April 2013, Vol. 25, No.4

Ending courtroom struggle

news

In January, the U.S. Supreme Court unanimously ruled to overturn a lower-court decision in the case of Los Angeles County Flood Control District v. Natural Resources Defense Council regarding stormwater flows discharged from the district into the San Gabriel and the Los Angeles river systems. The ruling in favor of the Los Angeles County Flood Control District brought an end to a lawsuit that spanned 5 years, had made its way through several federal courts, and could have changed the definition of “navigable waters” under federal law.  

The Water Environment Federation (Alexandria, Va.) was one of many parties, including New York City, the American Water Works Association (Denver), and the National Association of Clean Water Agencies (Washington, D.C.), that filed an amicus or “friend-of-the-court” brief in support of the district, asking the court to overturn the previous lower-court ruling.    

“Our work is done,” said Gail Farber, chief engineer of the district, in a Jan. 8 press release after the Supreme Court’s ruling was announced. “The fight for clean water is ongoing and remains a collective priority of the District and our many water quality stakeholders within the region.”  

The Natural Resources Defense Council (NRDC; New York) expressed displeasure with the ruling in its own Jan. 8 news release.    

“We’ll continue to seek to hold the Los Angeles County Flood Control District responsible for cleaning up its water pollution,” said Steve Fleischli, senior attorney and director of NRDC’s national water program.   

 

The issues of the case 

According to the NRDC press release, the stormwater case began back in 2008, when NRDC and the Los Angeles Waterkeeper (formerly the Santa Monica Baykeeper), filed a lawsuit seeking to “hold the county responsible for the toxic mix of mercury, arsenic, cyanide, lead, and fecal bacteria found in billions of gallons of stormwater runoff.”  

The case eventually made it to a U.S. District Court, which in 2010 ruled in favor of the district, but when the case went to the 9th U.S. Circuit Court of Appeals, the court ruled against the district, stating that pollution detected at the monitoring stations along concrete-lined sections of the San Gabriel and the Los Angeles rivers demonstrated discharges in violation of the district’s National Pollutant Discharge Elimination System (NPDES) permit. The court stated that the NPDES permit requires the district to ensure that flows from it meet regulatory standards, whether these flows originate in the district, from incorporated portions of the county, or from any of the 84 cities covered under an umbrella permit, along with the county and the district.   

By the time the case reached the Supreme Court in December, one of the questions presented before the justices was whether the transfer of water through the concrete-lined sections of the Los Angeles and San Gabriel rivers constituted a “discharge” under the NPDES system’s Municipal Separate Storm Sewer Systems (MS4) permit. Both parties agreed during their oral arguments before the Supreme Court that the transfer of water through the concrete-lined sections of the rivers and past the monitoring stations did not qualify as a discharge under the Clean Water Act (CWA), and, therefore, the 9th U.S. Circuit Court of Appeals ruling was either mistaken on facts or legally incorrect. The two parties asked the Supreme Court to instead focus on the scope of the district’s responsibility under its MS4 permit to detect pollution at the in-river monitoring stations, regardless of any demonstrated connection to the district’s stormwater outfalls.   

Supreme Court explains its decision

 

In her written opinion, Justice Ruth Bader Ginsberg explained that the court decided to overturn the 9th U.S. Circuit Court of Appeals decision because of a previous Supreme Court case, South Florida Water Management Dist. v. Miccosukee Tribe, in which the court “accepted that pumping polluted water from one part of a water body into another part of the same body is not a discharge of pollutants under the CWA.” The court elaborated by explaining that in the Miccosukee case, “polluted water was removed from a canal, transported through a pump station, and then deposited into a nearby reservoir. … We held that this water transfer would count as a discharge of pollutants under the CWA only if the canal and the reservoir were ‘meaningfully distinct water bodies.’ It follows, afortiori, from Miccosukee that no discharge of pollutants occurs when water, rather than being removed and then returned to a water body, simply flows from one portion of the water body to another.”  

Ginsberg wrote that, therefore, the justices ruled in the case of Los Angeles County Flood Control District v. Natural Resources Defense Council that the “flow of water from an improved portion of a navigable waterway into an unimproved portion of the very same waterway does not qualify as a discharge under the Clean Water Act.”  

 

LaShell Stratton-Childers, WE&T  


  

A new spin on public outreach

Nontraditional methods can help educate the public about water and wastewater systems  

 

 

 

 

When it comes to getting the word out to customers, water and wastewater utilities have many communication methods at their disposal: press releases, newspapers, newsletters, bill stuffers, public service announcements, signage, social media, etc. But some innovative utilities and municipalities are reaching out to customers through more nontraditional routes, with much success.  

Reaching out to the public in various ways is extremely important, said Jean Marie Walsh, communications manager at the San Francisco Public Utilities Commission. She said her utility will have to raise rates to fund infrastructure improvements in upcoming years, so it really wants to educate customers about the system.   

“And many of these customers are not going to go to town council meetings,” but utilities still have to reach these people within the community, Walsh said.   

   

Educating kids about water  

Since 2007, the City of Rio Rancho, N.M., has hosted a water festival that teaches thousands of school children about water conservation, quality, recycling, and treatment.   

“Before that, we had a group of Rio Rancho students who went to Albuquerque [N.M.] for their water festival,” said Marian Wrange, program manager for the city’s Environmental Programs. “It would include about 200 to 250 students from Rio Rancho and about 600 to 800 from Albuquerque.”  

Wrange said that for the first 2 years, the festival in Rio Rancho was run by a consultant who had organized similar festivals in Albuquerque and Santa Fe, N.M.   

“She did the legwork and secured the initial funding,” Wrange said.  

But eventually, the city got a grant from the New Mexico Bureau of Reclamation to hold the annual 2-day event for 3 years, and now the city organizes the festival itself.  

“By 2012, it was fully funded through donations from businesses,” said Lynn Kronowit, an administrative specialist at CH2M Hill (Englewood, Colo.) who works with Wrange on the city’s Environmental Programs public outreach.  

Wrange said much planning goes into the Children’s Water Festival held in October. The event is led by a steering committee composed of city staff and representatives from CH2M Hill, the New Mexico Environment Department, the Master Gardeners program of the American Horticultural Society (Alexandria, Va.), and others.  

“We meet once a month starting in March,” Wrange said, and they discuss everything from who they will ask for donations to the festival theme to who will be presenting at festival that year. Presenters have come from such varied sources as the U.S. Forest Service and Rio Rancho Public Schools plumbers.  

The event usually is held at the local arena, the Santa Ana Star Center. Booths are set up in a fair format, and children are assigned three different activities that cover the subject matter highlighted at the festival.  

According to the city’s website, the 2012 festival reached 1357 students, which accounted for 100% of Rio Rancho fourth-grade students.  

“That was the largest group we’ve ever had in attendance,” Kronowit said, “but we really wanted all of our Rio Rancho students to attend.”  

Wrange said the only negative feedback received from the teachers was that they wished the students could participate in five activities, as they had in previous years, as opposed to three, as they did in 2012.   

“But we had to compress it to three to fit everyone,” Wrange explained. “If we didn’t, we would have been there for multiple days.”  

“We told the teachers that we’d gladly volunteer to cover whatever material they wanted for in-class presentations,” Kronowit said.  

Wrange and Kronowit have made similar presentations for kindergartners through fifth graders during after-school programs. They even have conducted the presentations at summer camps, Kronowit said.   

“We usually start each presentation with about 10 minutes of talking about the water cycle, the basics of water treatment, etc.,” Wrange said.   

Then they introduce plastic models of nonpoint source pollution and landfills. The presentations often include a game modeled after the television show Jeopardy!®. They also have the younger students read a story, then provide them a coloring book based on that story.  

Kronowit said utility staff have learned how to adapt the material to capture their audience. “We can tell if something isn’t keeping their attention,” she said. “We don’t continue it if it’s not working.”  

 

Embracing the quirky   

San Francisco is known for being an innovative city, Walsh said. “We have a lot of tech companies, artists, and quirky residents,” she said. “It’s in our environment.”  

So, the San Francisco Public Utilities Commission definitely has a lot more latitude than some utilities in how creative its outreach campaigns can be. For example, Walsh said the commission has started to hold bike tours through a partnership with the San Francisco Bike Coalition.   

“San Francisco is a very bike-friendly city,” Walsh explained, and the commission has several bikers on staff. She said they held the first tour a few years ago with mostly staffers. They biked around San Francisco, looking at infrastructure, such as pump stations. The tour included roughly 35 people, 25 of whom were staff. The remaining 10 who were not staff still seemed to enjoy the tour, so the commission began to explore the idea of opening up the bike tour to the public, she said.   

In 2012, the commission held two open bike tours: One focused on water resource recovery facilities and pump stations, and the other focused on green infrastructure installations.  

“It was a tremendous success,” Walsh said. “And we didn’t invest any real money in this.”  

They used a grassroots effort to promote the tours by making flyers and posting them in bike shops and coffee shops. They also promoted the tours online and listed tour information in the San Francisco Bike Coalition newsletter.  

Seventy-five people attended the first bike tour.   

“You basically needed a bullhorn to be heard,” Walsh said. “We were trying to get around the city with this giant group of cyclists. People couldn’t fit on the sidewalk. We were a victim of our own success.”  

For the second tour, they tried to cap it at 35 people, but many others showed up anyway, Walsh said. The commission received more calls later from people who had missed the tours, asking when the commission would hold the tours again.  

Another unique way the commission has tried to reach the public is through its participation in “Nerd Nite” at a popular bar in San Francisco.   

“You pay an $8 cover charge, and you listen to three speakers talk about nerdy stuff,” Walsh said. “I thought, ‘Hey, we’ve got a lot of nerds on staff. Why don’t we participate in this?’”  

Walsh said she gave the presentation. She showed a 30-second video of a grease clog being removed. “It’s kind of a gross video, but people loved it,” she said. “They wanted us to come back and show it again.” She also showed historical photos of the wastewater system.  

Walsh said not only has she been able to move forward with these communications ideas because there are “internal champions who have been really supportive,” but also because it’s easier to get ideas across based on past successes, such as the bike tours and Nerd Nite.  

But Walsh admits that some ideas have been a little too creative to get the green light. She once suggested that the commission hold a free giveaway that would involve printing information about the San Francisco Wastewater Enterprise on recycled toilet paper and handing it out to the public.   

“It was totally shot down, but I’m not giving up!” she said.  

LaShell Stratton-Childers, WE&T   

 

Learn more
See a video on San Francisco Public Utilities Commission’s bike tours at
www.youtube.com/watch?v=DGxywR8lQKY. 


  

U.S. EPA roundup  

U.S. EPA updates rule for pathogens in drinking water, limit for Escherichia coli

In February, the U.S. Environmental Protection Agency (EPA) finalized the Revised Total Coliform Rule, which revises the 1989 Total Coliform Rule. The purpose of the 1989 rule, according to an EPA fact sheet, is to protect public health by ensuring the integrity of the drinking water distribution system and monitoring for the presence of microbial contamination.   

EPA said it anticipates greater public health protection under the revised requirements, which are based on recommendations by a federal advisory committee and public comments.   

The revised rule establishes a health goal (maximum contaminant level goal, or MCLG) and a maximum contaminant level (MCL) for Escherichia coli. It also replaces the MCLG and MCL for total coliforms from the 1989 rule with a treatment technique for coliforms that requires assessment and corrective action.  

Under the revised rule, water distribution systems that are vulnerable to coliform contamination are required to assess the problem and take corrective action to reduce illness and death. There is no longer a monthly MCL violation for multiple total coliform detections.   

The rule also establishes criteria for systems to qualify for and stay on reduced monitoring, which could reduce the water system burden and provide incentives for better system operation.  

The revised rule also updates provisions in other rules that reference analytical methods and other requirements in the 1989 rule (e.g., Public Notification and Ground Water Rules).   

The 1989 rule remains effective until March 31, 2016. Regulated parties must comply with the revised rule’s requirements on April 1, 2016.   

For more information, visit EPA’s Total Coliform Rule page at water.epa.gov/lawsregs/rulesregs/sdwa/tcr/regulation.cfm.  

New criteria for fecal indicators in recreational waters

New water quality criteria from the U.S. Environmental Protection Agency (EPA) were released in November and are intended to protect swimmers, surfers, and divers in coastal and inland waters. The criteria help states address a broader range of symptoms, better account for pollution after heavy rainfall, encourage early alerts to beachgoers, and promote rapid water testing.   

The criteria do not impose any new requirements, according to EPA; instead, they are a tool that states can choose to use in setting their own standards.   

Like past EPA recommendations for primary-contact recreational uses, including the agency’s previous set of recreational water quality criteria in 1986, the 2012 criteria are based on indicators of fecal contamination.   

The criteria, which incorporate the latest scientific knowledge, public comments, and external peer review, were released in November pursuant to an order from a U.S. District Court and as required by the Beaches Environmental Assessment and Coastal Health Act of 2000.  

The recommendations include 

  • a short-term and a long-term measure of bacteria levels that are to be used together to ensure that water quality is properly evaluated;  
  • stronger recommendations for coastal water quality so public health is protected similarly in both coastal and fresh waters; and  
  • a new rapid testing method (EPA Method 1611) that states can use to determine if water quality is safe within hours of water samples being taken.   

EPA Method 1611 is a quantitative polymerase chain reaction method to detect and quantify fecal indicator bacteria more rapidly than the culture method for ambient waters. The method is anticipated to provide increased public health protection by facilitating timely notification to swimmers of elevated levels of fecal indicator bacteria (including fecal coliforms, Escherichia coli, enterococci, and Enterococcus spp.). According to EPA, enterococci, as measured by EPA Method 1611, have shown a stronger relationship to gastrointestinal illness in a recent EPA epidemiological study, compared to other methods tested.   

For more information, visit the EPA Recreational Water Quality Criteria page at water.epa.gov/scitech/swguidance/standards/criteria/health/recreation/index.cfm.   

 


NACWA, U.S. EPA trade arguments on sewage sludge incineration rule  

In a brief filed in December, the National Association of Clean Water Agencies (NACWA; Washington, D.C.) reiterated its legal challenge to a U.S. Environmental Protection Agency (EPA) 2011 rulemaking on sewage sludge incinerators (SSIs).   

 

 

At press time, the case was waiting for the U.S. Court of Appeals for the District of Columbia Circuit to schedule an oral argument. The argument most likely will be scheduled in late spring, with a decision expected soon after, according to Nathan Gardner-Andrews, NACWA general counsel.  

NACWA’s brief was filed in response to an EPA brief in October, which, in turn, responded to NACWA’s challenge (which can be downloaded here www.wef.org/NACWA_SSI_LegalBrief_072412) that SSIs should be regulated under Sec. 112 of the Clean Air Act and not Sec. 129, which requires maximum achievable control technology implementation.   

Sec. 112 addresses air toxics, and Sec. 129 regulates solid waste combustion. Under Sec. 112(e)(5), SSIs would be regulated as publicly owned treatment works, while under Sec. 129(g)(1), they would be regulated as solid waste incineration units, according to NACWA. Solid waste incineration units are defined as “a distinct operating unit of any facility which combusts any solid waste material from commercial or industrial establishments or the general public.”   

According to EPA, the Clean Air Act’s “unambiguous language” required the agency to set pollution limits for SSIs under Sec. 129.  

EPA’s brief can be downloaded here. The final EPA SSI rulemaking can be viewed here  

Federal agencies collaborate on pharmaceuticals research

The U.S. Environmental Protection Agency (EPA), U.S. Department of Agriculture, U.S. Department of Health and Human Services, and U.S. Department of the Interior have agreed to improve coordination and collaboration on issues related to pharmaceuticals in drinking water through a new memorandum of understanding (MOU).  

The MOU formalizes sharing scientific data and coordinating future research on the presence of pharmaceuticals in drinking water, their sources, and potential health effects.   

According to the MOU, EPA faces challenges in obtaining sufficient occurrence and health effects data on pharmaceuticals and other contaminants in drinking water to help support analyses and decisions to identify which, if any, pharmaceuticals should be regulated under the Safe Drinking Water Act.  

To date, these efforts have been largely informal. The agencies formulated the MOU in response to a recommendation by the U.S. Government Accountability Office in 2011.  

A copy of the MOU can be downloaded here.  

Cathy Chang, WE&T