February 29, 2016

Winter Conference Draws Crowd, Addresses Issues & Innovations

Nearly 300 clean water professionals gathered in San Diego last week to participate in NACWA’s 2016 Winter Conference and engage in important discussions around utility innovation, the future of the Clean Water Act (CWA), and how utilities are embracing new technologies to advance the Water Resources Utility of the Future. Conference participants shared ideas and perspectives in a number of committee meetings, conference sessions, and workgroup discussions.

A key feature of the conference agenda was a roundtable discussion to identify current limitations in the CWA and envision what the Act of the future might look like. Speakers on the panel identified a need for clean water utilities to continue innovative efforts to address water quality challenges that were never contemplated when the CWA was first drafted. Other conference panels and speakers examined how non-regulatory drivers like drought and climate change are forcing utilities to innovate in new ways to address resiliency issues. The conference also featured NACWA’s first ever Smart Utility Roundtable looking at how innovative technologies and the emergence of “big data” is changing the way utilities operate (see related story).

Joel Beauvais, Deputy Assistant Administrator of EPA’s Office of Water, provided a keynote address noting the importance of water issues right now in the public eye, especially in light of the crisis in Flint, Michigan and the ongoing drought in the West. He acknowledged the importance of the innovation taking place in the clean water utility sector – in terms of both technology and finance – and praised the efforts of clean water agencies to advance these issues. He expressed full support for the Utility of the Future effort, but also acknowledged that there needs to be a parallel ‘EPA of the future’ discussion that seeks more innovation in how EPA works with the clean water community to address water quality challenges outside of a regulatory environment.

Many of NACWA committees and workgroups met during the conference, and the Association’s Board of Directors gathered to address important NACWA organizational priorities (see related articles). More information on the Winter Conference is available on NACWA’s website.

Congress Considers Flint Aid, New Water Bills Introduced

Last week Senate leaders considered a compromise aid package to address the lead crisis in Flint, Michigan. Senate leadership hopes that a Flint Aid compromise will allow the body to move forward with other legislative issues that have been stalled since the crises emerged, including the Energy Bill. Efforts to jump-start votes on the Energy Bill and the Flint Aid Package stalled on Thursday due to a Republican hold for additional time to review, but may pick back up quickly. The compromise package was negotiated between Senators James Inhofe (R-OK) and Debbie Stabenow (D-MI) and totals approximately $280 million, including funding for the Drinking Water State Revolving Fund (DWSRF), Water Infrastructure Finance & Innovation Act (WIFIA), and other nationwide programs. The appropriations would be offset by the Department of Energy Advanced Vehicle Technology program. The Flint Aid package is being considered as an amendment to the Energy Bill and to HR.4470, the Safe Drinking Water Act Improved Compliance Awareness Act which seeks to improve current law regarding when and how customers are notified of lead levels by drinking water systems and the EPA. HR. 4470 was introduced in the House this month. It moved quickly and passed on a vote of 416-2, and now awaits Senate action.

On Thursday, Senator Ben Cardin (D-MD) introduced four bills in response to Flint, Michigan. S.2583, the Firm, Unwavering National Dedication to Water Act of 2016 (FUND Water Act) authorizes appropriations for the Clean Water State Revolving Fund (CWSRF) and DWSRF. Under the Act, the CWSRF would be authorized at $5.18 billion in FY 2017 with step increases to $9.06 billion by FY 2021, levels that are reflective of the American Recovery & Reinvestment Act era. DWSRF appropriations would see similarly dramatic increases under this Act compared to current levels. The three other bills Senator Cardin introduced Thursday address water supply infrastructure and lead and copper regulations. S.2588 would provide grants to replace publicly-owned portions of service lines and grants to low-income homeowners to replace private service lines and fixtures. S.2587, would update the Safe Drinking Water Act to require EPA to develop improved lead and copper regulations. Lastly, S.2586 would increase state-federal reporting of elevated lead levels in blood.

High Court Rejects Chesapeake Bay TMDL Challenge

In a decision issued this morning, the U.S. Supreme Court rejected a petition to review the lower court decision in American Farm Bureau, et al. v. EPA. The American Farm Bureau filed a petition  challenging the Third Circuit’s decision, and briefs in opposition were filed by EPA  and the Chesapeake Bay Foundation . Today’s decision puts an end to the Farm Bureau’s challenge of the TMDL, and represents a win for the watershed approach. NACWA and its municipal partners played a key role in the case as an intervenor . See the January 22 Clean Water Current and Advocacy Alert 15-13 for more details on the case and NACWA’s involvement.

Court Accepts Jurisdiction over Consolidated Clean Water Rule

In a 2 to 1 decision , the U.S. Court of Appeals for the Sixth Circuit on Monday accepted jurisdiction over several consolidated challenges of the Clean Water Rule. The multi-circuit case, consolidated in the Sixth Circuit by the Judicial Panel on Multi-District Litigation, represents challenges filed in several federal trial and appellate courts on the final rule defining “Waters of the United Sates” for Clean Water Act jurisdictional purposes jointly issued by EPA and the Army Corps of Engineers in June of 2015.

In agreeing to review the challenges, the Court held that original jurisdiction in the court of appeals is proper under either subsection (E) or (F) of section 1369(b)(1) of the Clean Water Act. Specifically, the Court followed the Supreme Court’s decision in E. I. du Pont de Nemours Co. v. Train   in finding that the rule constitutes an “other limitation” subject to its review under subsection (E), and its own precedent in Nat’l Cotton Council v. EPA , in holding that the rule is a “regulation governing the issuance of permits” and therefore the equivalent of an action “issuing or denying a permit” under subsection (F). The court previously stayed implementation of the rule pending its decision in the matter. Read more about NACWA’s position on the rule in Advocacy Alert AA 15-09 .

Effective Utility Management Review Group Releases Findings

Concluding its year-long review process, the Effective Utility Management (EUM) Steering Group delivered its final report last week to the leaders of the EUM collaborating organizations, including EPA, NACWA and all of the major water sector associations. The Steering Group was formed to review the original Ten Attributes of Effective Utility Management, and the Five Keys to Management Success established in 2007 by the collaborating organizations. The Association of Clean Water Administrators (ACWA) and the Association of Safe Drinking Water Administrators (ASDWA) also participated in the recent update.

The review was initiated in response to several major contextual shifts in the water sector has since 2007, including growing focus on the Water Resources Utility of the Future. The Steering Group’s report includes key updates to the attributes and keys, while leaving the overall structure of the original effort in place. The Steering Group stressed that the Attributes remain highly relevant to utilities today and recommended actions to further promote EUM practices. NACWA – represented on the Steering Group by Board Members Tom Sigmund, Executive Director of NEW Water in Wisconsin and Diane Taniguchi-Dennis, Deputy General Manager of Clean Water Services in Oregon – along with the other collaborating organizations is reviewing the findings. The participating organizations have already initiated a dialogue on how to best implement the recommendations to continue to move the EUM effort forward.

Leisa Thompson Appointed to NACWA’s Board

On February 21, NACWA’s Board of Directors appointed Leisa Thompson, General Manager of the Environmental Services Division of The Metropolitan Council in Minneapolis, Minnesota to a Region 5 seat on the Association’s governing body. Thompson will fill a seat recently vacated by Dax Blake, former Administrator of the Division of Sewerage & Drainage for the City of Columbus Ohio, who recently accepted the position of Deputy Executive Director, Operations at Sanitary District No. 1 in Kentucky. In nominating Thompson for appointment to NACWA’s Board, the Association’s Nominating Committee cited her strong understanding of the issues and challenges facing the water sector, both regionally and nationally. NACWA is pleased to welcome Leisa Thompson to its Board of Directors.

Board Adopts Strategic Plan, Advances Key Partnerships

NACWA’s Board of Directors met last week as part of this week’s Winter Conference. Led by President Adel Hagekhalil, Assistant Director of the City of Los Angeles – LA Sanitation, the Board convened a wide ranging discussion of the Flint, Michigan water crisis, addressed important Association governance issues, and continued collaboration with key partners. Recent months have found the Association’s Board and committee leadership engaged in thoughtful discussions focused on the Association’s Strategic Plan. These discussions culminated in the adoption of a new Plan  on February 21. The Plan includes key guidance for NACWA’s advocacy, membership and communications efforts and will provide the overall strategic direction for the Association for the next 3 years. The Board also acted to approve the Association’s 2015 Audited Financial Statements.

Board Members welcomed the opportunity to engage with important strategic partner organizations as part of their meeting this week. Eleanor Allen, CEO of Water for People, discussed the key priorities her organization is working on joined President Hagekhalil in signing a Memorandum of Understanding . The Board also heard from Radhika Fox, CEO of the U.S. Water Alliance; Melissa Meeker, Executive Director of WateReuse and the Water Environment Research Foundation; and Debra Coy, a Partner with XPV Capital Corporation. All of these discussions highlighted ways in which NACWA can continue collaborative work with a variety of stakeholders. The Board of Directors will next meet in April in conjunction with the National Water Policy Forum, Fly-In & Expo.

Targeted Advocacy & Litigation Projects Approved

As part of its meeting in San Diego last week, NACWA’s Board of Directors approved a number of critical projects to receive funding from the Association’s Targeted Action Fund (TAF). Projects receiving funding include participation with the Water Environment Federation (WEF) and the Water Environment Research Foundation (WERF) in a Leaders Innovation Forum for Technology (LIFT) scholarship program to support travel by utility employees to learn about new and innovative technologies – and a strategic review of NACWA’s triennial financial survey. In the legislative arena, the Board endorsed a project aimed at improving coordination between federal flood control projects and municipal stormwater regulatory efforts as part of the reauthorization of the Water Resources Development Act (WRDA), expected later this year.

NACWA participation in an important new litigation matter that could impact the liability of clean water utilities under the Clean Water Act (CWA) was also approved. The Association will be engaging on an amicus brief before the U.S. Court of Appeals for the Ninth Circuit in litigation addressing a novel theory of CWA liability based on groundwater connection, even if there is no direct discharge to a navigable waterbody. The case, Hawaii Wildlife Fund v. County of Maui, addresses the question of whether the “conduit theory” of liability involving groundwater is valid under the CWA. NACWA will be joining a coalition in opposition to this theory of liability. The TAF provides critical support for NACWA initiatives that help to advance the Association’s work in a number of important areas.

NACWA Committees Address Advocacy Priorities

Many of NACWA’s standing committees and issue-specific workgroups met last week in San Diego as part of the 2016 Winter Conference, providing an important forum for Association members to discuss pressing advocacy priorities and initiatives. The Association’s Legislative & Regulatory Policy Committee, which serves as the coordinating body for all of NACWA’s other standing committees, addressed a variety of key issues. Led by Chair David St. Pierre, NACWA Secretary and Executive Director of the Metropolitan Water Reclamation District of Greater Chicago, the Committee explored three important topics: the appropriate regulatory status of recovered materials from the wastewater stream; how to best establish a partnership program between large utilities and smaller utilities to share resources and knowledge; and how to address concerns over low use in some states of Clean Water State Revolving Loan Funds (CWSRF).

Andrew Sawyers, Director of EPA’s Office of Wastewater Management, participated in the discussion of these issues and provided the Agency’s perspective. The Committee also learned of innovative approaches that many states are taking to encourage greater use of SRF funds from Alexandra Dunn, Executive Director & General Counsel of the Environmental Council of the States (ECOS).

A number of other NACWA committees also met during the conference including the Water Quality Committee, the Utility & Resource Management Committee, the Legal Affairs Committee, the Facility & Collection Systems Committee, and the Stormwater Management Committee. The committees covered a range of topics including nutrients, effective utility management, water infrastructure financing, current clean water litigation issues, integrated planning, blending, and new EPA stormwater regulations. Additional information on all the committees and handouts from the meetings are available on NACWA’s website. Member Agency and Affiliate representatives can join Association committees here.

Many of the Association’s workgroups also met during the conference to address specific, issue-oriented topics, including the Industry of the Future Workgroup, the Small & Medium Utility Workgroup, the Water Quality Trading Workgroup, the Water Reuse Workgroup, and the Water Finance Workgroup. These targeted workgroups provide an important opportunity for Association members to engage in greater depth on important topics.

A central feature of the committee meetings at the conference was more focus on engaging committee members in discussion about key issues. This effort will continue at future meetings, ensuring an opportunity for more dialogue among members.

Utility Leaders Share Innovative Approaches to Challenges in Region 9

Clean water utility managers exchanged ideas and tackled difficult issues facing California and Hawaii during an intimate lunch forum during NACWA’s Winter Conference last week. Region 9 utilities find themselves grappling with incredible drought-related water supply challenges, while also complying with increased regulatory requirements. Affordability, raising rates, the need for regulatory flexibility, and watershed/creative solutions were common threads throughout the discussion. At the forum, utilities provided compelling descriptions of innovative projects they are undertaking to make their local communities more sustainable.

• Central Contra Costa Sanitary District opened a recycled water refilling station that, at its peak, attracted over 500 cars per day and increased acceptance of water reuse.
• Monterey Regional Water Pollution Control Authority is planning a water reuse project that capitalizes on its proximity to a landfill, using landfill gas, organics diversion and co-digestion to be net energy neutral.
• The Los Angeles County Sanitation District is partnering with the Metropolitan Water District on a 150 MGD indirect potable water reuse project, exemplifying how partnerships are critical to sustainable water supplies.
• Honolulu Department of Environmental Services has a waste to energy plant that accepts sewage sludge to produce energy and divert that waste stream from limited landfill space.

NACWA believes that utilities on both coasts – and throughout the country – impressively maintain a high level of service in the face of remarkable environmental and regulatory pressures. Regionally-focused forums, like the one held last week in San Diego, help the Association better understand regional issues and better serve its members nationwide.

Smart Utilities & Big Data Explored at Roundtable

NACWA hosted a unique Smart Utility Roundtable during its Winter Conference to explore how innovative monitoring and sensor technologies, and the emergence of ‘big data’, are on the cusp of changing the way utilities operate. Nearly 20 stakeholders from the utility community; technology and equipment providers; EPA; and the consulting and private finance communities participated in a dialogue focused on the exploding interest in data collection and analytics – and the potential for these new approaches to advance clean water protection. A keynote earlier in the day by Joe Whitworth, President of The Freshwater Trust, set the stage for the dialogue by underscoring the importance of better quantifying conservation efforts and spending with improved data collection and analysis.

The Smart Utility Roundtable was intended as an initial discussion to explore the opportunities and challenges in this space, and the role that NACWA should play. During the discussion, Andrew Sawyers, Director of EPA’s Office of Wastewater Management, stressed the Agency’s interest in increasing the deployment of technologies to improve water quality assessment and compliance. Sawyers also noted that collaboration among EPA and the clean water community to advance these technologies would, no doubt, increase trust levels and lead to potentially more flexible approaches and accelerated progress on improving the quality of the nation’s waters.

NACWA distributed a discussion paper on these issues via Member Update 16-02 and encourages members to review the paper and provide feedback on the Association’s engagement in this arena. NACWA plans to reconvene the stakeholders from the roundtable to continue the dialogue and will work to develop an issue paper and compendium of case studies in the coming year.

Water Rebate Legislation Introduced

On Thursday, California Representatives Jared Huffman (D-San Rafael) and Dana Rohrabacher (R-Costa Mesa) introduced a bill to that would amend the federal tax code to clarify that rebates for water efficiency and stormwater management at residential properties are exempt from gross income tax. The Water Conservation Rebate Tax Parity Act clarification applies to rebates received from any entity engaged in the provision of water to the public through pipes or other constructed conveyances – or engaged in the collection, treatment, management, or disposal of stormwater or wastewater generated by the public. In introducing the legislation, Representative Huffman noted that he and other Democrats sent a letter in December to the U.S. Treasury and Internal Revenue Service seeking clarity on whether home water conservation and runoff management improvements are taxable income, and that clear guidance has not been provided.

House Subcommittee Holds Hearing on Army Corps Annual Reports

On Wednesday, the House Subcommittee on Water Resources & the Environment held a hearing to review the U.S. Army Corps of Engineers’ annual Reports to Congress on Future Water Resources Development . The annual reports are required under the 2014 Water Resources Reform & Development Act (WRRDA).

Subcommittee Chairman Gibbs (R-OH) discussed the reforms that were enacted in the 2014 WRRDA. Section 7001 of the Act requires the Secretary of the Army to publish an annual request for proposals from non-federal interests for new project authorizations, new feasibility studies, and modifications to existing Corps projects. In 2015, the request for proposals was published in May and proposals were due in September. Just 61 projects were considered in 2015. Subcommittee members have voiced concerns that the process is too complicated and that Army Corps’ outreach to non-federal entities varies significantly by district.

Chairman Gibbs and fellow Subcommittee members expressed frustration that the Army Corps has yet to issue more than 40% of the implementation guidance from WRRDA 2014. The Subcommittee intends to move a smaller, bipartisan WRDA bill this year that will include clarifying and technical changes and authorize new projects from the annual reports. NACWA, supported by a recently-approved Targeted Action Fund (TAF) project (see related article), will continue to stay closely involved in WRDA discussions as they advance. Association members wishing to weigh in on WRDA are asked to contact Kristina SurfusThis e-mail address is being protected from spambots. You need JavaScript enabled to view it .

Presidential Memorandum the Subject of House Subcommittee Debate

The House Natural Resources Subcommittee on Oversight & Investigations held a hearing Wednesday on President Obama’s Memorandum issued in November 2015 to streamline mitigation approaches across federal agencies and establishing a “net benefit” and “no net loss” goal. Republican members expressed strong concern that the Memorandum was an example of executive overreach and an attempt to establish stricter standards that would discourage development. There were particular concerns about using terms like “landscape”, “watershed”, and “irreplaceable character” that were not defined, as well as how the Memorandum affects standards set by existing statutes. The witnesses representing the Administration stated that the Memorandum is only an internal guidance document bound by existing laws and statutes and that it seeks to increase coordination among agencies to reduce uncertainties and standardize mitigation policies. The witnesses and Democratic members also repeatedly mentioned the history and success of mitigation banking in attracting investment from the private sector – and how it has helped greatly reduce permitting times – as evidence that the Memorandum does not slow development.

NACWA will closely follow the implementation of this Memorandum. Changes to agency mitigation policies to achieve “no net loss” and prioritizing “advanced compensation” for mitigation could have an effect on water quality trading. A recording of the hearing can be found here.

Americans Willing To Invest In Water Infrastructure

The Value of Water Coalition last week released the results of a new national poll on public attitudes and concerns about water. The poll found that Americans are deeply concerned with the state of water infrastructure that we are all rely on. NACWA, along with thirty other water utilities, companies, and policy organizations across the country, is a member of the Value of Water Coalition.

Respondents were evenly split (47/47), initially, with their willingness to personally spend more on their water bills for increased investment in water systems. Once poll respondents received additional information about water issues, 60 percent of Americans are in favor of paying more to invest in water infrastructure—an increase of 13 percent. The poll also showed that Americans found investment in water infrastructure to be an important public issue, especially in light of the Flint water crisis, with 95% of respondents saying that it was important or very important for public officials to invest in water systems to prevent similar situations.

• Applications  are now being accepted for NACWA's Peak Performance Awards program for NPDES compliance in the 2015 calendar year.
• Register for the March 16 Hot Topics in Clean Water Law Web Seminar , scheduled for 2:00 PM - 3:30 pm Eastern. The complimentary Seminar will cover the impact of Justice Scalia's passing on upcoming Clean Water Act cases before the U.S. Supreme Court, as well as the ongoing Mississippi River nutrients litigation over numeric nutrient criteria and EPA necessity determinations.
• Register for the National Water Policy Forum, Fly-In & Expo , April 11-13, 2016 in Washington, DC. In light of the drought in the West and in light of the crisis in Flint, Michigan, it is critical for federal policymakers to hear from you!
• Become a supporting organization of Water Week 2016! The week of April 10, 2016 has been designated as a week for the water sector to work together to highlight critical water issues shared by all states, cities, and communities.

Have you gotten involved in NACWA’s online community – Engage™? Ranked high in value a recent survey of NACWA's members, Engage™ offers solutions to utility challenges and a platform to network with colleagues. If you haven't yet engaged in this valuable member resource, now is the time! Recent discussions include:

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Why not add to the conversation and join our community? Get engaged today! If you have question on how to use this unique online community, contact Robin DavisThis e-mail address is being protected from spambots. You need JavaScript enabled to view it at 202/533-1802.