October 17, 2016

NACWA Intervenes in Key Nutrient Litigation

On October 13th, a federal district court in Montana  granted   NACWA’s Motion to Intervene  in litigation challenging EPA’s approval of the state’s general nutrient variance . Montana is the first state in the nation to develop scientifically based criteria for nitrogen and phosphorus with an achievable implementation strategy via a general variance, and NACWA took action to ensure EPA’s approval of the variance is upheld.

In 2014, Montana promulgated numeric nutrient criteria (NNC) for phosphorus and nitrogen. Both EPA and the Montana Department of Environmental Quality (MTDEQ) understood that most National Pollutant Discharge Elimination System (NPDES) dischargers would be unable to meet permit limits based on the very low criteria. Thus, at the same time MTDEQ submitted the criteria to EPA for approval, the State also requested approval of a general variance from the criteria for qualifying dischargers. EPA approved both the criteria and the variance in February 2015. In May 2016, however, an environmental activist group filed litigation  against EPA challenging the approval of the variance. The Upper Missouri Waterkeeper is arguing that EPA’s approval should be overturned as arbitrary and capricious and an abuse of discretion under the Administrative Procedure Act. Without the variance, all NDPES dischargers, regardless of economic impact or technical feasibility, would be required to comply with the State’s low in-stream nutrient criteria concentrations for phosphorus and nitrogen.

If the federal district court strikes down EPA’s approval of the variance, the precedent will have immediate impacts in Montana on entities such as NACWA Member Agency, the City of Bozeman, and could severely limit or eliminate the availability of variances nationwide. A negative decision would have a chilling effect on other states that are contemplating similar approaches for addressing nutrients. It would also have impacts beyond nutrients, including in states that have already adopted extremely low water quality standards for toxics but are using multi-discharger or statewide variances to address technical and affordability-based challenges.

NACWA’s intervention in the case secures its position as a party to the litigation to ensure that the variance approval is defended. MTDEQ , the Montana League of Cities and Towns , and several industry groups have also intervened in the litigation. For more details on the case, see NACWA’s Litigation Tracking.

Dental Amalgam, Stormwater Discussed with White House Budge Office

NACWA met with the White House Office of Management & Budget (OMB) on October 13 to discuss two critical rules under final review – EPA’s pretreatment standards requiring amalgam separators in dental offices and the Agency’s Phase II municipal separate storm sewer system (MS4) remand rule. The dental amalgam rule was proposed  in October 2014. NACWA submitted comments  on the proposal in February 2015. The Association has had many follow-up conversations with EPA and reiterated its main concerns to OMB, which received the final rule from EPA on September 9. Although NACWA has not seen the final rule and how EPA may have addressed the comments filed on the proposal, the Association still maintains that the rule should be withdrawn. EPA has failed to demonstrate that the costs of the rule and the impacts on clean water utilities are justified by its environmental benefits. EPA hopes to publish the final rule in December.

In addition to the dental amalgam rule, NACWA also discussed its position on EPA’s Phase II stormwater rule. EPA proposed the stormwater rule in December 2015 to respond to a federal court ruling on procedural deficiencies with the current Phase II MS4 program. NACWA submitted comments  (as well as comments  on behalf of the National Stormwater Advocacy Network) in March 2016. NACWA reiterated the Association’s position that the new rule should be narrowly tailored to address procedural issues identified by the court with the Phase II permitting process and not make any substantive changes to the stormwater program. In particular, NACWA stressed that the rule should not further define the “maximum extent practicable” (MEP) standard for control of MS4 discharges that currently exists under federal law. While NACWA believes – based on conversations with EPA – that the final rule will only be procedural in nature, the Association also wanted to explain its position directly to OMB. EPA is expected to publish the final rule by mid-November.

Responses Requested to Cybersecurity Awareness Survey

To coincide with National Cybersecurity Awareness Month, NACWA and the national water and wastewater organizations – Association of Metropolitan Water Agencies (AMWA), American Water Works Association (AWWA), National Association of Water Companies (NAWC), National Rural Water Association (NRWA), Water Environment Federation (WEF), and the WaterISAC – request your participation in the Water Sector Cybersecurity Awareness Survey.  The associations – in collaboration with the Water Sector Coordinating Council – are working jointly to determine the awareness, by the water and wastewater systems sector, about available best practices and tools for improving cybersecurity, particularly the security of process control systems.  The groups also want to identify the challenges the sector faces in implementing best practices.  Both utilities and companies that work with utilities on cybersecurity are requested to participate in the anonymous survey, which should take approximately 5-8 minutes. The response deadline is October 28.  Please see Advocacy Alert 10-14 for more information and contact Cynthia Finley, NACWA Director of Regulatory Affairs, with any questions.

Coalition Calls on White House to Address Conservation, Green Infrastructure Rebates

NACWA signed an October 14 coalition letter  requesting that the White House clarify that rebates issued to property owners under municipal programs to encourage use of water conservation measures or green infrastructure are not taxable income. The letter was spearheaded by the WaterNow Alliance and the National League of Cities, and also included a broad array of municipal signatories.

NACWA, along with a group of water organizations, has been working with the Administration, Congress, and the Department of Treasury since 2014 on this issue. Although the Internal Revenue Service (IRS) has not made a definitive ruling on the tax status of these rebate programs, there is growing concern among utilities that homeowners may be hesitant to participate if they could face potential tax liability. NACWA will continue to work with other interested parties to ensure that these important water programs do not face tax penalties.

Georgetown Climate Center Offers Green Infrastructure Tools

Utilization of green infrastructure has gained momentum in cities across the country, but local communities and regional coalitions alike face a litany of challenges when undertaking green infrastructure projects, from coordination issues to measuring success. The Georgetown Climate Center’s Adaptation Clearinghouse has developed a Green Infrastructure Toolkit to help “identify and deploy green infrastructure approaches.”

The Toolkit provides a step-by-step process for urban planners to not only identify and construct a pilot program, but also utilize innovative financing options. It incorporates expertise from a network of experts and representatives from cities across the country to provide best management practices for a wide range of green infrastructure options. In the Toolkit, NACWA Member Agency and Utility of the Future Todayrecipient, Milwaukee Metropolitan Sewerage District, provides an outline of the District’s use of green infrastructure to capture “the equivalent of 740 million gallons of stormwater storage” by 2035.

EPA to Host Stormwater Financing Forum for New England Utilities

EPA will be hosting a free, two-day meeting for New England stormwater utilities. The event, held November 15 and 16 at the University of New Hampshire, will highlight tools, financing options, and local examples to address stormwater compliance costs and help municipalities become more financially and environmentally resilient.  More information is available on EPA’s website.

• Register now for the Region 6 Integrated Planning Workshop, October 27 in Dallas, Texas.  Sponsored jointly by NACWA, the Water Environment Federation (WEF), the Water Environment Association of Texas (WEAT), and the Texas Association of Clean Water Agencies (TACWA), this Workshop will provide an opportunity for all clean water utilities in Region 6 to learn more about Integrated Planning and how best to use it.

• Apply Today for NACWA’s 2017 National Environmental Achievement Awards (NEAA).  The NEAA program honors individuals and Member Agencies that have made significant contributions through outstanding advocacy or innovative projects that positively impact the environment, their utility, their community, NACWA, and the water sector.  The National Environmental Achievement Awards application in its entirety is now available to be completed online.  Applications must be submitted no later than Friday, October 28, 2016.

• Register now for NACWA's 2016 National Clean Water Law Seminar & Consent Decree Workshop, November 1- 4, 2016 in Kansas City, Missouri at the Intercontinental Kansas City. The event pairs for the first time the Association's popular annual Law Seminar with its compelling Wet Weather Workshop- providing an invaluable learning and networking experience for utility leaders and lawyers alike! 

• Calling all NACWA Affiliates! Elevate clean water, showcase your firm's contributions, and build strong relationships with utilities nationwide through sponsorship of NACWA conferences and events. Options include single event sponsorship of the National Clean Water Law Seminar & Consent Decree Workshop - or year-long sponsorship of all other NACWA conferences.

• Apply today to attend the 2017 Water & Wastewater Leadership Center.  The Leadership Center’s executive education curriculum is designed for current and up-and-coming water and wastewater utility CEOs, General Managers, Senior Managers, and Upper-Level Management - from both public and private utilities.  Applications must be received by November 8, 2016.
  

• Save the Date!  Plan now to attend NACWA’s 2017 Winter Conference, February 4 – 7, 2017, in Tampa, Florida.  Next Generation Compliance … Where Affordability & Innovation Intersect will examine the intersection of increasingly stringent regulatory requirements with efforts to innovate – and the overarching challenge of affordability.  NACWA’s 2017 Winter Conference will be co-located with the American Water Works Association (AWWA)/ Water Environment Federation (WEF) Utility Management Conference – with both taking place during the same week at the Tampa Marriott Waterside Hotel.