» Clean Water Current Archive

February 1, 2013

NACWA/WEF/WERF Release Water Resources Utility of the Future. . . Blueprint for Action

NACWA, the Water Environment Research Foundation (WERF), and the Water Environment Federation(WEF) this week jointly released a pioneering document that defines the evolving environmental, economic, and social roles that clean water utilities are playing in their communities. As outlined in Water Resources Utility of the Future . . . Blueprint for Action , this new water resources utility of the future (UOTF) will transform the way traditional wastewater utilities view themselves and manage their operations. The document explores how traditional publicly owned treatment works have mastered their core wastewater treatment function and are now redefining themselves as resource recovery agencies and vital community enterprises.

The Blueprint opens the door to re-imagining the Clean Water Act in the wake of unprecedented progress and evolution over the 40 years since the Act’s passage. “This Blueprint will help us realize a sustainable future that minimizes waste, maximizes resources, protects the ratepayer, improves the community, and embraces innovation in an unprecedented manner,” said Ken Kirk, Executive Director, NACWA. “It also will help ensure that UOTF issues are front and center as the 113th Congress and incoming Administration develop their environmental priorities.”

The audience for this Blueprint, however, is broader than just federal policymakers and includes local utility managers, private sector interests, state and local governments, technology providers, and many others within the clean water, drinking water, energy and agricultural communities. NACWA, WERF and WEF are working to ensure the document is broadly distributed.

UOTF issues will be on the top of the agenda at NACWA’s Winter Conference next week in Miami. The Association plans production of a tri-fold, providing a prioritized advocacy agenda based on the Blueprint’s recommendations. For more information on the report, please contact NACWA’s Managing Director, Government & Public Affairs, Adam Krantz at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

NACWA Files Brief with Supreme Court in Nutrients Case

NACWA submitted a brief  this week with the U.S. Supreme Court encouraging review of a lower court ruling on controversial nutrient limits in a federally-issued discharge permit. NACWA’s brief in Upper Blackstone Water Pollution Abatement District (UBWPAD) v. EPA supports a request  by Association member agency UBWPAD for review of a lower federal court decision approving EPA’s inclusion of inappropriate nitrogen and phosphorus limits in the utility’s permit.

The NACWA brief argues that allowing permit writers to derive numeric limits from narrative standards, without regard to relevant local water quality information, is inconsistent with EPA’s own regulation, and exposes public clean water utilities to the threat of spending limited public dollars on investments that are not necessary to address local water quality concerns. The brief notes that this is the first federal case to address the proper way to translate narrative nutrient criteria into numeric limits in permits, and that the lower court’s erroneous findings on this issue have national implications. Accordingly, the brief requests that the Supreme Court review the case and reiterate the importance of considering relevant local information when permitting decisions are made.

The case stems from a 2008 permit that UBWPAD appealed over concerns with nutrient limits developed without regard to local water quality considerations. The utility was unsuccessful in an appeal before a federal appellate court in August 2012, and is now seeking Supreme Court review of the case. NACWA has previously filed two briefs at the appellate level in support of UBWPAD. Additional information on the case can be found on NACWA’s Litigation Tracking webpage.

NACWA Encouraged by EPA Actions in Florida Regarding Nutrients; Submits Comments

NACWA submitted comments  this week on two EPA rulemakings related to the Agency's federal nutrient criteria for the State of Florida. Since 2009, when EPA issued a determination that federal criteria for the state were necessary, the Agency’s efforts have garnered significant attention. Many stakeholders saw EPA’s actions in Florida as the first in what could become a long list of federal criteria for nutrients. While this heavy-handed federal program has not materialized, developments in Florida are still very relevant for the nation. EPA took several actions on November 30, 2012, including approving the Florida Department of Environmental Protection’s (FDEP) nutrient criteria proposal, revising the 2009 determination that federal criteria were necessary, and signing two proposed rules, which were the focus of NACWA's comments.

Though EPA was compelled by Consent Decree to issue the proposed rules further outlining federal criteria for the state, the Agency’s planned actions over the coming months, as detailed in both proposals, set out a clear path forward to restoring Florida as the primary authority for developing water quality standards for its waters. In addition, EPA’s approval of the FDEP criteria, which include a biological confirmation component that EPA has previously been unwilling to approve, shows an increasing willingness by the Agency to recognize innovative approaches that can better account for the varying responses to different nutrient levels among waterbodies. The Agency has previously insisted on strict independent applicability of numeric criteria, where only the concentration of nitrogen or phosphorus, not the actual biological health of the waterbody, dictates whether there is an impairment. Taken together, EPA’s recent actions regarding Florida reflect a positive shift in the Agency’s thinking. Significant issues remain that will need to be addressed over the coming months; however, NACWA is encouraged that EPA appears to be taking the steps necessary to give FDEP full control over the state’s waters.

NACWA Wet Weather Task Force Finalizes Proposed Wet Weather Legislation

NACWA’s Wet Weather Task Force, chaired by NACWA Board Member John O’Neil, General Manager of the Johnson County Wastewater Department in Kansas, has completed work on a legislative proposal to help communities better manage peak wet weather flows at publicly owned treatment works (POTWs) and collection systems. The Wet Weather Community Sustainability Act would amend the Clean Water Act (CWA) to authorize use of peak excess flow treatment technologies and management approaches, such as ballasted flocculation, blending, and peak excess flow treatment facilities. It would also require EPA to issue guidance to States on how to develop wet weather water quality standards. For more information and a summary of the proposal, see today’s Advocacy Alert (13-02). NACWA will be discussing the legislation at the Legislative and Regulatory Policy Committee Meeting, taking place next Tuesday at 3:30 pm Eastern during the Association’s Winter Conference in Miami, Fla. Clearly, with wet weather still being EPA’s top enforcement priority, this legislation takes on even greater importance (see related story).

Wet Weather Remains EPA’s Top Enforcement Priority for FY 2014 – 2016; NACWA to Comment

EPA announced  last week that it is seeking public comment on the Agency’s National Enforcement Initiatives for Fiscal Years 2014 – 2016, which include a significant focus on municipal wet weather issues. The Agency’s current enforcement initiatives include ‘discharges from municipal wastewater and stormwater systems’ as the number one priority. This weeks’ notice suggests EPA will continue this primary focus on municipal wet weather infrastructure issue in the next three year cycle. Comments to EPA are due by February 27.

NACWA intends to comment on the enforcement initiatives document, and strongly encourages its public agency member to do so as well. Members are invited to provide input to NACWA’s comments, as well as copies of their own comments, by forwarding information to the Association’s General Counsel, Nathan Gardner-Andrews, at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Federal Court Issues Disappointing Decision on Stormwater Fees

The U.S Court of Federal Claims released an unfortunate legal decision on Jan. 25 in litigation over payment, by federal government facilities, of municipal stormwater fees. The court found that stormwater charges billed to federal facilities by NACWA Member Agency DeKalb County, Georgia are a local tax and not a utility fee under federal law. The court also found that the 2011 amendment to the federal Clean Water Act (CWA), which clarified federal responsibility for municipal stormwater charges, do not apply to charges that qualify as taxes and were billed prior to the amendment's enactment. Accordingly, the court ruled that the County cannot collect pre-2011 unpaid amounts.

The decision's finding on the CWA amendment's applicability to pre-2011 amounts is directly at odds with a ruling last year from a federal district court in Washington State, which ruled the amendment does apply to pre-2011 amounts. Given that two separate federal courts have reached different conclusions on the amendment's pre-2011 applicability, utilities seeking to recover pre-2011 amounts will need to carefully review their legal options.

Post-2011 Payments Affirmed by Court

The court did note, however, that the language of the 2011 amendment clearly establishes federal responsibility for payment of stormwater charges going forward regardless of whether they are deemed fees or taxes. Accordingly, this decision should not impair the ability of stormwater utilities to collect charges from federal facilities that were billed after the January 2011 enactment of the CWA amendment.

NACWA participated in the DeKalb County case with a brief in support of the County, and is disappointed with the court's decision. The Association strongly disagrees with the court's conclusions regarding the tax vs. fee analysis, as well its finding on the pre-2011 applicability of the CWA stormwater fee amendment. NACWA will continue to track developments in the case, including any possible appeal, and stands ready to continue aggressive legal advocacy on this issue. Further information in the case is available on NACWA’s Litigation Tracking webpage.

NACWA Launches New Congressional Toolbox

NACWA launched a new Congressional Toolbox feature on its website this week to support and enhance Member Agency outreach to their Members of Congress. The Toolbox contains updated factsheets on priority areas of NACWA’s legislative work, including integrated planning, water infrastructure needs, funding and financing for water infrastructure, climate change resiliency, energy production at wastewater treatment plants, and the Farm Bill. There is also a step-by-step guide on how to find and contact your Members of Congress to set up meetings and discuss your priority issues. Please contact NACWA’s Manager, Legislative Affairs, Hannah Mellman at This e-mail address is being protected from spambots. You need JavaScript enabled to view it with any feedback and/or suggestions for additional factsheets you would find useful.

The Toolbox is part of a concerted NACWA effort to encourage more public utility members to arrange regular visits and facility tours with their Senators and Representatives – both in Washington, DC during NACWA’s National Environmental Policy Forum, and in their home districts. On Wednesday, Ken Kirk, NACWA’s Executive Director, sent an email to all NACWA public agency members launching this initiative and explaining how greater communication with elected officials will help ensure Congress makes clean water a key part of its agenda. For assistance arranging these Congressional meetings, please contact the Association’s Government Affairs Assistant, Claire Moser at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

President Signs Sandy Recovery Package, Includes Funds for Impacted Utilities

The Senate adopted and the President signed off on the Hurricane Sandy recovery measure this week. The House of Representatives had passed the bill on January 15. The relief package contains a total of $50.7 billion in emergency spending aimed at helping those impacted by the storm. Of that, $500 million will be designated to the Clean Water State Revolving Fund (CWSRF) and $100 million will be designated to the Safe Drinking Water State Revolving Fund (DWSRF) to enhance clean and safe water system resiliency to future extreme weather events in the states of New York and New Jersey. This bill, coupled with the $9.7 billion bill passed earlier in January, for the National Flood Insurance Program to handle claims related to the storm, brings the total recovery package to $60.4 billion, the amount the Obama Administration originally requested.

This is the first time Congress has provided any funding to enhance utility preparedness and it sets an important precedent for future resiliency-related bills. While there are clearly no silver linings to the storm’s devastation, it did underscore for many Members of Congress the need to make our clean water systems more resilient to the effects of climate change. NACWA will be actively urging Members of Congress to support The Water System Resiliency and Sustainability Act, which would establish a program through which the nation’s water supply, wastewater, stormwater, and flood management agencies would be eligible for funding to undertake projects to make their operations and infrastructure more resilient to extreme weather. Sponsors of this legislation include Representative Lois Capps (D-CA) and Senators Harry Reid (D-NV), Barbara Boxer (D-CA), and Ben Cardin (D-MD).

Have a Peak Performing Facility? Apply Today & Get Recognized!

NACWA is currently accepting applications for the 2012 Peak Performance Awards. All eligible Member Agencies are encouraged to submit their nominations as soon as possible. As announced in Member Update 13-01, the Peak Performance Awards is a nationally recognized program that acknowledges member agency facilities for excellence in wastewater treatment as measured by their compliance with their National Pollutant Discharge Elimination System (NPDES) permit requirements.

The deadline for submissions to the Peak Performance Awards is April 5, 2013. Visit NACWA’s website for more information on the Peak Performance Awards program and apply today!

NACWA wishes all of its members traveling to Miami
for next week’s Winter Conference a safe trip.
We look forward to an informative and engaging meeting.