Member Pipeline - Clean Water Current - May 18, 2007

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May 18, 2007

Court Grants NACWA Significant Victory in Clean Water Act Permitting Case
NACWA won a major legal victory May 17 when the Minnesota Supreme Court ruled in the case of Cities of Annandale and Maple Lake (Cities) NPDES Permit Issuance that the Minnesota Pollution Control Agency (MPCA) may use an “offset” analysis when issuing a National Pollutant Discharge Elimination System (NPDES) permit for a new wastewater treatment plant discharging into an impaired water body. The ruling overturns a 2005 decision of the Minnesota Court of Appeals, which held that MPCA could not issue an NPDES permit for the cities to discharge to a water body that does not meet water quality standards. MPCA had issued the permit based on a finding that reductions resulting from upgrades at another nearby POTW would have more than offset the new discharge. The lower court held that consideration of such offsets was improper. The case was appealed to the Minnesota Supreme Court, and NACWA filed a brief in December 2005 at the request of its Minnesota members, which supported the state agency’s interpretation of the federal rule on permitting new discharges. The court’s ruling embraces NACWA’s reasoning and represents a significant victory for ensuring that states have the power to make NPDES permitting decisions that are both equitable and environmentally sound. A copy of the opinion may be found at NACWA will issue a Legal Alert next week analyzing the case.

NACWA, Coalition Make Progress on Water Quality as a Farm Bill Priority
NACWA participated with two separate coalitions this week in signing letters to key leaders of the House and Senate committees with jurisdiction over the Farm Bill urging them to “provide cooperative opportunities for water quality, quantity and conservation initiatives in the upcoming reauthorization” of the Farm Bill. Others signing on to the May 16 letters ( included the Association of California Water Agencies (ACWA), the Association of Metropolitan Water Agencies (AMWA), Inland Empire Utilities Agency, the National Water Resources Association (NWRA), the U.S. Conference of Mayors, and the Western Coalition of Arid States (WestCAS). Several environmental advocacy and conservation groups signed on to a similar letter ( sent May 11, which also included the referenced organizations.

Both letters encouraged members of Congress not only to support existing conservation programs in the Farm Bill, but to promote programs that foster collaborative projects involving water and wastewater utilities, as well as producers, working toward a common watershed-based agenda. An example of a multi-stakeholder program that targets watershed-based projects is the Regional Water Enhancement Program (RWEP) being proposed by the Bush administration and supported by NACWA and other groups. The administration’s proposal would set aside $175 million annually within the Environmental Quality Incentives Program (EQIP) for competitive grants to groups to implement water quality and conservation projects in their watersheds.

A draft version of the conservation title currently being circulated by Rep. Collin Peterson (D-Minn.), the chairman of the House Agriculture Committee, includes provisions for an RWEP-type program, but only with about $80 million annually. Peterson is expected to introduce the bill next week. NACWA will work to ensure the greatest possible benefit is derived from the legislation.

NACWA Tracks Fallout from EPA IG Report on Enforcement of Permit Program
NACWA is closely tracking the potential fallout from a new Office of Inspector General (OIG) report released this week ( on EPA’s oversight of the National Pollutant Discharge Elimination System (NPDES) permit program. The report details what OIG describes as ineffective enforcement oversight of major facilities that are in long-term significant noncompliance (SNC) with NPDES permit requirements. The OIG reviewed enforcement actions at 56 major facilities, including some wastewater treatment plants, and found that EPA and the states did not take suitable action in many cases, and where action was taken, was often not timely based on EPA’s own guidance. The OIG also cited problems with incomplete or inaccurate records of the enforcement actions that were taken.

EPA’s Office of Enforcement and Compliance Assurance (OECA) reviewed a draft of the report and its extensive comments, citing significant factual inaccuracies and misinterpretations, are included in the final OIG document. OECA is now required to develop a response to the final report, including a corrective action plan with milestones and deliver that report to OIG within 90 days. While any action by OECA to more aggressively address SNC may impact clean water agencies, the OIG report also includes a separate recommendation concerning bacteria that may have greater implications for public wastewater utilities. In its review, the OIG noted numerous exceedances of bacteria permit limits. OIG said that if the SNC criteria for conventional pollutants were applied to those exceedances, almost 75 percent of them would have been considered SNC. Since bacteria limits are not currently subject to SNC criteria, these exceedances were not evaluated for the report. The OIG, however, is now recommending that OECA “establish controls allowing EPA leadership to identify significant noncompliance by bacteria-only violators for enforcement action.” NACWA will alert the membership when it learns how OECA plans to respond to the report.

In related news, EPA recently released a new version of its draft Significant Noncompliance (SNC) Policy ( NACWA previously submitted comments based on member input to the Agency regarding the policy (; however, it appears that many of the problems identified still exist in the new version of the draft. NACWA will be working with EPA in the coming weeks regarding the deficiencies in the draft policy and will keep the membership informed of any developments.

Online Registration Now Available for NACWA’s 2007 Summer Conference
Plan now to attend NACWA’s 2007 Summer Conference, Sustainable Infrastructure Choices…Gray, Green, & Everything In Between, July 17-20, 2007 in Cleveland, Ohio. The conference program will focus on how sustainable clean water infrastructure can be developed by balancing traditional gray infrastructure with new green infrastructure approaches. Featured speakers and panelists will examine the benefits and challenges of incorporating green infrastructure in terms of regulatory requirements, economics, and environmental progress. The conference will also include meetings of NACWA’s standing committees, the 2007 NACWA Open golf tournament, and a Thursday evening event and dinner at the Rock and Roll Hall of Fame. Online registration and the conference agenda are now available on NACWA’s website