Member Pipeline - Clean Water Current - February 22, 2007

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February 22, 2007

NACWA Meets with EPA, Congressional Staff on Proposed NPDES Permit Fee Rule
NACWA articulated its concerns in meetings this week on Capitol Hill and at EPA over the proposed National Pollutant Discharge Elimination System (NPDES) permit fee proposed rule. The proposal, which was released for comment in early January, would encourage states to raise their user fees for NPDES permits in exchange for more federal money from the Section 106 grant program. NACWA has been working with a coalition of state regulatory agencies and other regulated entities to oppose the rulemaking, saying they fear it may lead to cuts in federal Section 106 funding. The Association and others from the coalition met with representatives from the offices of Sens. James Inhofe (R-Okla.), Hillary Clinton (D-N.Y.), Richard Durbin (D-Ill.), and Ron Wyden (D-Ore.) to share their concerns and seek support in their effort to stop the rule from taking effect. Several options were discussed, including an amendment to the fiscal year 2008 EPA appropriations bill to block issuing the rule in final form.

EPA held its own public meeting this week on the rulemaking to gather comments from concerned citizens and organizations. NACWA spoke as a member of the coalition in opposition to the proposal. All those speaking at the EPA meeting were likewise opposed to the initiative. EPA staff said they appreciated the public comments, but did not indicate whether they had any intention of altering or abandoning the proposed rule. NACWA is also in the process of compiling written comments based on input from members and will submit them to EPA by the March 5 deadline. More information on the rule can be found on NACWA’s Member Pipeline webpage under Regulatory Alerts at

NACWA Urges California Board to Reconsider Order on Peak Excess Flow Facilities
NACWA asked the California State Water Resources Control Board (Water Board) to reconsider its permit requirements for the East Bay Municipal Utility District’s (East Bay MUD) peak excess flow treatment facilities (PEFTFs). The Water Board declared that the PEFTFs are publicly owned treatment works (POTWs) that must meet the secondary treatment standards of the Clean Water Act. Currently, these facilities provide primary treatment and disinfection to peak flows. The Water Board’s order was made even though EPA determined in 1986 that East Bay MUD’s facilities were not subject to secondary requirements. In Feb. 20 comments (, NACWA urged the Water Board to withdraw its order and work collaboratively with East Bay MUD for environmental progress.

NACWA’s letter explained that “the infrequent treatment and discharge of extreme peak flows from PEFTFs may provide more effective treatment than stressed biological plants under peak flow conditions, and can protect the efficiency and stability of biological plants.” The comments outlined the history of EPA’s “still-unfinished attempt to develop an appropriate regulatory framework for PEFTFs” and pointed out that EPA is allowing construction of new PEFTFs, without secondary treatment, as part of a comprehensive approach to wet weather flows in other cities under federal consent orders. NACWA also cited case law that says EPA properly excluded sewage overflow points from the definition of “treatment works.” NACWA will remain engaged in this issue and continue to advocate for consistent regulations for handling wet weather flows.

NACWA Files Supreme Court Brief in Key Clean Water Act/Endangered Species Act Case
NACWA filed a friend-of-the-court brief ( this week with the U.S. Supreme Court in U.S. EPA v. Defenders of Wildlife, a case involving the Clean Water Act (CWA) and how it may be affected by the Endangered Species Act (ESA). EPA is appealing a decision by the U.S. Court of Appeals for the Ninth Circuit, which held that the Agency improperly delegated NPDES permitting authority to the state of Arizona because ESA requirements were not sufficiently considered. In its brief, NACWA argues that the CWA lays out several factors EPA must consider when delegating NPDES authority, and ESA considerations are not among the permitted statutory considerations. The brief indicates that Congress has amended the CWA multiple times since the ESA was enacted but has never incorporated ESA requirements into the CWA. Furthermore, EPA’s own regulations do not require an ESA analysis as part of an NPDES delegation decision. The brief takes no position on any other aspect of EPA’s approval of Arizona’s NPDES program.

The Supreme Court accepted EPA’s appeal of this ruling in January. At its January meeting, NACWA’s Board of Directors approved the Association’s recommendation to file a brief in the case because of the implications that improper extension of the ESA to CWA activities could have on NACWA member agencies. Oral arguments in the case — which could be one of the high court’s most important environmental decisions this term — are scheduled for April 17. NACWA will keep members apprised of developments in the case as they evolve. More information is posted at

Votes on Funding Bills Pushed to March; NACWA Members Urged to Contact Reps
A vote by the full U.S. House of Representatives on two funding bills approved by the House Transportation and Infrastructure Committee has been delayed until March. The Water Quality Financing Act of 2007 (H.R. 720) would reauthorize the clean water state revolving fund (CWSRF) at $20 billion over five years; and the Water Quality Investment Act of 2007 (H.R. 569) would authorize $1.8 billion in grants for combined and sanitary sewer overflow control projects over six years. NACWA recommends that its members use this additional time to contact their representatives and ask them to support the bills. An Action Alert that NACWA sent out last week ( provides key points relating to the bills that members can use in appealing to their Representatives for support. NACWA will continue to monitor the progress of these bills closely and will work with members of the House and Senate not only to get them passed but to ensure that adequate funding is provided to ensure the meet their goals.

Save the Date for the NACWA/WEF National Clean Water Policy Forum
The timing of the NACWA/Water Environment Federation (WEF) National Clean Water Policy Forum, May 6-9, at the Renaissance Washington Hotel in Washington, D.C. could not be better. With new leadership in Congress, a flurry of activity on environmental issues has already begun with legislation on clean water infrastructure funding, climate change, sewer overflow control, and farming and nonpoint source concerns in the spotlight. In addition to a new Congress, the Clean Water Act will celebrate its 35th anniversary, providing an opportunity to examine whether the current law can meet 21st century challenges. Finally, EPA has a narrowing window to finalize rules and regulations, and they must hear from NACWA and WEF members on the need to complete the work on issues from peak excess flows to total maximum daily loads. The Policy Forum will also feature a Clean Water Utility Executives Summit. This Summit, scheduled for the afternoon of Monday, 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 the water sector as a whole. Hotel information is available on NACWA’s Conferences & Meetings website ( Agenda and registration information will be posted to the website next week.