Last week, Senate leaders agreed on a legislative path forward for voting on
S. 2848, the Water Resources Development Act of 2016 ( WRDA), with passage expected Tuesday or Wednesday of this week. The bipartisan legislation is expected to garner as many as 80 votes in favor and contains many legislative priorities which NACWA members have advocated on for several years, including:
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Codification of Integrated Planning and other important Clean Water Act reforms that address affordability challenges;
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A feasibility study for a low-income ratepayer assistance program;
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A measure strengthening the links between flood control projects and municipal stormwater management programs;
- Funding for Flint, Michigan and other communities to deal with lead service line challenges;
- Grant assistance for sewer overflow communities; and
- Establishment of a Clean Water Trust Fund based on voluntary product labeling for investments in water and wastewater infrastructure.
Should the Senate pass this package, it will represent the most significant bipartisan legislative progress to date on these proposals. It will also go a long way to achieving many key goals in NACWA's current Strategic Plan.
Between now and Tuesday, Senators will have an opportunity to come forward with amendments that could potentially disrupt a Tuesday vote, but it appears there is consensus among Democrats and Republicans to move forward and no controversial amendments are expected.
Over in the House, legislative efforts are underway to prepare the House WRDA package (H.R. 5303) for possible floor consideration during the September work period, including a hearing being held on Thursday in the House Transportation and Infrastructure Committee on remaining flood control-related projects that could be included in the House package. Should the House pass its WRDA package in September, a conference committee could work to reconcile the respective Senate and House packages in time for enactment final bill during a December Lame Duck session
NACWA recently distributed an Advocacy Alert asking Association members to contact Senators to urge support for WRDA. Please continue to weigh in with your Senators to let them know this legislation is critical to clean water agencies and the communities they serve. Please contact Senior Director, Legislative Affairs, Pat Sinicropi at with any questions.
Water Sector Groups Meet with DOE Secretary Moniz
The Water Research Foundation (WRF) took the lead in organizing a meeting with the Secretary of the Department of Energy (DOE), Ernest Moniz, and several of his top staff to discuss energy-water nexus issues and ensure that they remain a priority as the Administration transitions post-election. The other organizations participating included NACWA, the Water Environment & Reuse Foundation (WE&RF), the Water Environment Federation (WEF), the Association of Metropolitan Water Agencies (AMWA), the American Water Works Association (AWWA), and the National Association of Water Companies (NAWC).
Moniz expressed an interest in greater institutional integration between the electric industry and water/wastewater utilities, where the latter are large energy users, but increasingly finding ways to reduce and produce energy, as well. Ideas such as a Water Information Agency, similar to the independent Energy Information Administration that gathers data on key energy production and trends would be useful, were also raised. NACWA briefly discussed the relevance of the Utility of the Future effort as Moniz mentioned similar efforts on a separate track in the energy sector.
Moniz encouraged the organizations to develop a white paper outlining energy-water nexus priorities for the water sector to guide the transition team for the next administration. The groups agreed to undertake this effort.
A special thanks is owed to WRF for taking the lead in organizing the meeting, crafting talking points, a joint press release and agreeing to gather the groups' thoughts and priorities into a white paper to be delivered to DOE. NACWA will ensure its members' advocacy priorities are included in the white paper and that water-energy nexus issues remain a growing priority for DOE.
NACWA Discusses Big Data, Smart Utility Issues with Senior Water Office Staff
NACWA met with Andrew Sawyers, Director of the Office of Wastewater Management (OWM) in EPA’s Office of Water, and other senior OWM staff recently to discuss the Association’s ongoing efforts on the smart utility front. The Association is working to ensure that federal policies and regulations enable utilities to take advantage of the latest monitoring and analysis technology, but within a regulatory environment that provides sufficient flexibility to explore such innovative solutions.
Earlier this year NACWA formed a Smart Utility Task Force, chaired by Biju George, Chief Operating Officer for DC Water, to explore the opportunities and challenges associated with collecting and analyzing new data and information on all aspects of wastewater utility operations and management. Sawyers participated in discussions during NACWA’s 2016 Winter Conference on smart utility issues, and the recent meeting was intended to brief him on the latest developments and work planned by the Task Force.
EPA remains very interested in seeing advanced monitoring and decision support systems in use by utilities across the country, but their current focus is on issues such as improved compliance, reduced overflows, and reductions in basement backups. NACWA’s Task Force is looking for additional utility participants to provide their input. Please contact Chris Hornback, Chief Technology Officer, if you or a member of your staff would like to participate.
WSCC Discusses Response Procedures for Cybersecurity Incidents
The Water Sector Coordinating Council (WSCC) held its quarterly meeting on September 7 and addressed cybersecurity issues. During the meeting, the WSCC and EPA discussed the Agency’s draft coordination procedures for responding to a significant cybersecurity incident in the water sector. EPA is required to establish these procedures in Presidential Policy Directive (PPD) 41 – United States Cyber Incident Coordination. The WSCC was also briefed on recent cyber and physical threats to water systems by the WaterISAC.
NACWA’s two representatives to the WSCC – Patty Cleveland, Assistant Regional Manager with the Trinity River Authority, Texas, and Chair of the WSCC, and Karen Pallansch, Chief Executive Officer of Alexandria Renew Enterprises – both participated in the meeting. The WSCC oversees utility partnership with federal agencies on matters related to security and emergency preparedness. For more information, please contact Cynthia Finley, Director, Regulatory Affairs.
Court Requests EPA and State Amicus Briefs in Permit Shield Litigation
The U.S. Court of Appeals for the Fourth Circuit issued a request last week that EPA and the State of West Virginia file amicus briefs to assist the court in resolution of the permit shield issue in Ohio Valley Environmental Coalition v. Fola Coal. The request suggests the court is giving significant consideration to the case, and in particular to the question of how broadly the permit shield extends to permits issued under the Clean Water Act (CWA). NACWA is participating in the litigation to help protect the permit shield concept.
The appeal before the Fourth Circuit arose from a decision by a lower federal district court that a National Pollutant Discharge Elimination System (NPDES) permit provision that incorporated water quality standards by reference actually created an independently enforceable effluent limitation, compliance with which is a prerequisite for protection under CWA §402(k). Section 402(k) establishes that compliance with a NPDES permit is compliance with the CWA and provides a shield from citizen suits (the permit shield).
The district court’s decision, if not overturned, could have far reaching impacts on NPDES permittees, as many permits contain catch-all provisions requiring compliance with water quality standards. The decision also upends the NPDES permitting process, allowing for citizen groups to collaterally attack permits after issuance and potentially exposing permittees to civil penalties for violating permit limits imposed after the fact.
NACWA filed a brief in April as part of a coalition of amici to highlight the broad national impacts of the district court’s decision. Oral arguments in the case are scheduled for October 27, 2016, and NACWA will report on any developments.
Legal Challenges Mount to Massachusetts Small Stormwater Permit
A number of legal challenges have been filed in recent weeks to EPA’s 2016 Massachusetts Small Municipal Separate Storm Sewer System (MS4) General Permit, raising the likelihood that the permit will force federal court consideration of a number of key elements of EPA’s stormwater program. The permit was finalized in April 2016 and will become effective July 1, 2017. After the public comment period, EPA updated the final permit, but many permittees felt those changes failed to address key municipal concerns. The permit has since been challenged in three different cases:
- The Center for Regulatory Reasonableness filed a challenge in the U.S. Court of Appeals for the District of Columbia Circuit, arguimng in part that the permit is illegal because it assumes any discharge into an impaired waterbody is a water quality violation.
- The National Association of Home Builders filed a challenge in the U.S. Court of Appeals for the First Circuit, claiming EPA has exceeded its authority in a number of ways, including an attempt to regulate stormwater based on flow instead of based on pollutants.
- The Massachusetts Coalition for Water Resources Stewardship (MCWRS,) a group representing municipal clean water interests in Massachusetts, has jointly filed a challenge with the Town of Franklin in the First Circuit. Among other issues, MCWRS argues that the permit goes beyond what Congress authorized EPA to do when regulating municipal stormwater discharges.
It is likely these challenges will eventually be consolidated into a single case, but it is not yet clear when that will happen or in which court. NACWA has been in contact with the petitioners in a number of the cases, as well as its Massachusetts utilities members. It is likely the Association will get involved in the litigation at the appropriate time to represent the national municipal stormwater perspective. Contact Brenna Mannion for more information.
Green Power, Legislative Update Slated for Energy Workgroup Discussion
NACWA’s Energy Workgroup will host a webinar on October 6 centered on how wastewater treatment plants manage energy demands while maximizing the utilization of green power. David Duest, Co-chair of the Workgroup, will give a presentation on the Massachusetts Water Resource Authority’s (MWRA) advanced Deer Island Treatment Plant. Currently, the Deer Island facility employs a variety of renewable energy sources in the operation of the plant, including digester gas, solar and wind energy.
In addition, the webinar will cover legislative issues related to energy production in the municipal clean water sector. In particular, NACWA will provide any developments from Energy Bill conferees as they move forward in the process of negotiating different Senate and House versions into a final package. The discussion will also address the various points of NACWA’s letter to energy conferees on key provisions important to clean water utilities. If you are interested in participating in the web meeting, please contact
Oliver HamiltonThis e-mail address is being protected from spambots. You need JavaScript enabled to view it
, Manager of Government Affairs, for more information.
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