Member Pipeline - Fax Alerts - August 12, 2005
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for the FaxAlert ArchiveAugust 12, 2005
EPA Affirms
NACWA’s Position in Key Interpretation of Water Transfers
EPA released a 19-page Agency “interpretation,” affirming NACWA’s legal position advanced in two key cases concerning interbasin water transfers – Catskill Mountains Chapter of Trout Unlimited, Inc. v. City of New York (Catskill) and South Florida Water Management District v. Miccosukee Tribe of Indians (Miccosukee). In both cases, NACWA argued, in amicus curiae briefs with other municipal organizations, that water transfers should not be subject to National Pollutant Discharge Elimination System (NPDES) permits under the Clean Water Act (CWA) – as such expansion of the permitting program is inconsistent with the CWA and would overwhelm the already backlogged NPDES program. In its interpretation, EPA states that “[b]ased upon the statute as a whole, we confirm the Agency’s longstanding practice and conclude that Congress intended for water transfers to be subject to oversight by water resource management agencies and state non-NPDES authorities, rather than the permitting program under section 402 of the CWA.” The Agency’s interpretation is of significant value to local governments nationwide who, based upon the Catskill and Miccosukee cases, were exposed to liability for transferring water without a permit. NACWA will provide additional details on this important matter in an upcoming Legal Alert.NACWA Submits Comments
on Mercury TMDL in California Water Quality Control Plan
Through its Water Quality Committee and Mercury Workgroup, NACWA submitted comments (http://www.nacwa.org/advocacy/comments/2005-08-11SFBay.pdf) to the California Water Resources Control Board (SWRCB) on a proposed amendment to the Water Quality Control Plan for the San Francisco Bay Region to incorporate a mercury total maximum daily load (TMDL). The Association believes SWRCB’s actions could be precedent-setting and is voicing its support for the current Plan which finds that point sources are de minimis sources of mercury and that a reduced numeric limit for mercury is not required. As NACWA’s comments point out, the Plan relies on scientifically sound studies that have shown that mercury contribution from point sources (POTWs, stormwater, industry, etc.) accounts for only two percent of total loading. This approach is consistent with EPA and state guidance documents and TMDLs developed to address mercury and other legacy pollutants, as well as with past handling of de minimis sources. NACWA will continue to work with the SWRCB to ensure the current Plan remains unchanged as the final ruling could potentially set a national precedent on mercury policy.EPA Proposes Minor Changes
to Iron, Steel ELG; Pretreatment Streamlining Still at OMB
EPA is proposing minor changes to the 2002 iron and steel effluent limitation guideline (ELG), (http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/05-15834.htm). EPA is proposing to lift a ban that prevented facilities from using a "water bubble" for oil and grease (O&G). The bubble is a regulatory flexibility option that allows "trading" to meet a single mass limit from multiple outfalls within the same facility. Industry stated after the 2002 final rule was issued that EPA did not adequately assess the costs associated with banning the use of a water bubble for O&G discharges, which they said would be substantial. The proposal would retain the ban on this "trading" option for sintering (iron and steel heating) processes. The proposal does not appear to have an impact on the pretreatment front or NACWA members. Also on the pretreatment front, EPA has yet to sign its final pretreatment streamlining rule, which is still under review at the White House Office of Management and Budget (OMB). NACWA learned late last week that representatives from the Natural Resources Defense Council (NRDC) met with OMB officials to reiterate positions they outlined in their 1999 comments on the draft streamlining rule. The Association does not believe this meeting has caused a further delay in, or any substantive changes to, the rule.