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Clean Water Act / Safe Drinking Water Act Intersection
The intersection between the Safe Drinking Water Act (SDWA) and the Clean Water Act (CWA) is a dominant factor in many of NACWA’s current advocacy priorities, demonstrating the importance of managing water holistically. The statutes serve two important but distinct purposes that are accomplished through different means. The CWA focuses on protecting the quality of navigable water by ensuring they are fishable and swimmable, while the SDWA focuses on public health and source water protection. Although these goals are not at odds, the statutes do not always work in harmony. In fact, they have been in conflict more and more in recent years.
Lead Control Issues
Perhaps the best example of this intersection/conflict is the use of orthophosphate (orthoP) as optimized corrosion control to reduce lead exposure, and the ways in which requirements imposed on public water systems (PWSs) can negatively impact publicly owned treatment works (POTWs) and downstream communities. NACWA recently submitted comments to EPA regarding the Agency’s preliminary efforts to make long-term revisions and updates to the Lead and Copper Rule (LCR).
Although the LCR is primarily a drinking water issue that impacts PWSs under the SDWA, NACWA is urging EPA to consider the impacts to municipal clean water utilities that are regulated under the CWA. NACWA is concerned that EPA will take a “one-size-fits-all” approach in determining corrosion control treatment, rather than allow states and PWSs the flexibility to select the best corrosion protection method for their site-specific water quality needs and infrastructure characteristics. The Association is also concerned if PWSs increase their application and/or concentration of phosphate-based inhibitors for corrosion control, POTWs must also increase their efforts and advanced treatment processes—at great capital costs—to remove the added phosphorus.
As an example of how this could play out, the State of Colorado recently directed Denver Water to use orthoP as the preferred method of corrosion control. The state’s rationale is that safeguarding public health trumps environmental protection – a quintessential silo response. The state’s mandate fails to consider the full spectrum of public health factors, which are directly connected to environmental health.
In response to this action, NACWA Member Agency Metro Wastewater Reclamation District and Denver Water are exemplifying the One Water approach. They share a common goal of ensuring the safest possible drinking water and are advocating for a better way to protect public health without jeopardizing the regional watershed so many depend on for drinking water (see Fact Sheet). NACWA is supporting their position.
Another cross-cutting issue is the management of per- and polyfluoroalkyl substances (PFAS) and the growing suite of similarly related chemical constituents. Contamination from these chemical substances has become a national issue because of its impact on drinking water, but local, state, and federal efforts to address the issue are already impacting the municipal clean water community under the CWA. These efforts could ultimately affect wastewater treatment operations and the way clean water utilities manage their biosolids.
In 2017, EPA hosted the PFAS National Leadership Summit and Engagement and requested public comments. NACWA submitted comments that support federal leadership from EPA in developing an appropriate response that reflects the risks posed by PFAS. Because PFAS are not a product of the wastewater treatment process and originate from outside POTWs, solutions for addressing PFAS contamination must focus on their original source.
EPA is proposing a Four-Step Action Plan that will 1) evaluate the need for a maximum contaminant level (MCL) for PFOA and PFOS, 2) propose designating PFOA and PFOS as “hazardous substances” through CERCLA or other statutory mechanism, 3) recommend groundwater cleanup levels at contaminated sites, and 4) develop toxicity values for GenX and PFBS.
The Clean Water Act and Groundwater
The potential for overlapping statutory mandates for discharges that reach groundwater is also currently a major issue of concern. Utilities and projects permitted under the SDWA may be affected by recent judicial decisions extending CWA liability to intentional discharges – e.g., water reuse – and unintentional releases – e.g., leaks from drinking water pipes and wastewater collection systems – of pollutants that enter CWA jurisdictional surface waters via groundwater.
Entities currently in full compliance with a SDWA permit may find themselves needing a CWA National Pollutant Discharge Elimination System (NPDES) permit to lawfully operate. This redundant regulatory burden and increased exposure to citizen suit enforcement may hamper beneficial reuse projects and result in the diversion of limited resources away from programs and projects with greater water quality benefits.
NACWA, along with a coalition of water and municipal organizations, submitted comments to the US Environmental Protection Agency’s (EPA’s) Office of Water regarding how discharges of pollutants to groundwater should be regulated under federal and state environmental laws in response to a February 2018 Federal Register notice. NACWA also testified before the Senate Environment and Public Works Committee on the issue.
Climate change is another cross-cutting challenge. NACWA recognizes the need for holistic measures to prepare for the effects of climate change, and the existence of potential areas of legal liability that coincide with taking―or failing to take―action. NACWA’s Statement of Principles on Climate Adaptation & Resiliency outlines a set of principles that will help guide NACWA’s work and advocacy engagement on climate and resiliency issues going forward.
Holistic, One Water Management
In the midst of these challenges, leaders in the drinking water and clean water sectors are looking for opportunities to innovate and have begun to realize new opportunities for collaboration and management of water as a single resource. Indeed, this approach is more in line with public perception, and the reality of the water lifecycle.
The average citizen or ratepayer does not see the distinction between “clean water” and “drinking water.” Consumers expect water to be safely and appropriately managed throughout the entire cycle, and it only makes sense for utilities to view it in the same way: as a resource to be managed regardless of the stage in the process.
As a result, clean water utilities nationwide are turning to integrated wastewater and stormwater planning in their CWA compliance, and to programs that include a combination of traditional engineered systems and distributed natural systems (also known as gray and green infrastructure). Utilities also have been moving beyond pure compliance with the CWA and are increasingly embracing innovative approaches and technologies related to energy production, water reuse, green infrastructure, non-traditional partnerships, and more, to improve environmental performance while lowering costs and increasing revenue and helping boost the local economy.
Holistic water management is not a new concept, but the need for facilitating a sea change in regulatory mindset is becoming more urgent. NACWA has long advocated for a modern “one water” approach that integrates both drinking water and clean water in the same way that the public has always viewed water―as one common resource to be managed in an integrated fashion. NACWA is exploring these emerging intersections between clean water and drinking water regulation, while discussing opportunities for better collaboration and more holistic regulation of water.