Member Pipeline - Regulatory - April 2007 Regulatory Update

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To: Members & Affiliates,
Regulatory Policy Committee
From: National Office
Date: April 10, 2007

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The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the April 2007 Regulatory Update. This Update provides a narrative summary of relevant regulatory issues and actions current to April 10, 2007. Please contact NACWA’s Chris Hornback at 202/833-9106 or or Cynthia Finley at 202/296-9836 or with any questions or information on the Update topics.

Top Story

NACWA to Review EPA Documents on Climate-Related CSO and Water Quality Impacts
NACWA is reviewing two new EPA documents relating to the impacts of climate change on clean water agencies in the Great Lakes and New England Regions. These documents from EPA’s Office of Research and Development follow on the heels of the recent announcement from EPA’s Office of Water that it is forming a workgroup to address the water quality impacts of climate change (

The first draft document, A Screening Assessment of the Potential Impacts of Climate Change on Combined Sewer Overflow (CSO) Mitigation in the Great Lakes and New England Regions, describes the potential scope and magnitude of climate change impacts on CSO mitigation efforts in the Great Lakes Region and New England Region. The report describes the extent to which CSO long-term control plans may be under-designed if planners assume that past precipitation conditions are representative of future conditions. The document is available on EPA’s website (

The second draft document is titled A Screening Assessment of the Potential Impacts of Climate Change on the Costs of Implementing Water Quality-Based Effluent Limits at Publicly-Owned Treatment Works (POTWs) in the Great Lakes Region ( It describes the potential scope and magnitude of climate change impacts on the cost of meeting water quality based effluent limits at POTWs discharging to rivers and streams in the Great Lakes Region. The report is a screening level analysis focusing on costs of meeting water quality based effluent limits for a single pollutant, biochemical oxygen demand, at all POTWs in the region discharging to currently impaired stream reaches.

Comments on both draft documents are due April 28, and NACWA is soliciting information from its members in the affected regions to determine whether comments are necessary. Please contact Chris Hornback at 202/833-9106 or if you have feedback about the draft documents.

Air Quality

NACWA Comments Raise Concerns about Factors in EPA Emissions Inventory
NACWA submitted comments ( on EPA’s Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990-2005, Draft for Public Review (Inventory) on March 29, expressing concern that the greenhouse gas emissions from wastewater treatment are overestimated. Federal, state, and local greenhouse gas reduction efforts are increasing, and the Inventory will take on added significance if it is used as a basis for regulating industries. Wastewater treatment ranks sixth in methane emissions and fifth in nitrous oxide emissions in the current Inventory, but NACWA’s review of the Inventory found that some factors used in the emissions calculations are too conservative. “Overall, we are concerned that the methodology used for the emission estimates leads to an overestimation of the contribution of wastewater treatment to total greenhouse gas emissions from all sources,” the comments said. NACWA has met with EPA to discuss its concerns with the Inventory estimates, and EPA has expressed willingness to work with NACWA to refine the estimates using data collected from wastewater treatment plants, rather than the current theoretical approach. NACWA’s Air Quality and Climate Change Committee leaders are examining existing data and the potential to collect new data to more accurately represent greenhouse gas emissions from wastewater treatment plants. NACWA will keep members informed about any data collection needs and developments on how clean water agencies may be affected by climate change concerns.

Climate Change Concerns NACWA Members, According to Survey
Responses to NACWA’s Climate Change Survey, completed in early March, indicate that climate change is a concern to many members and that NACWA should continue its advocacy efforts on this issue. Half of the survey respondents reported that their agency is currently concerned about climate change, primarily due to potential emissions reduction requirements, but also because of more intense rainstorms. Over 20 percent of respondents are already modifying or considering modifications to their wet weather programs due to possible changes in precipitation patterns. Almost all agencies (89 percent) reuse the methane gas generated in the wastewater treatment process for digester heating, building heat, electric power generation, or other purposes, although many agencies cannot use all of the methane available and flare the extra. Most of the utilities reuse methane to increase their energy efficiency and save money. Reusing methane gas has the added benefit of reducing greenhouse gas emissions from wastewater treatment, and NACWA wants proper credit to be given to this reduction in greenhouse gas emissions estimates, including EPA’s Inventory of U.S. Greenhouse Gas Emissions and Sinks (see story above). Climate Change Survey respondents supported NACWA’s efforts to obtain more accurate emissions estimates, and also recommended that NACWA advocate for federal funding to support emissions reduction and promote the energy-saving efforts of members, such as methane reuse. NACWA will continue to monitor developments in greenhouse gas emissions that may affect clean water agencies and keep members aware of relevant climate change issues.


2007 NACWA/WEF National Clean Water Policy Forum Registration Now Available
EPA Administrator Stephen Johnson has confirmed that he will provide the Agency’s perspective on water quality in the 21st Century in the Keynote Address at the NACWA/Water Environment Federation (WEF) 2007 National Clean Water Policy Forum, May 6-9, in Washington, D.C. at the Renaissance Washington Hotel in Washington, D.C. The preliminary agenda and online registration are now available on NACWA’s Conferences and Meetings webpage ( The deadline for reserving rooms at the conference rate is April 13. You can contact the hotel directly at (202) 898-9000 to make a reservation. The Policy Forum will provide unparalleled insight into national policymakers’ perspectives on environmental issues that will affect the entire nation, from clean water infrastructure funding, climate change, and sewer overflow control to farming and nonpoint source concerns. In addition to new leadership in Congress, the Clean Water Act turns 35 this year, offering an excellent opportunity to examine whether the current law can meet 21st century challenges and how the 110th Congress can help chart a new path on water quality issues.

On the morning of Wednesday, May 9, the Technical Roundtable Breakfast will once again give Policy Forum participants a unique opportunity to meet with key EPA officials and discuss issues such as wet weather, biosolids, utility management, and climate change. NACWA also urges utility leaders to take part in the first Clean Water Utility Executives Summit. The Summit, scheduled for the afternoon of May 7, will bring together utility executives from across the country to engage in a provocative, facilitated dialogue on the past, present, and future of the clean water community specifically, and water sector organizations as a whole. Again, agenda and registration information are now available on NACWA’s website (, so register today!

Facility and Collection Systems

NACWA, NRDC Meet With White House on Peak Flows Policy
NACWA and the Natural Resources Defense Council (NRDC) held a productive meeting March 21 with the White House Council on Environmental Quality (CEQ) to push for final Administration approval of the peak flows policy. Representatives from the EPA’s Office of Wastewater and the Office of Management and Budget (OMB) also joined the meeting. NACWA and NRDC worked together to write the peak flows policy, and EPA supports it. However, the policy has awaited final interagency review for the past few months at OMB, which has expressed concerns over the proposal’s lack of a cost/benefit analysis. During the meeting at CEQ, NACWA and NRDC emphasized the importance of final approval of the policy, stressing that both the clean water community and the environmental community are supportive of the initiative and eagerly await its release. NACWA and NRDC also explained that not finalizing the policy could have a chilling effect on efforts by the regulated and environmental communities to collaborate on future issues. Administration officials were very receptive during the meeting and appeared to understand the importance of moving forward with the proposal. NACWA is hopeful that the action on the rule will occur soon and will notify members of any developments.


NACWA Represents Clean Water Agencies in Security Meetings, Projects
NACWA represented the security interests of clean water agencies at a meeting of the Water Sector Coordinating Council (WSCC) on April 4 and 5. The WSCC, which consists of representatives from eight water groups including NACWA, develops policies and strategies for addressing water sector security issues and coordinates activities with the Department of Homeland Security (DHS) and EPA. Billy Turner, NACWA board member and president of Columbus Water Works, Ga., is chair of the WSCC and NACWA was represented at the meeting by Mike Gritzuk, Director, Pima County Wastewater, Tucson, Ariz.

Several issues discussed could directly impact wastewater utilities, including the DHS initiative to develop its Risk Analysis and Management for Critical Asset Protection (RAMCAP) framework for the water sector. The WSCC has been working hard to ensure that DHS deems NACWA’s Vulnerability Self Assessment Tool (VSAT™) and other existing vulnerability assessment tools as compatible with RAMCAP and supports upgrading these tools to meet both DHS’ and utilities’ needs. The WSCC also focused closely on DHS’ review of its tiered ranking system used to prioritize its grant funds — a review that occurs every year. The WSCC urged DHS to have a more robust system that goes beyond using population thresholds to determine risk. The group was encouraged by the success of water and wastewater utilities in establishing Water and Wastewater Agency Response Networks (WARNs), or mutual aid networks, at the state, interstate, and regional levels, an activity that all WSCC organizations have strongly supported. EPA is also planning to work closely with the WSCC in developing a decontamination strategy for the water sector, focused on addressing cleanup and recovery in the event of a chemical, biological, or radiological attack. NACWA’s Planning for Decontamination Wastewater: A Guide for Utilities was noted by EPA as a key resource for this effort. If you are interested in becoming more involved in the WSCC and its workgroups or in NACWA’s Security & Emergency Preparedness Committee, please contact Cynthia Finley at or 202/296-9836.

Test Methods

EPA Publishes New Test Methods for Biosolids/Wastewater
On March 26, EPA published in the Federal Register a final rule approving new methods for monitoring microbial pollutants in wastewater and biosolids, including EPA methods, vendor-developed methods, and methods developed by voluntary consensus bodies (VCSBs), as well as updated versions of currently approved methods. NACWA advocacy efforts in the area of bacteria criteria and the implementation of EPA’s 1986 bacteria criteria have focused on the lack of EPA-approved test methods for evaluating E. coli and enterococci in wastewater. EPA proposed to approve the methods on August 16, 2005 and published supporting materials on April 10, 2006. The regulation is effective April 25, 2007 and is available on EPA’s website (

Highlights of the final rule include:

Water Quality

NACWA Meets with EPA on Revised Ammonia Criteria
On April 3, NACWA met with officials from EPA’s Office of Science and Technology to discuss possible revisions to the 1999 water quality criteria for ammonia. Since announcing that it would reevaluate the criteria in July 2004, EPA has worked to conduct several new studies to further document the effects of ammonia on freshwater mussels and address other concerns raised by stakeholders. NACWA’s meeting with EPA was a preliminary step in what will likely be a two- to three-year process to develop and finalize a set of revised criteria. While NACWA’s comments ( on the July 2004 notice were critical of the new mussel toxicity studies for their use of unique life stages and an un-approved test protocol, the new information does appear to confirm that freshwater mussels may be more sensitive to ammonia than previously thought. EPA will be making critical decisions about its next steps in the coming months. While EPA is not yet sharing any potential criteria values, NACWA understands that the revised criteria could be significantly more stringent than the 1999 criteria.

EPA’s efforts to revise the criteria are being closely monitored by the U.S. Fish and Wildlife Service, due to ammonia’s potential effects on a number of threatened and endangered mussel species. It is possible that the new information on ammonia’s toxicity to mussels may have implications even before EPA has a chance to revise the criteria because it may be taken into account during EPA review of state water quality standards and review of National Pollutant Discharge Elimination System (NPDES) permits that use the 1999 criteria. Given the potential impact on the clean water community, NACWA will continue to engage the Agency as it moves forward with the revision of the criteria and will be contacting the membership soon for additional information relating to the implementation of ammonia criteria.

Court Grants NACWA Intervention in BEACH Act Case
On March 19, the U.S. District Court for the Central District of California ruled that NACWA may intervene as a plaintiff in Natural Resources Defense Council (NRDC) v. EPA, a legal challenge over EPA’s failure to establish new recreation water quality criteria as required by the Beaches Environmental Assessment and Costal Health Act (BEACH Act). A copy of the court’s order is available on NACWA’s website ( The BEACH Act required EPA to assess potential human health risks from exposure to bacteria and other pathogens found in costal recreational waters and to publish resulting bacteria and pathogen indicators by October 2005. EPA admitted that it did not meet these obligations, and on March 23, the judge in the case issued a ruling ( that EPA had violated the BEACH Act by failing to publish new or revised recreation water quality criteria for bacteria by the 2005 deadline. A conference before the court on April 2 determined a litigation schedule for the remainder of the case, with a resolution expected in late 2007 or early 2008. The case is now focused on determining how much time EPA will be given by the court to meet its BEACH Act obligations. NACWA intervened in the case as a plaintiff to ensure that EPA receives sufficient time to develop appropriate criteria. Settlement negotiations have already begun between NRDC and EPA, and NACWA will now be able to participate as a result of the March 19 ruling. More information on the case and relevant court documents may be found on the Litigation Tracker page of the Member Pipeline at

NACWA, Wet Weather Partnership Meet with EPA to Discuss TMDLs
NACWA, the Wet Weather Partnership (WWP), and the District of Columbia Water and Sewer Authority (DC WASA) met with EPA Assistant Administrator Benjamin Grumbles March 16 to continue a dialogue on key issues arising out of the decision of the U.S. Court of Appeals for the D.C. Circuit that all total maximum daily loads (TMDLs) must be expressed as true daily calculations. The group encouraged EPA to explore how non-daily limits can be developed under EPA’s 1978 TMDL regulation, which requires that “the proper technical conditions” be present for a pollutant to be “suitable for the calculation of” a TMDL. NACWA and the WWP urged EPA to consider issuing a supplement to its November 15, 2006 memo, which states that although TMDLs must include daily limits, permits can still contain non-daily limits. The supplement would acknowledge that “the proper technical conditions” can be analyzed on a waterbody-by-waterbody basis. NACWA and the WWP expressed concern that without further action from EPA, permits with non-daily limits may be vulnerable to appeal. Using Targeted Action Funds, NACWA is preparing to undertake a new effort to develop guidance for its public agency members on the suitability issue and how it may be raised on a case-by-case basis.

EPA Providing More Flexibility in Listing Mercury Impaired Waters
NACWA’s Mercury Workgroup has long argued that some mercury impaired waters are simply not appropriate for TMDL development. Water quality impairments in waters where mercury contamination stems from air deposition or abandoned mines, or where load caps on point sources will have little if any impact, are more likely to benefit from controls under other environmental programs. States have the authority to identify impaired waters that will be more effectively addressed by other programs and list them separately on their 303(d) lists. However, some states have had difficulty demonstrating that these other programs will actually result in attainment of the water quality standard, a prerequisite for using this approach. A new option from EPA is now available. While not an ideal approach since it will ultimately require TMDL development, EPA will allow states to use a new listing subcategory (5m) for those mercury-impaired waters that remain in the TMDL program, and defer development of the TMDL to encourage and enable other state and regional mercury reduction programs that might achieve environmental results sooner. The new guidance is available on EPA’s website (