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Susan Parker Bodine Barnes & Thornburg 202-371-6364 susan.bodine@btlaw

Mayors Water Summit December 8, 2010 New Federal Water Mandates. Susan Parker Bodine Barnes & Thornburg 202-371-6364 susan.bodine@btlaw.com. Adrienne Nemura LimnoTech 734-332-1200 anemura@limno.com. New or Proposed Regulations Affecting Municipalities. Wastewater Mandates

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Susan Parker Bodine Barnes & Thornburg 202-371-6364 susan.bodine@btlaw

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  1. Mayors Water Summit December 8, 2010 New Federal Water Mandates Susan Parker BodineBarnes & Thornburg202-371-6364susan.bodine@btlaw.com Adrienne Nemura LimnoTech 734-332-1200 anemura@limno.com

  2. New or Proposed Regulations Affecting Municipalities • Wastewater Mandates • Stormwater Regulations • Nutrient Controls • Water Quality Standards Regulations • Ocean Water Quality Mandates • Ocean acidification • Ocean and marine spatial planning • Drinking Water Mandates • Unregulated contaminants list • New and revised drinking water standards • Inherently safer technology

  3. New Stormwater Regulations • EPA committed, in a settlement agreement with Chesapeake Bay Foundation, to propose revised stormwater regulations by September 30, 2011, with a final regulation by November 19, 2012. • EPA agreed to propose to expand the universe of regulated stormwater discharges and to control, at a minimum, stormwater discharges from newly developed and redeveloped sites. • In this rulemaking, EPA may establish specific requirements for the Chesapeake Bay, including: • More stringent requirements on new development and redevelopment. • Retrofitting existing developed areas to reduce runoff (According to EPA this would cost $7.9 billion a year item in the Chesapeake Bay watershed). Hampton Roads has said that the retrofit assumptions in the draft Chesapeake Bay TMDL will cost their own ratepayers $679 million a year. • Expanding the definition of regulated MS4s.

  4. Chesapeake Bay Stormwater Rulemaking • Comments were due yesterday • Highlights from the “listening sessions” • EPA looking for municipalities to provide dedicated source of funding • Need to prove that BMPs and other controls are working before taking credit • Maryland noted time required to get localities to adopt ordinances reflecting Phase I and II permits- another regulation will be a paperwork exercise for towns

  5. New Stormwater Guidance • On November 12, 2010, EPA issued a memorandum to EPA regions establishing new policies for stormwater controls and the treatment of stormwater under TMDLS. • Agency states that this new memorandum “updates aspects of EPA’s November 22, 2002 memorandum,” that also addressed stormwater permitting and TMDLs. • EPA’s 2002 memorandum allows the use of Best Management Practices (BMPs) in lieu of numeric effluent limits in stormwater permits and related TMDLs. • EPA’s 2010 memorandum shifts the presumption away from BMPs and towards requiring numeric limits in stormwater permits.

  6. New Stormwater Guidance (2) • Once stormwater sources have numeric limits in permits, they also will be expected to receive an individual allocation in a TMDL (like the 1006 individual residences that received allocations in the draft Chesapeake Bay TMDL). • The memorandum also recommends regulating flow or impervious surfaces as a surrogate for regulating pollutants in stormwater. This constitutes regulation of a source, rather than a pollutant, which courts have found to be outside Clean Water Act authority. • Municipal separate storm sewer systems will be most affected. This guidance was issued without consultation with states or local governments.

  7. Issues with Numeric Limits and Stormwater Discharges • EPA says allocation should not be exceeded • Design to the 500-year event? • Technologies perform differently for different storms • Unrealistic WQ standards for urban waterways • Multiple pollutants Runway at O’Hare in Sep. 2008 after Hurricane Ike

  8. Issues with EPA Reasoning • TMDL establishes wasteload allocation and “permit conditions” for MS4 • Most people developing TMDLs do not understand how to write permits • NPDES permit writer gets new information • Fact sheet shows increased load won’t harm stream • EPA requires TMDL to be revised and approved before allowing change in permit limits

  9. Wastewater Mandates Nutrients – Florida Numeric Standards • EPA has authority to establish federal criteria in a state if EPA determines that it is necessary to carry out the Clean Water Act. • EPA made such a determination in January 2009 for nutrients in Florida. • EPA signed a consent decree to settle a case brought by Florida Wildlife Federation and others in August 2009 agreeing to issue federal criteria by specific dates. • EPA signed a final rule on November 14, 2010, that establishes federal standards for nitrogen and phosphorus applicable to Florida lakes and flowing waters. • The final rule establishes generic criteria but also allows persons to propose alternative site-specific alternative criteria. • Federal criteria for South Florida, estuaries, and coastal waters are expected in 2011.

  10. Wastewater Mandates Florida Numeric Nutrient StandardsCosts • Florida Department of Environmental Protection: $2.1 billion a year. Most Florida waters would be considered impaired. • Florida Department of Agriculture and Consumer Services: $902 million and $1.605 billion annual costs to the agriculture industry. • Florida Water Environmental Association: $24.7 and $50.7 billion in capital costs cost for upgrading wastewater utilities to advanced nutrient treatment to be between, with an additional $0.4 to $1.3 billion in annual operating expenses. • EPA: • initially: $4.7 to $10 million a year; • revised: $135.5-206.1 million a year, of which only $20-23 million would be costs to agriculture. • Benefits: $28.2 million a year, based on using contingent valuation methodology.

  11. Wastewater MandatesFlorida Numeric Nutrient StandardsIssues • EPA provides no support for its conclusion that federal criteria were “necessary.” • EPA’s reliance on site-specific alternative criteria is an admission that Florida’s original site-specific approach was appropriate. • EPA’s standards for streams are based on levels of nutrients in streams that have not been impacted by humans. But EPA has not showed how these nutrient levels are necessary to meet Florida designated uses. • Even though the stream criteria are based on unimpacted streams, EPA is requiring even lower standards if a lake downstream is not meeting its lake criteria.

  12. Impacts of EPA Actions in Florida • Environmental goals associated with reuse ignored by EPA in criteria • Science-based targets used in 1000s of TMDLs are now replaced with overly conservative criteria for TN and TP • State now required to submit a Use Attainability Analysis • Basin Management Action Plans (BMAPs) developed in consultation with cities and other stakeholders no longer valid • Facility planning schedules and financing plans may no longer be relevant

  13. Nutrients – Chesapeake BayTimeline • On May 12, 2009, President Obama issued Executive Order 13508. Under this Order, EPA announced it would complete a federal TMDL for the Chesapeake Bay by December 2010. • On December 29, 2010, EPA sent a letter to each Bay jurisdiction threatening “consequences” if the states did not go along with EPA’s plans • On May 10, 2010, EPA settled a lawsuit with Chesapeake Bay Foundation by committing to, among other things, issuing a final TMDL by December 31, 2010. • EPA released the draft TMDL on September 24, 2010. EPA proposed “backstop allocations” for each state because it did not agree with any of the state plans. • EPA plans to issue the final TMDL on December 31, 2010.

  14. Nutrients: Chesapeake Bay TMDLConsequences • EPA’s allocations to agriculture for nitrogen are not technically achievable unless 40% of the crop land is taken out of production. • EPA’s allocations to wastewater treatment plants require additional treatment to the limit of technology, costing billions • Even for plants that are currently upgrading to biological nutrient removal! • EPA’s allocations to urban runoff assume 50 percent of developed lands will be retrofitted to keep rainwater on-site. EPA has suggested that retrofitting developed land in the watershed to meet load reductions would cost $7.9 billion a year. • EPA did not provide estimates of the cost of implementing the draft TMDL. The cost will be in the $10s or even $100s of billions of dollars.

  15. Nutrients – Chesapeake Bay TMDLIssues • Chesapeake Bay Watershed Model • Scale too large for fine allocations, yet EPA did this. • Is based on inputs from the Scenario Builder model. • EPA still discussing issues and errors in the model. • Scenario Builder Model • Not subject to public review until the end of the comment period; no opportunity to correct. • Assumptions based on land uses that may not be accurate; USGS says there may be 100% more impervious surface than accounted for in EPA’s model. • No Use Attainability Analysis was performed.

  16. Nutrients- Chesapeake Bay Issues • Chesapeake Bay TMDL sets new “standard” for TMDLs • EPA defining “reasonable assurance” • “Backstop” TMDLs • Imposes new requirements without considering where resources can be obtained to implement the TMDL • Chesapeake Bay • Other watersheds • Disconnect between local and state planning and federal mandates

  17. Nutrients – Mississippi River Watershed • The Region 7 Regional Administrator has announced that EPA may lead the development of a basin-wide nutrient control strategy. • EPA claims it is not developing a TMDL for the Mississippi River watershed (yet). • EPA recently issued a RFP seeking consultants to evaluate Louisiana’s dissolved oxygen criteria for the Gulf of Mexico. • Louisiana did not ask for this assistance and the Gulf is meeting the state’s dissolved oxygen criteria. • EPA claims that stakeholders have asked for help in determining what nutrient levels can be discharged upstream of the Gulf and still protect water quality in the Gulf.

  18. Nutrients – Where next? • EPA claims Florida is unique and EPA does not plan to make any more determinations that federal nutrient criteria are “necessary.” • Kansas may still end up with federal criteria: • An environmental group filed a notice of intent to sue EPA for its failure to establish numeric water limits for nitrogen and phosphorus in the Kansas River alleging that EPA determined in 1998 that all states should either develop their own numeric nutrient criteria or adopt criteria established by EPA. Since Kansas has not yet adopted such criteria, they argue, EPA is required to develop federal criteria. • This is the same allegation that was made by environmental groups in Florida, which EPA settled by agreeing to impose federal numeric nutrient standards. EPA is currently negotiating a settlement that likely will put EPA under a deadline to promulgate such standards. • Wisconsin may escape federal criteria: • In November 2009, environmental groups sent EPA a notice of intent to sue for numeric criteria in Wisconsin. The threat of a suit prompted Wisconsin officials to propose numeric criteria for phosphorus. The new water quality standards were approved by the Wisconsin Natural Resources Board in June 2010 but still must be approved by EPA. • Other States that are developing numeric nutrient water quality standards and related procedures include Ohio, New York and North Carolina.

  19. Nutrients- Where Next • Questions: • If point sources (wastewater plants, industries & MS4) are a small part of the problem, will there be a benefit to controls? • If EPA and states can’t require nonpoint source reductions (or make substantial progress), EPA looking to require more reduction of point source discharges • Cities could invest in technologies and then be required to replace them in next permit cycle(s)

  20. Revisions To Water Quality Standards Regulations • Proposal expected Summer 2011. • EPA is considering changes to provisions relating to anti-degradation, designated uses, variances, compliance schedules, listing impaired waters, triennial reviews.

  21. Anti-degradationRulemaking • Anti-degradation reviews apply to Tier 2 waters that meet or exceed water quality standards. • Approval of a new or expanded discharge requires an alternatives analysis. • If the selected alternative would degrade water quality, it must be justified through a socio-economic analysis. • Suggested Changes: • Specify minimum elements that must be included in the State’s anti-degradation implementation procedures. • Provide that the State’s implementation procedure must be adopted into the State’s water quality standards and then submitted to EPA for approval.

  22. Anti-degradationRulemaking - Issues • De minimis exemptions. • 6th Circuit ruled in 2008 that exemptions must be de minimis and defined de minimis as 10% of the assimilative capacity of the water body. • On November 9, 2010, EPA disapproved the part of Kentucky’s anti-degradation regulations that allowed de minimis exemptions, determining that the cumulative effect of de minimis exemptions must be 10% or less of the assimilative capacity. • General permits • EPA also disapproved Kentucky’s anti-degradation provisions for general permits determining that the state must do a Tier 2 review when developing the general permit or when a person submits a notice of intent (which would than need to identify socio-economic factors and provide an alternatives analysis). • Impaired Waters – Tier 2 reviews only apply to waters that meet or exceed water quality standards. Environmental groups want impaired waters to undergo an anti-degradation review, particularly for discharges of pollutants that are not currently causing impairments (applying anti-degradation on a pollutant-by-pollutant basis).

  23. Anti-degradation: Myths, Misconceptions, and Misdirected Energy • Many believe that anti-degradation only applies to high-quality waters • Because state procedures are not well defined, interpretation matters • (New) tool that can be applied to make NPDES permits and TMDLs more stringent

  24. Ocean Water QualityOcean Acidification • On November 15, 2010 (in response to a lawsuit filed by the Center for Biological Diversity) EPA issued a memorandum called: Integrated Reporting and Listing Decisions Related to Ocean Acidification. • The memorandum states that if a state has sufficient data to determine that a water body is failing to meet marine pH criteria, the state should place that water body on the state’s list of impaired waters under section 303(d) of the Clean Water Act, even if the impairment is due to atmospheric sources. • Ocean acidification may be caused by a chemical reaction in water from CO2 emissions. Other sources include acid rain, municipal and industrial discharges, and natural upwelling of low pH or CO2 rich waters from the deep ocean. Nutrient runoff may result in processes that raise pH but excess nutrients that cause a die off of phytoplankton can result in reduced pH levels.

  25. Ocean Water QualityOcean Acidification (2) • Municipal and industrial dischargers already monitor for pH. • If a water body is listed on a 303(d) list, the state must develop a TMDL. • EPA agrees that there is not sufficient scientific information to develop TMDLs for ocean acidification. • EPA recommends states give these TMDLs a low priority, but Center for Biological Diversity may bring lawsuits to compel the development of TMDLs, which could adversely affect development in coastal communities.

  26. Ocean Water QualityCoastal and Marine Spatial Planning • The Interagency Ocean Policy Task Force issued its final recommendations on July 19, 2010. These include a recommendations for Coastal and Marine Spatial Planning (CMSP). • CMSP is “a comprehensive, adaptive, integrated, ecosystem-based, and transparent spatial planning process, based on sound science, for analyzing current and anticipated uses of ocean, coastal, and Great Lakes areas.” • The National Ocean Council (NOC) (a group of cabinet level officials and deputies) would work with states and tribes to create regional planning bodies that are tasked with developing CMS Plans. • Regional planning bodies would prepare and execute a CMSP Development Agreement, based on a model provided by the NOC. • The work plan for each CMSP would be subject to NOC approval. • The development of regional priorities also would be based on guidance developed by the NOC. • The NOC would have the authority to make decisions for a regional planning body, if the members do not agree with each other. • The NOC certifies each regional CMS Plan to ensure it is consistent with the National Ocean Policy, CMSP goals and principles, any national objectives, performance measure, or guidance the NOC has articulated, and any other relevant national priorities.

  27. Geographic Scope of CMSP • The geographic scope of the CMS Plans includes the territorial sea, Exclusive Economic Zone, Continental Shelf, Great Lakes to the high water mark, and inland bays and estuaries. • The plans are expected to be connected with land-based planning efforts, to consider influences from coastal watersheds and contributing land areas, and to be considered and accounted for in implementing the Coastal Zone Management Act, Clean Air Act, Clean Water Act, and other relevant authorities. • The plans would be developed for 9 large marine ecosystem levels: Alaska Arctic, Pacific Islands, West Coast, Gulf of Mexico, South Atlantic, Mid-Atlantic, and Northeast. • The authority for plan implementation is not spelled out. Implementation will require cooperative efforts at all levels of government.

  28. Drinking Water Mandates1996 Safe Drinking Water Act Amendments • Require monitoring of no more than 30 unregulated contaminants every 5 years. • Require review of at least 5 unregulated contaminants every 5 years to determine if regulation needed based on health effects, presence in public water systems, and meaningful opportunity for health risk reduction. • Require review of existing drinking water standards every 6 years. • For all future drinking water standards, EPA is required to use the "best available, peer-reviewed science and supporting studies.” EPA allowed to adjust standards so that costs are justified by the benefits.

  29. Drinking Water MandatesUncontaminated Monitoring List • New list will be proposed in 2011 and finalized in 2012; monitoring will start in 2013. • List 1 (applies to all systems above 10,000) – seven hormones; 1,4 dioxane; nine VOCs; 4 metals; chlorate. • List 2 (applies only to systems serving populations above 100,000) – also 6 perfluoronated alkyl acids.

  30. Drinking Water Mandates New Drinking Water Standards • EPA has made regulatory determinations for 20 contaminants and has not found that any meet the 3 criteria for regulation under the statute. • October 2008 regulatory determination for perchlorate was controversial; EPA issued a health advisory of 15 ug/L but determined there was not a meaningful opportunity for risk reduction. • August 2009, EPA sought additional comment and is expected to determine that perchlorate must be regulated. • March 2010 – Under EPA’s new Drinking Water Strategy EPA wants to accelerate the adoption of new drinking water standards. • EPA plans to address contaminants as a group rather than one at a time.

  31. Drinking Water Mandates Revised Drinking Water Standards • Based on the most recent review of drinking water standards, EPA plans to tighten standards for tetrachloroethylene, trichloroethylene, acrylamide and epichlorohydrin. • EPA also has ongoing regulatory efforts for 14 other contaminants , including planned revisions to the lead and copper rule, the total coliform rule, and the disinfectant byproducts rule. • The 14 contaminants are: Bromate, Chloramines, Chlorine, Chlorine dioxide, Chlorite, Coliform, Copper, Cryptosporidium, Giardia lamblia, HAA5, Lead, Legionella, viruses, haloacetic acids and trihalomethanes (disinfectant byproducts).

  32. Drinking Water MandatesInherently Safer Technology (IST) • In the past few Congresses, Homeland Security legislation in the House of Representatives has included a mandate to adopt “inherently safer technology” (IST). • This requirement has been opposed by drinking water providers because it is not always clear what is “inherently safer.” The switch from chlorine to chlormine is a likely cause of the increased lead levels in drinking water in D.C. • Given the Republican take-over of the House, legislation mandating IST is unlikely.

  33. Questions? Adrienne Nemura LimnoTech 734-332-1200 anemura@limno.com Susan Parker Bodine Barnes & Thornburg202-371-6364 susan.bodine@btlaw.com

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