July-August 2018 Regulatory Update
Climate Change: Inherently a Water Issue
During NACWA’s recent Utility Leadership Conference in Boston, the Association’s Board of Directors approved a Statement of Principles on Climate & Resiliency - a living document developed by NACWA’s leadership and the Climate & Resiliency Committee that will be revised and updated as necessary. This Statement of Principles is aimed to guide NACWA staff in their daily advocacy efforts and serve as a foundational tool for the Climate & Resiliency Committee moving forward in its own advocacy initiatives.
Conversations on developing our Statement of Principles began when the Trump Administration took office, bringing with it a marked change in the federal approach to dealing with climate policy. NACWA staff, the Legislative & Regulatory Policy Committee, and the Climate & Resiliency Committee deliberated on whether the Association could and should engage on climate-related issues with Congress, the U.S. Environmental Protection Agency and the Trump Administration.
We are living in a changing climate and witnessing altered precipitation patterns, intensified storm events, increased flooding, prolonged drought and fires, and continually rising sea levels. Traditionally located in low-lying areas, clean water utilities are often impacted by these events, requiring them to make acute and long-term resiliency decisions as well as quickly respond to these unprecedented challenges when a potentially-disastrous weather event is on the horizon.
These critical resiliency decisions - and the daily steps utilities make to protect public health and the environment - not only impact the conditions under which utilities operate, but they also should guarantee the public clean water community a seat at the table when key federal climate-related policies are considered. This may seem obvious to some, but it is not always assured given how politicized and divorced from day-to-day realities climate change conversations can be in the U.S.
In addition to the national issues, the Statement of Principles affirms that climatic change impacts are highly localized, and that flexibility at the state and local levels is even more important to ensure the continued protection of public health and the environment. In recognizing this, the Statement of Principles supports resiliency decisions made at the state and community level that reflect unique local conditions and are in the best interest of the circumstances at hand. These local discussions on how to revise long-standing laws and regulations will be key to managing and mitigating climatic events moving forward.
NACWA has an important role to play in elevating thoughtful conversation about our changing climate and its impact on water resources. This will remain a challenging conversation at the federal, state, and local level, but NACWA looks forward to containing its proactive engagement and supporting our members in these efforts.
Contact: Kristina Surfus at 202/833-4655 or ksurfus@nacwa.org.
Top Stories
EPA Acknowledges NACWA Concerns, Commits to Actively Engage Municipalities on Long Island Sound Studies
EPA Regions 1 and 2 have been working outside of the total maximum daily load (TMDL) process for some time to develop numeric nutrient targets based on narrative water quality criteria in Long Island Sound (LIS). In response to concerns NACWA raised in an April letter, the Regional Administrators for EPA Regions 1 and 2, in an August 14 letter to NACWA’s CEO, acknowledged NACWA’s concerns and committed to working with municipalities on this issue moving forward. This is a critical step, as progress on this issue in the LIS could have beneficial impacts on how EPA and states regulate nutrients nationwide.
Though not clear from the letter, the Agency seems to have stopped work on the final element of the effort – the development of the actual targets. EPA notes in its letter that the studies it is conducting are “neither regulations nor guidance, and will not impose legally binding requirements on EPA, States, Tribes, or the regulated community,” but are instead “intended as a source of relevant information” for use by water quality managers.
NACWA first engaged on this issue when it learned that states and EPA Region 1 were exploring enforceable permit limits based on these studies. EPA’s assurance that these studies are not a proposed TMDL or water quality criteria only underscores NACWA’s initial concern – EPA was developing information outside of the normal regulatory process that, while not imposing requirements directly, could be used to develop enforceable permit limits. Any such studies must be subjected to the same types of public comment and input processes that a full TMDL process would involve, and EPA seems to be signaling that it will provide greater access to this information.
Nutrient control efforts in the LIS have been guided by a 2000 TMDL for dissolved oxygen that has led to significant reductions in the nitrogen loadings to the Sound led largely by the clean water community – an accomplishment recognized by EPA in its August 2018 letter and in earlier communication on the issue. The August 2018 letter does note that EPA “has, and will continue to, actively engage the states, the municipal community, and other stakeholders,” but to date NACWA and its members have not had the same level of involvement as other stakeholders.
EPA has also not been holding itself to the same standards for engaging the public as it would in a TMDL context. The letter notes that key deliverables from the studies will be made available in the coming months for a public comment process and that the Agency is “dedicated to ensuring an open and deliberative engagement.”
NACWA will be discussing next steps with its members discharging to the LIS in the coming weeks, including a possible meeting with EPA staff from Regions 1 and 2.
Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.
Enforcement Chief Signals Greater Focus on Compliance Assistance
The head of EPA’s enforcement office issued a letter August 21 announcing the Agency’s plans to change its National Enforcement Initiatives program into a National Compliance Initiatives programs, signaling a greater focus from EPA on providing compliance assistance as an alternative to enforcement in certain situations. This change echoes recent calls from NACWA for a “compliance assistance first” approach by EPA in appropriate circumstances, and the Association applauds this move by the Agency.
The memo from Susan Bodine, Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA), to EPA Regional Administrators and senior staff notes that part of the shift to a national compliance program is to better communicate that improved compliance is OECA’s ultimate goal, and that increased enforcement actions are not the only tool for achieving this goal.
The memo also suggests that, starting in Fiscal Year (FY) 2020, the previous National Enforcement Initiative on municipal sewage and stormwater will cease being an identified priority and instead become part of OECA’s general core programs. The memo notes there has already been significant progress in addressing these compliance issues.
According to the memo, EPA will begin the process of developing its FY 2020 – 2023 National Compliance Initiatives later this year, with a list of proposed initiatives published for public comment in late 2018. NACWA will stay actively engaged with EPA during this process and will inform members when the public comment period begins.
Contact: Amanda Waters at 202/530-2758 or awaters@nacwa.org.
Emerging Contaminants
NACWA Weighs in On EPA Request for PFAS Input
After EPA hosted the PFAS National Leadership Summit and Engagementin Washington, DC last May, EPA requested public comments on how to manage per- and polyfluoroalkyl substances (PFAS) and the growing suite of similarly related chemical constituents.
NACWA submitted comments on July 20 that support federal leadership from EPA in developing an appropriate response that reflects the risks posed by PFAS. 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 Clean Water Act. Read the full story in the Clean Water Current.
Contact: Emily Remmel at 202/533-1839 or eremmel@nacwa.org.
Energy & Resource Recovery
Clean Energy Rule to Replace Clean Power Plan
EPA has released a pre-publication version of its Affordable Clean Energy (ACE) rule, which would replace the 2015 Clean Power Plan (CPP). The goal of the CPP was to reduce carbon dioxide emissions from electrical power generation, but it is facing legal challenges by a coalition of 27 states that argue the Plan exceeds EPA’s authority under the Clean Air Act. Read the full story in the Clean Water Current.
Contact: Cynthia Finley at 202/533-1836 or cfinley@nacwa.org.
NACWA Requests that EPA Adjust 2018 Renewable Fuel Standard Goals
In comments submitted August 17 regarding the Renewable Fuel Standard (RFS) program’s targets for 2019, NACWA approved of EPA’s increased cellulosic biofuel targets but asked that the Agency consider methods for stabilizing the market for these fuels. Clean water utilities that digest their biosolids and produce biogas can produce compressed natural gas that qualifies as a cellulosic biofuel in the RFS program, allowing revenue to be earned through the program. Read the full story in the Clean Water Current.
Contact: Cynthia Finley at 202/533-1836 or cfinley@nacwa.org.
Facilities & Collection Systems
EPA to Hold Stakeholder Roundtable on Blending Rule
EPA is planning a September 13 Stakeholder Roundtable in Washington DC to gather input for the development of a proposed rule on blending of peak wet weather flows. NACWA will participate in the invitation-only Roundtable, and other groups represented will include the Water Environment Federation (WEF), environmental activist groups, states and tribes, and public health experts. NACWA’s Blending Workgroup held calls on July 12 and August 27 to discuss the Roundtable and how the Association should advocate for its members’ interests as the rule moves forward. Read the full story in the Clean Water Current.
Contact: Cynthia Finley at 202/533-1836 or cfinley@nacwa.org.
Funding and Finance
EPA Announces Record Interest for 2018 WIFIA Funding
EPA announced August 16 that it received a record number of letters of interest for the Water Infrastructure Finance and Innovation Act (WIFIA) program.
The Agency received 62 letters of interest, representing a collective request for $9.1 billion in funding for a wide variety of water infrastructure projects. The requests come from 26 different US jurisdictions and cover a broad spectrum of projects, including wastewater, drinking water, water recycling, desalination, stormwater management, and combined approaches. Read the full story in the Clean Water Current.
NACWA Hosts Technical Session Tailored to Affordability, Integrated Planning, and Increasing Regulatory Mandates
NACWA hosted a technical session on August 6, on integrated planning, affordability, and the increasingly stringent regulatory requirements that are directly impacting the municipal clean water community.
The technical session was part of a broader two-day Transformative Issues Symposium hosted by the American Water Works Association (AWWA) and the Water Environment Federation (WEF) that centered on water affordability across the U.S. Read the full story in the Clean Water Current.
Contact: Emily Remmel at 202/533-1839 or eremmel@nacwa.org.
EPA Extends Buy America Waiver for Stainless Steel Nuts and Bolts
EPA signed a Final Extension on August 24 of the Short-Term National Product Waiver for Stainless-Steel Nuts and Bolts used in Pipe Couplings, Restraints, Joints, Flanges and Saddles. This waiver will be in place for 18 months after the date of signature and applies to projects funded through the Drinking Water and Clean Water State Revolving Funds. Upon expiration, the waiver will not be renewed. Read the full story in the Clean Water Current.
Pretreatment & Pollution Prevention
NACWA Pretreatment Committee: Clarifications Needed for Dental Amalgam Rule
Members of NACWA’s Pretreatment & Pollution Prevention Committee held a conference call on July 16 to discuss issues with implementation of the Dental Amalgam Rule. The rule requires that all dental offices install a dental amalgam separator and follow best management practices if they place or remove dental amalgam. The rule was published in June 2017 and will go into effect for existing dental offices in June 2020. Read the full story in the Clean Water Current.
Contact: Cynthia Finley at 202/533-1836 or cfinley@nacwa.org.
Regulatory Policy
NACWA Comments on EPA’s Transparency in Science Proposal
NACWA submitted public comments August 16 on EPA’s proposed Strengthening Transparency in Regulatory Science rule. NACWA asserts in its comments that the Association and its members have long advocated for objective, evidence-based science to serve as the foundation for any EPA action, including the many Clean Water Act regulations that guide the management of wastewater and municipal stormwater in the U.S. The comment letter also stresses the need to increase transparency during the regulatory process wherever possible. Read the full story in the Clean Water Current.
Contact: Emily Remmel at 202/533-1839 or eremmel@nacwa.org.
NACWA Comments on EPA’s Cost Benefit Proposal
NACWA submitted comments on August 13 in response to EPA’s recent advanced notice of proposed rulemaking (APRM), Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process, that sought public comment on how the Agency should consider costs and benefits and whether the Agency can increase consistency and better improve transparency across all environmental statutes. Read the full story in the Clean Water Current.
Contact: Emily Remmel at 202/533-1839 or eremmel@nacwa.org.
NACWA Lead and Copper Workgroup Addresses Orthophosphate as Corrosion Control Method
NACWA recently held an informal conference call with members of the Association’s Lead and Copper Rule Workgroup to discuss corrosion control techniques, with a particular focus the addition of orthophosphate as a control measure.
Earlier this year, Colorado’s Department of Public Health and Environment required Denver Water to add orthophosphate to its drinking water supply for corrosion control by 2020, rather than continuing the more-flexible and alternative corrosion control techniques to address lead concerns (e.g., pH and/or alkalinity adjustments). In making this move, higher costs will be placed on wastewater treatment facilities to remove the excess phosphorus and there will also be secondary impacts with water reuse/recycling and landscape irrigation. Read the full story in the Clean Water Current.
Contact: Emily Remmel at 202/533-1839 or eremmel@nacwa.org.
Stormwater
Court Ruling Opens Potential New Front in Battle Over EPA Stormwater Regulations
A federal district court decision on August 9 gave environmental activist groups their first victory in a push for EPA to broaden the universe of stormwater dischargers subject to Clean Water Act National Pollutant Discharge Elimination System (NPDES) permits, using the residual designation authority (RDA) in section 402(p)(2)(e) of the CWA. Read the full story in the Clean Water Current.
Contact: Amanda Waters at 202/530-2758 or awaters@nacwa.org.
Stormwater Management Committee Explores Permitting Issues
NACWA’s Stormwater Management Committee held a conference call in July to discuss several issues of concern to stormwater managers including a national legislative update, a discussion on “windshield survey” inspections of septic systems within MS4s, and an update on the litigation continuing in Massachusetts and New Hampshire. Read the full story in the Clean Water Current.
Contact: Emily Remmel at 202/533-1839 or eremmel@nacwa.org.
Water Quality
EPA’s National Study of Nutrient Removal and Secondary Technologies Questionnaire Coming Soon
As EPA initiates a multi-phase study of nutrient removal at publicly owned treatment works - first reported by NACWA in 2016 - EPA is making final preparations for the first phase of its study, which includes an online interactive screening questionnaire to be distributed the last week of September 2018. Read the full story in the Clean Water Current.
Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.
Waters of the U.S. (WOTUS)
Court Strikes Down EPA’s Clean Water Rule Delay; 2015 Rule Effective in Most States
A federal district court struck down EPA’s two-year delay on implementing the 2015 Obama-era Clean Water Rule on August 16.
The court held that the Trump Administration’s extension of the rule’s effective date violated the Administrative Procedure Act’s notice-and-comment requirements because the Agency limited the opportunity for comment to only the effective date of the rule but did not allow comment on the merits of the 2015 rule or the previous rule, which the extension effectively reinstated.
EPA issued a statement on August 29, stating that it will comply with the court’s decision but is also seeking a stay of the ruling.
The decision reinstates the 2015 rule in 26 states. However, it will have no effect in the other 24 states, which are subject to prior court orders blocking implementation of the 2015 rule. This is creating confusion among the regulated community and leading a number of states and regulated parties to seek further clarification from EPA and the courts on how Clean Water Act jurisdictional determinations will be made.
For more details, see the Summer 2018 Legal Update or contact Amanda Waters at 202/530-2758 or awaters@nacwa.org.
EPA Issues Supplemental Notice on Repeal of Clean Water Rule
EPA published a supplemental notice in the Federal Register on July 12 providing additional clarification and reasoning for its repeal of the 2015 Clean Water Rule. EPA originally noticed its intent to repeal the Clean Water Rule in July 2017. The supplemental notice is being issued, according to EPA, “to clarify, supplement and give interested parties an opportunity to comment on certain important considerations and reasons” for withdrawal of the 2015 rule.
NACWA did not submit comments on the supplemental notice but previously submitted comments to EPA making clear that existing CWA exclusions for wastewater treatment and stormwater management systems must be included in any new regulation. NACWA looks forward to reviewing and commenting on EPA’s more substantive, revised definition of Waters of the U.S. proposal when it is released in the coming months.
Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.