Regulatory Update

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October 2019 Regulatory Update

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the October 2019 Regulatory Update.  

Great Pumpkin Fails to Show, Instead Lead and Copper Rule Proposal Appears

The return of college football, pumpkin spiced lattes, and leaf peepers are sure signs Fall has arrived, but the anticipation I most look forward to all year is the October airing of the classic animation hit, “It’s the Great Pumpkin, Charlie Brown.” In the special, Linus abandons his trick-or-treating peers on Halloween night, dupes a cynical Sally in joining him, and insists that the Great Pumpkin, bearer of gifts to those that believe, will arrive and bring them great joy. To Linus’ disappointment, the Great Pumpkin fails to magically emerge in the pumpkin patch.  

What I thought would never materialize this year, much like the Great Pumpkin, was EPA’s next iteration of its Lead and Copper Rule (LCR). But, alas, the prepublication proposal arrived on October 10 bringing regulatory “gifts” to drinking water utilities and direct consequences for the public clean water utility community. Two key issues within the proposed LCR are important for clean water utilities to pay attention to, particularly in arid states where streams are often dependent on, or dominated by, POTW effluent.  

The first issue is the creation of a lead “trigger level” of 10 µg/L in addition to the existing 15 µg/L lead action level (AL). Working with states, this new trigger level compels water systems to take “progressive, tailored actions to plan upgrades to aging infrastructure and reducing lead in drinking water.”  

The second issue is that systems that trip the trigger level or exceed the AL must take some action, depending on site-specific details (e.g., system’s size and type of corrosion control treatment (CCT)). While EPA doesn’t come out specifying orthoP as the preferred optimal CCT, it is clear the Agency is leaning that direction by requiring those that exceed lead thresholds to reoptimize their CCT, conduct a CCT study, make a recommendation, and receive state approval on an improved CCT path forward.  

EPA acknowledges the use of orthoP will increase the phosphorous loading to downstream POTWs and goes further to suggest the LCR proposal will cost clean water utilities, under low cost scenarios, anywhere from $668,000 to $1,066,000 each year at a 3 and 7 percent discount rate, respectively. Higher cost scenarios predict $1.2 to $1.9 million at the same discount rates.  

EPA continues to minimize the tremendous efforts POTWs have already invested to remove phosphorus and meet increasingly stringent water quality standards by suggesting that the LCR orthoP additions are small (685,000 pounds), relative to phosphorus loadings from other anthropogenic sources (750 million pounds). However, the proposed LCR prohibits water systems from considering othroP simply based on increased downstream loadings and costs to POTWs. 

We know increased phosphorus loadings contribute to eutrophication and can lead to the formation of harmful algal blooms (HABs). We also know there are significant ecological impacts as well as economic impacts from HAB formations to local communities. But we also know that as communities work to address the lead issue, along with all of their other water challenges, rates will rise and affordability challenges will grow.    

Now that the LCR has appeared, we must work to ensure EPA better embraces a holistic approach to managing lead and copper in our aging infrastructure environment. While we must work to protect public health and continue our stewardship efforts to protect the environment, it is imperative that we continue to elevate concerns over the consequences of EPA’s proposal on public clean water utilities.   

Members with questions or comments on EPA’s proposed rulemaking on lead and copper should contact Emily Remmel, NACWA’s Director of Regulatory Affairs, at 202/833-1589. 

Top Stories 

NACWA  Advances Consent Decree Advocacy 

NACWA staff met on several occasions in October with senior EPA Office of Water and Office of Enforcement and Compliance Assurance staff to discuss compliance issues for combined sewer overflow (CSO) communities that reach the end of their long-term control plans (LTCPs). The issue in question is what happens post-LTCP when the clean water agency may still not meet water quality standards during wet weather conditions despite having completed CSO remediation work that was agreed upon. 

A workgroup of interested member utility leaders met in July during NACWA’s Utility Leadership Conference to help guide the Association’s engagement with EPA and the states on post-LTCP compliance. NACWA also hosted a meeting of utility leaders during WEFTEC to facilitate peer-to-peer discussions on consent decree implementation. The Association plans additional meetings with EPA in the near future, including with senior political leaders at the Agency, to continue discussing this critical issue.  

On a related note, NACWA also met with the Department of Justice (DOJ) about the August 21 policy memo that significantly restricts the use of Supplemental Environmental Projects (SEPs) in settlement agreements with state and local governments, including wet weather consent decrees. The new DOJ position comes despite strong pushback from EPA to limiting the use of SEPs.  NACWA is very concerned about the limitations outlined in the memo and outlined those concerns for DOJ.  

Contact: Amanda Waters at 202/530-2758 or

Administration Releases New Regulatory, Enforcement Directives 

The White House released two new administrative orders on October 9 that seek to provide the regulated community with more predictability related to federal agency regulatory guidance documents and enforcement actions.  

The first document, entitled Executive Order on Promoting the Rule of Law Through Improved Agency Guidance Documents, sets out specific requirements for federal agencies to follow when developing and issuing guidance documents.  Among the new procedures agencies must follow is to rescind guidance documents that are never finalized or should no longer be in effect.  EPA’s Office of Water has recently completed a very similar process.  The order also notes that every agency must develop a formal process for issuing guidance documents, which could be helpful as it relates to EPA given the Agency’s often haphazard process for publishing guidance.  

The second document, entitled Executive Order on Promoting the Rule of Law Through Transparency and Fairness in Civil Administrative Enforcement and Adjudication, seeks to ensure all federal agencies promote fairness and transparency during administrative enforcement or adjudication actions.  The order also emphasizes the need for greater cooperation with regulated entities on enforcement issues where appropriate, which is beneficial for utilities that may engage with EPA or other federal agencies on administrative enforcement issues.    

Contact: Nathan Gardner-Andrews, at 202/833-3692 or Nathan Gardner-Andrews

Water Sector Releases Guide, Resource Toolbox on Partnerships  

The Water Research Foundation (WRF), the American Water Works Association (AWWA), and NACWA joined together this month to release a guide that can help drinking water utilities and clean water utilities evaluate potential utility partnerships.    

Water Utility Partnerships: Resource Guide and Toolbox encourages utilities to form partnerships to achieve greater technical, managerial and financial capacity while working to maintain regulatory compliance and provide communities with water services. 

The framework outlined in the resource guide helps utilities to: 

  • Develop partnership teams with shared visions; 

  • Identify and evaluate partnership structures and legal agreements that maximize opportunities; and 

  • Create partnerships that bring value to all parties and the community. 

The resource guide provides workbooks to help utilities considering partnerships. Topics to be addressed by interested organizations include: 

  • Who should be involved in the analysis of partnerships; 

  • How to make a business case for partnerships; and 

  • What differences may exist in partnerships between clean water and drinking water agencies. 

NACWA thanks WRF and AWWA for the opportunity to partner on this important project and looks forward to continued collaboration in supporting the growth of utility partnerships where they are appropriate and make sense for local communities.    


NACWA Supports Improved Instructions for Swimming Pool Discharges 

NACWA supported EPA’s proposed label language for zinc and zinc salts, which are used in swimming pools, hot tubs, and spas, in September 30 comments.  

Since these products can potentially interfere with the biological processes used to treat wastewater if discharged into sewers, or have adverse aquatic impacts if discharged into storm drains, NACWA agreed with EPA’s proposed instructions stating, “[b]efore draining a treated pool, spa, or hot tub, contact your local sanitary sewer and storm drain authorities and follow their discharge instructions.” Read the full story in the Clean Water Current.   

Contact: Cynthia Finley: 202/533-1836 or Cynthia Finley

Pretreatment & Pollution Prevention 

NACWA to Submit Comments on EPA Effluent Guidelines Plan 

EPA announced its Preliminary Effluent Guidelines Program Plan 14 in an October 24 Federal Register notice.  The Preliminary Plan provides the results of EPA’s annual review of effluent guidelines and pretreatment standards and updates of ongoing category studies.  No categories were identified for new or revised effluent guidelines.   

Updates were provided on the Electrical & Electronic Components Category and the cross-category Oil & Gas Extraction Wastewater Management Study.  The Preliminary Plan also provides a brief update on EPA’s ongoing activities as it relates to industrial discharges of PFAS.  

NACWA’s Pretreatment & Pollution Prevention Committee will be reviewing the Preliminary Plan, and the Association will submit comments by the November 25 deadline. Read the full story in the Clean Water Current.  

Contact: Cynthia Finley: 202/533-1836 or Cynthia Finley

NACWA Pretreatment Committee to Discuss Dental Amalgam Rule on Nov. 21 

The NACWA Pretreatment & Pollution Prevention Committee will hold a web meeting on Thursday, November 21, 2:00-3:00 pm Eastern, to discuss implementation of the Dental Amalgam Rule.   

NACWA worked extensively on the rule when it was proposed and succeeded in getting the most onerous requirements for utilities removed from the rule.  However, utilities still have some responsibilities under the final rule, including receiving, reviewing, and retaining the mandatory compliance reports from dental offices.   

With compliance reports from existing dental offices due October 12, 2020, the Pretreatment & Pollution Prevention Committee will have an open discussion on the remaining issues and concerns related to the rule.   

Contact: Cynthia Finley: 202/533-1836 or Cynthia Finley


NOAA Aims to Connect Small/Mid-Size Utilities to Climate Data 

NACWA staff recently participated in a workshop with the National Oceanic Atmospheric Administration (NOAA) titled Filling the Gaps: Climate and Weather Information for Small- and Medium-size Water Utilities. 

This planning workshop was conducted to help guide a NOAA initiative getting underway to better understand the weather and climate information needs of small and medium size water and wastewater utilities, and grow awareness of existing NOAA tools and resources such as the Water Resources Dashboard and National Water Model (NWM). NOAA is also interested in utility perspectives on how to improve and enhance the usefulness of these tools to local utilities. Read the full story in the Clean Water Current  

Contact: Kristina Surfus at 202/8334655 or Kristina Surfus


Stormwater Issues Heat Up as NACWA Provides National Update 

NACWA provided an update on national stormwater trends at the Southeast Stormwater Association’s (SESWA) annual regional conference in Chattanooga, TN on October 11. The two-day event brought together more than 250 stormwater professionals from across the southeast to discuss topics from developments in stormwater management to funding and financing challenges. NACWA appreciates the opportunity to participate in SESWA’s annual meeting and the continued engagement with the regional Association and its members. 

Also developing this month in Oregon, a much-anticipated Circuit Court order was handed down relating to the MS4 Phase II General Permit litigation that was challenged earlier this year by several municipalities and NACWA members in the state. Read the full story in the Clean Water Current   

Contact: Emily Remmel at 202/533-1839 or Emily Remmel

Water Quality 

EPA Holds Public Listening Session on Water Quality Trading

EPA held an in-person and online public listening session October 21 on its recent notice on water quality trading that was published in the Federal Register in September. 

The notice follows an EPA memo from February 2019 that was intended to expand trading options for states, tribes, and stakeholders to consider what approaches will be most effective for improving water quality for nutrients and other pollutants. Read the full story in the Clean Water Current

Contact: Emily Remmel at 202/533-1839 or  

Proposed Methods Update Rule Hits Federal Register 

EPA’s proposed Methods Update Rule was published in the Federal Register on October 22. The proposed rule will update several categories, including: 

  • Revising existing EPA methods; 

  • New or revised methods published by Voluntary Consensus Standards Bodies (VCSB) like ASTM International or the US Geological Survey; and 

  • Methods reviewed under Alternate Test Procedures (ATP). 

Read the full story in the Clean Water Current

Contact: Emily Remmel at 202/533-1839 or Emily Remmel

Hypoxia Task Force Issues Report Summarizing Loads from POTWs 

The Gulf of Mexico Hypoxia Task Force (HTF) issued its second Point Source Progress Report in early October, documenting progress made by HTF states in adopting nutrient monitoring and discharge limits and progress in reducing point source discharges. 

The October 2019 report shows increases in both monitoring requirements and discharge limits in permits for nutrients since the first Point Source Progress Report in 2016. The October 2019 report also includes a newly completed analysis that summarizes nitrogen and phosphorus loads from all major sewage treatment plants in the 12 HTF states discharging to the Mississippi/Atchafalaya River Basin. Read the full story in the Clean Water Current 

Contact: Chris Hornback at 202/833-9106 or