather issues.  In the agreement, signed by EPA, Philadelphia Mayor Michael Nutter, and NACWA member the Philadelphia Water Department, EPA commits to support Philadelphia as it adopts a broad-based green infrastructure program to improve water quality and the sustainability of its neighborhoods.  EPA also agreed to provide technical assistance to the City as it implements green infrastructure approaches and to remove regulatory barriers to implementation.

The agreement states that it “may also serve as a model for other municipalities seeking more sustainable solutions for urban wet weather pollution control and advances EPA’s efforts to support Integrated Planning approaches to meet wet weather control obligations under the CWA.”  In remarks at the signing ceremony, Administrator Jackson emphasized her hope that the partnership agreement could help other communities address wet weather concerns in similarly innovative ways.

NACWA issued a press release applauding both EPA and Philadelphia for creating a unique and historic federal-local partnership to address wet weather concerns.  With EPA poised to issue its final draft integrated planning framework in May, this agreement could help other communities pursue innovate wet weather solutions through an integrated planning approach.

EPA Continues Work on Stormwater Rule

Top EPA water officials confirmed April 25 that the Agency continues work on developing a new national post-construction stormwater rule.  Publication of a draft version of the rule for public comment is not anticipated until early 2013.  EPA is still reviewing a number of the technical aspects of the rule, including how to calculate an accurate economic analysis of the potential costs and benefits of new stormwater controls.  Many of these analyses are proving more complicated than originally anticipated.  EPA’s previous deadline for the rule was April 27, but the Agency has established a new interim deadline of May 11 while it works to develop a revised long-term schedule that will outline specific dates for promulgation of a proposed rule and final rule.  NACWA will advise its members as soon as the specifics of a rulemaking schedule are known.  The Association also looks forward to continued work with EPA in the coming months as the Agency further develops the rule to ensure that the perspective of the municipal stormwater community is represented in the rulemaking process. 

NACWA Meets with OMB on Controversial Stormwater Memo
In a related development, NACWA met on April 25 with the White House Office of Management & Budget (OMB) to discuss potential revisions to EPA’s controversial 2010 memorandum  on stormwater permits and total maximum daily loads (TMDLs).  Joining NACWA in the meeting were the American Public Works Association (APWA) and the National Association of Flood & Stormwater Management Agencies (NAFSMA).  The three organizations reiterated their mutual concern – previously provided to EPA in written comments  – regarding the memo.  In particular, the municipal groups emphasized that the memo marked a significant policy change that could only be done through a formal rulemaking process, and highlighted the significant legal flaws with the document.  The groups also outlined the major economic impacts that the memo could have on municipal stormwater utilities, a fact that seemed to resonate with OMB staff. NACWA and its municipal partners reiterated the need for EPA to withdraw the 2010 memo and expressed concern that some states and EPA Regions continue to cite to the 2010 memo as current Agency policy, even though OMB review of potential changes to the document has not been completed.  NACWA will follow up with OMB regarding these discussions and will keep the membership updated on developments.

Water Quality

NACWA Discusses Need for Greater Cooperation with USGS

NACWA met with Pixie Hamilton, National Coordinator of the United States Geological Survey (USGS) Cooperative Water Program (CWP), on April 2 to discuss ways that the Association can cooperate with the USGS and involve more clean water agencies in the CWP.  The Program consists of 48 science centers that work with states, municipalities, and tribes to conduct more than 700 studies each year.  The study results are intended to support stakeholder decisions related to water quality, ecosystem health, water availability, energy, and climate.  The CWP supports water quality monitoring at nearly 4,000 stream sites and wells, and many of these sites use real-time water quality sensors to provide information on quickly-changing conditions.  The Program operates with shared funding from USGS and stakeholders, with USGS currently providing about 30 percent of overall funding.  Hamilton also spoke at NACWA’s National Environmental Policy Forum last month and underscored the importance of NACWA-USGS collaboration.

Many NACWA members participate in the CWP, and USGS would like to increase this participation and the awareness about data produced by the CWP that can support utility decisions.  The meeting builds on a Memorandum of Understanding NACWA signed with the USGS several years ago and the Association will be working with USGS to ensure more communications to its members on, and to further define the benefits of, the CWP in meeting the information needs of utilities.