Member Pipeline - Clean Water Current - June 29, 2007

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June 29, 2007

NACWA Wins Major Victory in Clean Water Act-Endangered Species Act Case
The U.S. Supreme Court granted NACWA a significant victory June 25 in National Association of Home Builders v. Defenders of Wildlife when it agreed with the Association’s arguments in a February 2007 brief ( that Endangered Species Act (ESA) requirements do not need to be taken into account when National Pollutant Discharge Elimination System (NPDES) permitting decisions are made. The U.S. Court of Appeals for the Ninth Circuit had previously said that ESA provisions need to be considered when EPA weighs whether to delegate NPDES permitting authority to the states. The Clean Water Act lays out only nine factors to be considered in making delegation decisions, and ESA requirements are not among them. NACWA’s brief argued this point and explained that such an expansion of the ESA could have significant negative consequences for its public agency members.

In large part, the Supreme Court’s June 25 opinion adopted NACWA’s analysis of the case. The Court noted the seemingly irreconcilable mandates of the ESA and the CWA in this case and then explained that the ESA does not explicitly modify the nine statutory criteria of CWA Section 402(b). Environmental activist groups had argued that because the ESA was enacted after the CWA, it could be implied that endangered species provisions should be considered — as a tenth factor — when making NPDES delegation decisions. The Court disagreed that such an implication could be made without specific direction from Congress. Thus, EPA may look only to the requirements of the CWA when deciding whether to approve a state NPDES program. This decision is important because it provides a substantial clarification of the reach of the ESA for NACWA and its membership. It also represents an important victory for NACWA members in ensuring that the CWA remains the nation’s primary environmental statute dealing with NPDES permitting issues. A copy of the Court’s opinion is posted on the Litigation Tracking portion of NACWA’s Member Pipeline webpage (; a more detailed analysis of the case can be found in Legal Alert 07-04 (

House Passes EPA Budget Bill that Blocks Permit Fees, Focuses on Climate Change
The U.S. House of Representatives this week passed its fiscal year (FY) 2008 budget package for EPA (H.R. 2643) in a 272-155 vote. The bill leaves intact Appropriations Committee report language blocking EPA’s permit fee proposal. NACWA strongly opposed the proposal in comments (  submitted to EPA in March. The committee report language stated that “the Committee understands that the Agency received many negative comments during the comment period on the proposed rule. Therefore, the Committee urges the Agency to delay implementation of this program until the concerns are addressed. Until then, the Committee denies, without prejudice, the $5,000,000 request for the fees pilot program.” The proposal would have encouraged states to fund more of their National Pollutant Discharge Elimination System (NPDES) programs through user fees from permit applicants. NACWA was concerned the proposal would ultimately result in cuts to Section 106 funds used for Clean Water Act programs and worked with other groups in seeking legislative language to block the EPA plan.

The bill also provides $1.125 billion for the clean water state revolving fund (CWSRF) and $140 million in earmarked funds for specific water, wastewater, and stormwater projects. In addition, $50 million is included to create a Commission on Climate Change Adaptation and Mitigation. Of the total amount, $5 million would support the commission’s activity in reviewing science challenges related to adaptation and mitigation strategies necessitated by climate change, and for identifying specific action steps to address these challenges. After this review and not later than July 1, the remaining $45 million will be transferred by EPA to other federal agencies with climate science responsibilities for implementing the commission’s recommendations.

It is unclear at this point how this effort might impact wastewater utilities, but EPA has been increasing its focus on how climate change could impact water resources management. The Senate has not yet passed its version of the budget package, so the fate of these provisions remains uncertain until the House-Senate conference process is complete. Additionally, the President has threatened to veto the budget package in large part because of the increased funding for EPA, and the CWSRF in particular. NACWA will update members on the progress of this legislation.

NACWA Submits Comments on BEACH Act Hearing in Senate Subcommittee
NACWA submitted comments ( to the Senate Environment and Public Works Subcommittee on Transportation Safety, Infrastructure Security, and Water Quality this week that will be part of the record of a June 27 hearing on the Beaches Environmental Assessment and Coastal Health (BEACH) Act. NACWA’s comments emphasized that new recreational water quality criteria should have a strong scientific basis. The hearing primarily focused on EPA’s insufficient efforts to date on meeting the requirements of the BEACH Act, including its failure to issue new recreational water quality criteria by the mandated deadlines. Benjamin Grumbles, EPA assistant administrator for water, testified that the Agency is in the process of developing the new criteria, but did not provide any timeline for their completion. NACWA successfully intervened ( ) in litigation brought by the Natural Resources Defense Council (NRDC) regarding EPA’s failure to publish the new criteria. The hearing also focused on a possible new version of the BEACH Act currently being considered by Congress that would double the amount of federal funding for states to implement recreational water quality testing programs. The new legislation would also introduce a pollution identification and tracking program to identify the main causes of water pollution at beaches.

NACWA’s comments express support for development of scientifically-based, technically-sound, and cost-effective environmental programs for protecting public and ecosystem health in the nation’s recreational waters. The comments also encouraged the subcommittee to work with EPA to ensure that any new recreational water criteria are supported by sufficient studies and take into account different levels of recreational contact.

NACWA’s Strategic Watershed Task Force Makes Progress on Recommended Next Steps
NACWA’s Strategic Watershed Task Force met via conference call this week regarding the development of an advocacy plan for the future of clean water that will be released by the 35th anniversary of the Clean Water Act on Oct. 18. The task force is exploring holistic, watershed-based regulatory and legislative solutions to address ongoing clean water challenges. Several key areas for discussion have been identified: maximizing the use of available funds for the greatest water quality benefit; bringing all watershed stakeholders together to set solutions-based water quality priorities; and developing data-based regulations and better performance indicators, as well as innovative approaches such as green infrastructure, to ensure the viability of water quality-improvement. The task force is also looking at regulatory and legislative impediments to watershed approaches and will focus on ways to overcome them. The task force will be meeting at NACWA’s summer conference in Cleveland next month, and the Association will keep members informed about the progress being made on these issues.

Hotel Reservation Deadline TODAY for NACWA’s Summer Conference!
The deadline to reserve a room at the special rate of $159/night for NACWA’s summer conference, Sustainable Infrastructure Choices. . .Gray, Green & Everything In Between, is TODAY! The conference will be held July 17-20 at the Renaissance Cleveland in Cleveland, Ohio. Benjamin Grumbles, EPA assistant administrator for water, has confirmed that he will participate. In addition, former U.S. Rep. Sherwood Boehlert (R-N.Y.), who chaired
the House Science Committee and is another well-known figure in the clean water community, will kick off the conference with a keynote address reflecting on the 35 years of progress since the CWA was enacted and give his vision for the future, including the role of green infrastructure. The conference will also feature a discussion among partners who signed the Green Infrastructure Statement of Intent, in a roundtable format that provides opportunity for questions and answers in a more informal setting. More information about registration is available on NACWA’s website at