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98–202 PDF 2016

S. HRG. 113–804 

INNOVATION AND THE UTILITIES OF THE FUTURE: 

HOW LOCAL WATER TREATMENT FACILITIES ARE 

LEADING THE WAY TO BETTER MANAGE 

WASTEWATER AND WATER SUPPLIES 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WATER AND WILDLIFE 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

DECEMBER 2, 2014 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.gpo.gov/fdsys 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED THIRTEENTH CONGRESS 

SECOND SESSION 

BARBARA BOXER, California, Chairman 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

TOM UDALL, New Mexico 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

DAVID VITTER, Louisiana 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

MIKE CRAPO, Idaho 

ROGER WICKER, Mississippi 

JOHN BOOZMAN, Arkansas 

DEB FISCHER, Nebraska 

BETTINA POIRIER, Majority Staff Director 

ZAK BAIG, Republican Staff Director 

SUBCOMMITTEE ON WATER AND WILDLIFE

BENJAMIN L. CARDIN, Maryland, Chairman 

THOMAS R. CARPER, Delaware 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

BARBARA BOXER, California (ex officio) 

JOHN BOOZMAN, Arkansas 

JAMES M. INHOFE, Oklahoma 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

DEB FISCHER, Nebraska 

DAVID VITTER, Louisiana (ex officio) 

(III) 

C O N T E N T S 

Page 

DECEMBER 2, 2014 

OPENING STATEMENTS 

Cardin, Hon. Benjamin L., U.S. Senator from the State of Maryland ................ 1 

Boozman, Hon. John, U.S. Senator from the State of Arkansas ......................... 3 

Baldwin, Hon. Tammy, U.S. Senator from the State of Wisconsin ..................... 10 

Vitter, Hon. David, U.S. Senator from the State of Louisiana, prepared statement ...................................................................................................................... 121 

WITNESSES 

Johnson, Jerry, General Manager and CEO, Washington Suburban Sanitary 

Commission ........................................................................................................... 2 

Prepared statement .......................................................................................... 5 

Sigmund, Tom, Executive Director, Green Bay Metropolitan Sewerage District ........................................................................................................................ 10 

Prepared statement .......................................................................................... 13 

Harlan, Kelly, L., Jr., General Manager, San Francisco Public Utilities Commission .................................................................................................................. 31 

Prepared statement .......................................................................................... 33 

Kricun, Andrew, P.E. BCEE Executive Director/Chief Engineer, Camden 

County Municipal Utilities Authority ................................................................ 43 

Prepared statement .......................................................................................... 46 

Longsworth, Jeffrey, Partner, Barnes & Thornburg LLP .................................... 58 

Prepared statement .......................................................................................... 60 

Responses to additional questions from Senator Boxer ................................ 75 

Hall, John C., Director, Center for Regulatory Reasonableness, President, 

Hall & Associates ................................................................................................. 82 

Prepared statement .......................................................................................... 84 

Responses to additional questions from Senator Vitter ................................ 94 

(1) 

INNOVATION AND THE UTILITIES OF THE FUTURE: HOW LOCAL WATER TREATMENT FACILITIES ARE LEADING THE WAY TO BETTER MANAGE WASTEWATER AND WATER 

SUPPLIES 

TUESDAY, DECEMBER 2, 2014 

U.S. SENATE 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

SUBCOMMITTEE ON WATER AND WILDLIFE

Washington, DC. 

The subcommittee met, pursuant to notice, at 9:30 a.m. in room 

406, Dirksen Senate Building, Hon. Benjamin Cardin (chairman of 

the subcommittee) presiding. 

Present: Senators Cardin, Whitehouse, Boozman. Also present: 

Senator Baldwin. 

OPENING STATEMENT OF HON. BENJAMIN CARDIN, 

U.S. SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. The subcommittee will come to order. 

I would like to thank the leadership of the full committee for allowing us to have this subcommittee hearing on a subject which I 

think is very important, and that is to look at how our U.S. water 

utilities are using innovative approaches to deal with the current 

demands on wastewater. 

We have evolved from the system of using dilution to deal with 

the effluents to new technologies and innovations, and we look forward to hearing about it. 

I want to thank Senator Boozman. The two of us have conferred 

and we are going to spare you from our opening statements in 

order to give maximum time to our witnesses. We have a real serious time crunch since there are votes scheduled at 10:30 on the 

floor and the full committee is meeting at 11:30 today. So we are 

going to have to try to condense the hearing. I appreciate Senator 

Boozman’s cooperation. 

I do want to acknowledge, though, that this is the last hearing 

for the Subcommittee on Water and Wildlife. I want to thank Senator Boozman for his help and cooperation during this term of Congress. I think we had very productive opportunities in the subcommittee to advance water and wildlife issues and I thank you 

very much. I want to acknowledge the hard work of our staff, Josh 

Kline of my staff, Jason Albritton, Ted Illston, Philip Moore, Brandon Middleton and Chris Tomassi. All have contributed to the success of the subcommittee. I know the two of us, the two Senators 

2 

normally get the spotlight and the attention, but our staff does incredible work. I just really want to thank them for their service to 

this subcommittee, to the full committee and to the U.S. Senate 

during this 2-year term of Congress. 

With that, Senator Boozman. 

OPENING STATEMENT OF HON. JOHN BOOZMAN, 

U.S. SENATOR FROM THE STATE OF ARKANSAS 

Senator BOOZMAN. Just very quickly, Mr. Chairman, I agree with 

you totally. This really is a very important subject and I appreciate 

the witnesses being here and really look forward to hearing the testimony. 

I also want to thank you for your leadership. I have been on 

transportation and infrastructure since I was in Congress, the 

House and here. The nice thing about these issues, most of the 

time these are very bipartisan issues on which we work together 

very, very well. Again, I appreciate your leadership in this area, 

Senator Cardin. I think we have had some really good hearings 

and have done a lot of good work. 

I also want to thank the staff for their hard work. The Senator 

is right, we get the credit, or sometimes not. Bad credit. 

[Laughter.] 

Senator BOOZMAN. But the staff does so much work and they do 

a tremendous job, again, working together, which is so important. 

Thank you, Mr. Chairman. I yield back. 

Senator CARDIN. Thank you. 

I will introduce the witnesses as they will speak to save time. We 

will start with Mr. Jerry Johnson, the General Manager and CEO 

of the Washington Suburban Sanitary Commission, which serves 

part of the State of Maryland. We thank you very much for your 

innovative leadership and we know that there are huge challenges 

in this region in regard to how we treat our wastewater. I would 

ask if you would try to limit your comments to 5 minutes to give 

us a chance for questioning. And all of your formal, written statements will be made part of the committee record, without objection. 

STATEMENT OF JERRY JOHNSON, GENERAL MANAGER AND 

CEO, WASHINGTON SUBURBAN SANITARY COMMISSION 

Mr. JOHNSON. Thank you very much, Senator. 

Good morning, I am Jerry Johnson, General Manager and CEO 

of Washington Suburban Sanitary Commission, headquartered in 

Laurel, Maryland. We provide water and wastewater services to 1.8 

million residents in Prince Georges and Montgomery Counties. 

Those two counties, as you know, border on the District of Columbia, our Nation’s capital. 

To put it in some perspective, WSSC’s service area is roughly the 

same combined population as the cities of Philadelphia and Pittsburgh, Pennsylvania, combined. WSSC has a combined operating 

and capital budget for this year of $1.4 billion. 

WSSC has over 5,600 miles of underground water pipe fed by 

two water filtration systems, one on the Potomac River, the other 

on the Patuxent. Approximately 500 miles of those pipes, or nearly 

26 percent, are over 50 years old. WSSC operates another 5,400 

miles of underground sewers which are undergoing a $1.5 billion 

3 

federally mandated renovation. We also operate seven wastewater 

treatment plants and a couple of dams for water impoundment. 

During the current fiscal year, we plan to replace 60 miles of water pipe at a cost of $1.4 million per mile. Our challenges, plans, 

infrastructure replacement and increasing costs are representative 

of the situation that utilities face across the Country. 

Over the next 6 years, our capital improvement program, which 

is the fastest-growing part of our budget and funds most of the replacement of underground pipes, will cost our ratepayers an estimated three quarters of a billion dollars. Put differently, this is almost $125 million per year for the next 6 years. 

In anticipation of these expenses, WSSC has been using some innovative cost-saving strategies to benefit our customers and the 

agency. Ninety-five percent of our revenue comes from our customers. But our customers are using less water through conservation and more efficient appliances. For the last 5 years, even within 

the troubled economy, our county councils have recognized the need 

for striving and putting together the improvements that we have 

to do and approve rate increases of from 6 to 9 percent. 

In 2010, WSSC established a bi-county infrastructure funding 

working group to identify options to change some of the alternatives for less costly sources of revenue. One of the ways to accomplish this goal was by making a stronger commitment to sustainability. So WSSC is going green. Our ratepayers can go green 

by participating in WSSC’s initiative to become environmentally 

friendly through electronic and paperless billing. They can go green 

also through paperless statements and online operation of many of 

the functions of their own individual accounts. Ratepayers can use 

a mobile app, which allows customers to use their smart phones to 

pay bills, check on service alerts and report problems and do a 

great deal more. 

Our greenhouse gas action plan, which began implementation in 

2010, is a 20-year plan which outlines strategies to reduce greenhouse gas emissions by 10 percent over each year, each 5 years 

from now until 2030. WSSC is advancing this goal in two ways. 

First, we are directly purchasing about 30 percent of our electric 

power from wind farms on a 10-year agreement. This 10-year 

agreement will result in environmental benefits including the reduction of 38,000 tons of greenhouse gas emissions per year. 

Second, we are using about 17,000 solar panels to power two 

wastewater treatment plans. The solar energy provides 17 percent 

of the power going to those facilities. 

For water utilities of the future, not going green is not an option. 

That means that we must take advantage of every seemingly useless product and return the savings to our customers. We are currently look at a major bio-energy facility. That bio-energy facility 

will save the organization about $3.7 million and reduce energy, 

bio-solids disposal and chemical costs. This project was actually 

spawned by a study that formed the basis for this project that 

came through a grant that was sponsored by Senator Cardin, so 

that we could get that project started. That was a very well-placed 

investment, sir. 

As you know, a robust water system is essential to maintaining 

public health and supporting both economic development and 

4 

growth. However, like many other urban areas in America, WSSC 

is currently facing some unique financial and infrastructure challenges, including financial sufficiency, revenue stability, rate stabilization and affordability, while trying to minimize the impacts 

on our customers. 

With that, Senators, I will complete my oral presentation and 

would be pleased to answer any questions that you might have. 

[The prepared statement of Mr. Johnson follows:] 

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Senator CARDIN. Thank you very much, Mr. Johnson. We appreciate it. 

We have been joined by Senator Baldwin. It is a pleasure to have 

you before our committee to introduce one of our panelists. 

OPENING STATEMENT OF HON. TAMMY BALDWIN, 

U.S. SENATOR FROM THE STATE OF WISCONSIN 

Senator BALDWIN. Thank you, Chairman Cardin and Ranking 

Member Boozman and Senator Whitehouse. Thank you for holding 

this hearing and inviting me to say a few words this morning. 

In Wisconsin, fresh water defines our landscape, from the Great 

Lakes in the north and east to the Mississippi in the west, and 

with our more than 15,000 inland lakes, fresh water shapes our 

lifestyles and our economy. We Wisconsinites pride ourselves in 

protecting our most important resource through effective and common sense policy that ensures fresh water will be available for 

many decades into the future. 

As my colleagues will appreciate, one of the major challenges facing our communities is the fight to reduce phosphorous loading in 

our waterways, pollution which feeds algae blooms and can lead to 

severe public crisis. In Wisconsin, we are proud to have national 

leaders on the job working to pioneer the solutions to this complicated issue. In specific, we are most fortunate to have Tom Sigmund on the job. Tom is here with us today to share the work he 

does as Executive Director of NEW Water, which is the brand of 

the Green Bay Metropolitan Sewerage District, where he is a pioneer in watershed restoration. 

With Tom at the helm, NEW Water has taken the focus of water 

treatment beyond just municipal waste streams to look at the 

health of the entire watershed. In doing this, NEW Water has 

found allies from environmental groups to the agricultural community. These efforts have reduced the amount of phosphorus and nutrient runoff in Wisconsin’s waterways and provided a model for 

other States and municipalities that are looking for the right approach for their own challenges. 

In addition to his work in Wisconsin, Tom serves in leadership 

roles with the National Association of Clean Water Agencies, where 

he has led their Water Resources Utility of the Future Task Force, 

and served on their steering committee. 

I am really delighted that he is here with us today. Tom, welcome, and thank you for making the trip here to share your experience and our Wisconsin experience. 

Senator CARDIN. Mr. Sigmund, we will be glad to hear from you. 

STATEMENT OF TOM SIGMUND, EXECUTIVE DIRECTOR, 

GREEN BAY METROPOLITAN SEWERAGE DISTRICT 

Mr. SIGMUND. Chairman Cardin, Ranking Member Boozman, and 

members of the subcommittee, thank you for inviting me to testify 

today. 

As Senator Baldwin said, my name is Tom Sigmund. I am the 

Executive Director at NEW Water, which provides water quality 

services to 18 municipalities and 220,000 people in and around 

Green Bay, Wisconsin. I also chair the Utility and Resource ManVerDate Aug 31 2005 14:27 Jul 07, 2016 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\98202.TXT VERN
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agement Committee for the National Association of Clean Water 

Agencies, and am pleased to testify on behalf of that organization. 

Forty years after passage of the Clean Water Act, clean water 

agencies are transforming the way they deliver clean water services. At the heart of this transformation is the emergence of new 

technologies and innovations that can stretch ratepayer dollars, improve the environment, create jobs, and stimulate the economy. At 

NEW Water, we have embraced innovation to provide better services to our ratepayers and better environmental outcomes for our 

community. 

We are working in the watershed with agricultural producers to 

improve water quality, reduce phosphorus and tackle the dead zone 

in Green Bay. We are embarking on a new bio-solids facility that 

will recover energy as well as harvest the beneficial byproduct that 

will be sold as commercial fertilizer. 

Perched amidst the Great Lakes, Green Bay’s waters are impaired with excessive nutrients, delivering one-third of the total 

nutrients that enter Lake Michigan causing algal blooms a significant problem. 

NEW Water has been thrust into this issue due to significantly 

more stringent phosphorus limits for point source dischargers. To 

meet these stringent limits, NEW Water would need to build additions to two treatment facilities at a capital cost exceeding $220 

million that would result in little if any water quality improvement. In lieu of these upgrades, NEW Water is exploring a program authorized by the State of Wisconsin called adaptive management under which point source dischargers are afforded flexibility 

and can defer or potentially avoid costly infrastructure construction 

by facilitating nutrient reductions within the agricultural or other 

non-point sectors. 

NEW Water has convened a group to tackle a 4-year adaptive 

management pilot project in Silver Creek, a 4,800-acre sub-watershed in our community that drains to Green Bay. The stakeholder 

group includes several State and local entities, including the Oneida Tribe of Indians, USDA’s Natural Resource Conservation Service, the Nature Conservancy and Ducks Unlimited. The pilot 

project will demonstrate improvements to water quality when best 

management land practices are implemented. At the project’s completion, it is hoped that Silver Creek will provide a model approach 

that can be replicated elsewhere. 

NEW Water is also completing the design phase of an innovative 

bio-solids project, resource recovery and electrical energy known as 

R2E2. Two anaerobic digesters will break down biodegradable material to produce a methane gas, which will be captured and processed onsite into a biofuel and used to produce electricity. NEW 

Water’s annual energy costs are slated to be reduced by more than 

50 percent in the first year of operation, reducing its greenhouse 

gas emissions by 22,000 metric tons. 

Nutrient recovery is another exciting aspect of R2E2, as the technology will allow recovery of struvite, a phosphorus-based byproduct and an important ingredient in agricultural fertilizer. By harvesting struvite from our influent, we reduce maintenance costs associated with its removal and create a commercial fertilizer product 

12 

that we can sell. This win-win means both resource recovery and 

supplemental non-rate based revenue. 

As NEW Water demonstrates, the market for innovation in the 

clean water sector is strong. Resistance to change, however, is also 

significant. Nothing short of a national strategic comparative to reform the U.S. water sector is likely to drive the kind of change that 

will be needed to fully address future challenges. NACWA’s Water 

Resources Utility of the Future Task Force developed several policy 

recommendations for driving this change, including ways to 

incentivize the private sector to invest in innovation within the 

clean water sector. Included in my written statement are additional 

proposals. 

Thank you, and I am happy to answer any questions you might 

have. 

[The prepared statement of Mr. Sigmund follows:] 

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Senator CARDIN. Mr. Sigmund, thank you very much for your 

testimony. We very much appreciate it. And we thank Senator 

Baldwin for being here. 

We will now go to Mr. Harlan Kelly, the General Manager of the 

San Francisco Bay Utilities Commission. Mr. Kelly, it is a pleasure 

to have you here. 

STATEMENT OF HARLAN L. KELLY, JR., GENERAL MANAGER, 

SAN FRANCISCO PUBLIC UTILITIES COMMISSION 

Mr. KELLY. Thank you. Good morning, Chairman Cardin and 

Ranking Member Boozman and committee members. 

I am Harlan Kelly, the General Manager of the San Francisco 

Public Utilities Commission. I want to thank you for the opportunity to speak on this important topic about innovation and utility 

of the future. 

I also want to thank the committee for your leadership in the recent passage of the Water Resource Reform and Development Act 

that included the new WIFIA program and the expansion of the 

Clean Water Revolving Fund. These programs are essential if we 

are going to make investments in our water and wastewater system to support cities and communities. 

I am proud of the investment that San Francisco is making in 

our water and wastewater system and I am honored to share our 

story with you today. The PUC is a department in the City and 

County of San Francisco comprised of three essential services: 

water, wastewater and municipal power. We are the third largest 

public utility in California with 2,300 employees working in seven 

counties with a combined operating budget of nearly a billion dollars. Like many utilities across the Country, our infrastructure is 

in dire need of repair. We identified $10 billion in capital need over 

the next decade and we are embarking upon two major capital improvements. The first one is a water system improvement program 

which we are about 80 percent complete and nearly $5 million investments to make seismic improvement, add redundancy and diversify our water supply. 

Since 2007, we generated 11,000 jobs and 7 million craft hours 

through the investment in our water system. With our investment 

in our water system nearly complete, we are now beginning our 

sewer system improvement program, which is a 20-year, multibillion dollar upgrade of our wastewater infrastructure. 

We are not alone in investing in infrastructure, creating jobs and 

economic growth. A recent report of the national economic and 

labor market impact of water utility sectors found that $233 billion 

will be invested by 30 of the largest water and wastewater agencies 

over the next decade. These investments will generate over half a 

trillion dollars in economic output in the next 10 years and support 

300,000 jobs annually. 

Our operations and capital plans offer the opportunity to employ 

new initiatives and business strategies consistent with being a utility of the future. For example, we are investing in technology for 

resource recovery. As we build our treatment plants, through our 

sewer system improvement program, we are investing $1.7 billion 

in upgrading our digesters. Using new technologies, these investments will maximize our conversion of biogas to energy, resulting 

32 

in the production of nine megawatts of renewable energy and reduction of our energy costs. This will allow us to meet 90 percent 

of the plant’s need through onsite energy generation with the ultimate goal being to achieve net positive energy. 

In addition, we are integrating climate change adaptation in our 

planning effort through droughts that threaten our water supply to 

rising sea levels that inundate our sewers. The adverse effects of 

climate change are already affecting infrastructure nationwide. In 

San Francisco, we are integrating climate change risk analyses and 

adaptation consideration in our sewer system planning. We are 

studying the impact of rising sea levels, storm intensity and using 

inundation mapping to help us identify future challenges to our 

systems. We are using this data to determine how we can best 

make changes to our design standards in order to accommodate 

variances in the number, frequency and intensity of major storms. 

This will help us consider the right mix of green and grey infrastructure as we undertake our sewer system rebuild. 

Finally, we value being a good neighbor in all that we do. We are 

the largest local public agency in San Francisco and we understand 

the impact that we have on communities where we work. That is 

why we are the first public utility in the Nation to adopt an environmental justice and community benefit policy that guides the 

agency effort to be a good neighbor. Both policies are being integrated in all the aspects of our work. 

For example, we are working with contractors to include community benefit commitments in all the professional service contracts 

over $5 million. By the end of this year, we will have commitments 

in 30 contracts totaling over $6 million in direct financial contribution, voluntary hours and in-kind donation at no cost to the city. 

We also are committed in supporting work force development programs and connecting local youth and adults to training and work 

experience apprenticeships and employment. Approximately 40 percent of our work force will be eligible to retire in the next 5 years, 

so building these career pipelines not only creates opportunities in 

the communities but it also addresses our broader agency needs for 

a skilled work force. 

In closing, these examples are just some of the ways that San 

Francisco exemplifies what it means to be a utility of the future. 

We are more than a service provider. We have a role to play in 

making our community a viable, sustainable and thriving place to 

live and work. 

Senate hearings like this are important, since they shine the 

spotlight on our invisible water infrastructure. Forums like this 

help local utility leaders to elevate the importance of water infrastructure in America. And I just want to thank you for the opportunity to speak before this committee, and I will be happy to answer any questions. 

[The prepared statement of Mr. Kelly follows:] 

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Senator CARDIN. Thank you, Mr. Kelly. We appreciate your testimony. 

We will now turn to Mr. Andrew Kricun, the Executive Director 

and Chief Engineer, Camden County Municipal Utilities Authority. 

STATEMENT OF ANDREW KRICUN, P.E., BCEE, EXECUTIVE DIRECTOR/CHIEF ENGINEER, CAMDEN COUNTY MUNICIPAL 

UTILITIES AUTHORITY 

Mr. KRICUN. Thank you very much, Mr. Chairman, Ranking 

Member Boozman and distinguished Senators. It is a great honor 

to have the opportunity to speak to you today about the future of 

clean water infrastructure in our Country. 

As you said, Senator Cardin, I am Andy Kricun, the Executive 

Director of the Camden County Municipal Utilities Authority. We 

operate an 80 million gallon per day wastewater treatment plant 

in Camden City, New Jersey, which is one of the most economically 

distressed cities in the Country, right across the Delaware River 

from Philadelphia. The fact that the city is so economically distressed informs a lot of what we do. 

But first, I want to talk about the infrastructure situation in general. As you probably know, the American Society of Civil Engineers rated our clean water infrastructure across the Nation as a 

D. In addition, the recent climate history of Hurricane Sandy has 

shown that our infrastructure is just not resilient enough as it 

stands today to deal with today’s climate challenges, let alone the 

climate challenges that are projected. If Hurricane Sandy had been 

50 miles inland, our wastewater treatment plant would have been 

completely inundated and billions of gallons of sewage would have 

gone into the Delaware River. 

So what is to be done with this infrastructure gap? I believe the 

first thing that must be done is that clean water utilities must improve their own efficiency. We at Camden County MUA have implemented an environmental management system to optimize our 

efficiency. As a result of that, we upgraded our entire wastewater 

treatment plant over the last 10 years, improved our water quality 

performance by over 40 percent and did that and held our rates for 

17 years, a rate that was $337 per household in 1996, it is $342 

today, 18 years later. 

So we optimized our efficiency and improved our environmental 

performance through the efficiencies of the environmental management system and also through the State Revolving Fund, New Jersey’s environmental infrastructure trust, that helped us borrow the 

money to improve our wastewater treatment plant at such low 

rates that the operations and maintenance savings that we gained 

through the improvements were greater than the debt service. So 

we were able to improve our performance, upgrade our facility and 

hold our rates steady for our customer. Again, because of Camden’s 

economic distress, that is an important thing for us have done. 

The SRF is important, the SRF working together with optimizing 

efficiency can help utilities improve performance and hold the 

rates. So this is important to do, and it is important to do it sooner 

rather than later, because emergency repairs are so much more expensive than planned repairs. Therefore, if you do it ahead of time 

44 

in a planned way, you will save money, as opposed to fixing something that is already broken. 

When we do this, not only do we protect our clean water infrastructure, we are protecting the public health and the environment 

and also have the opportunity to get a win-win by closing the jobs 

gap. Closing the infrastructure gap and the jobs gap together can 

be done through judicious investment in our clean water infrastructure. 

Utilities not only need to be efficient, as I described, they also 

need to be innovative, as my colleagues have described. We have 

a goal at our wastewater treatment plan to be 100 percent clean 

by 2018. We are already 10 percent of the way there, with private 

sector investment, a power purchase agreement which helped with 

legislation from the Congress, we put in solar panels that ended up 

saving our ratepayers $300,000 per year in electricity costs and no 

capital costs to our utility and reduced our reliance on the electricity grid by 10 percent. We are currently doing the same thing, 

with the same model, and building a digester with a combined heat 

and power system that will provide 60 percent of our electricity 

needs through the biogas from our sludge and will cost our ratepayers nothing. In fact, it will be a net savings to our utility. So 

that will bring us up to 70 percent of our goal to be 100 percent 

green by 2018 and be completely off the grid. 

The other thing we are doing is because of Camden City’s combined sewer system being so dilapidated, we have been trying to 

improve grey infrastructure but also implementing green infrastructure. We have built green gardens throughout the city to try 

to capture stormwater and reduce the burden on Camden’s combined sewer system. 

We have also been innovative with collaborative partnerships. 

We have a Camden Collaborative Initiative that was formed by 

ourselves, the USEPA Region 2 and New Jersey DEP, and 35 other 

environmental partners, including the Nature Conservancy, National Park Service and many others, almost 40 partners together 

working on Camden City’s environmental problems. The city is 

strapped for resources; therefore these partners are working together to deal with the city’s flooding problems, emissions and 

brownfields problems. Clean water utilities can take a leadership 

role in collaborative partnerships. 

We also are working with people like Tom, Harlan, Jerry and 

NACWA to try to better disseminate best practices across the 

Country. There are best practices that are already being done by 

the leaders in the Nation. The more we can spread that to other 

utilities, the more it will improve the entire environmental picture. 

We also need to improve environmental education so that we can 

gain better understanding and support from ratepayers for a fair 

rate to support clean water infrastructure. 

In summary, we utilities need to continue to be more efficient 

and more innovative. We need assistance from the Federal Government in the form of the SRF financing and incentives for innovative approaches and regulatory flexibility to do more with less. We 

need to educate our ratepayers who are willing to pay a fair rate 

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vironment. With this partnership, we can continue to protect our 

environment. 

Thank you. 

[The prepared statement of Mr. Kricun follows:] 

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Senator CARDIN. Mr. Kricun, thank you very much for your testimony. 

We will now turn to Mr. Jeffrey Longsworth, Partner, Barnes & 

Thornburg LLP. 

STATEMENT OF JEFFREY LONGSWORTH, PARTNER, BARNES & 

THORNBURG LLP 

Mr. LONGSWORTH. Thank you very much, Chairman Cardin, 

Ranking Member Boozman, and members of the subcommittee. My 

name is Jeff Longsworth, I am a partner with Barnes & Thornburg. I have served in the past on EPA’s Federal Advisory Committee on Urban Wet Weather Flows as well as many Federal, 

State and local advisory committees, as well as clients. 

Local water treatment agencies are leading the way in protecting 

local water resources. Individual municipal separate storm sewer 

system operators, or MS4s, and utilities are developing many innovative strategies to address local water resources, resource challenges and to implement green infrastructure. You have heard 

some of the unique local solutions to complex challenges through 

other testimony this morning. Flexibility and limited resources to 

address unique local and regional issues are also threatened in 

part by two EPA initiatives. 

First, EPA is forcing certain MS4s to adopt stormwater flow and 

water retention standards for otherwise unregulated sites based on, 

for example, the amount of impervious surface. But Congress limited EPA’s authority over MS4s to controlling the discharges of pollutants from MS4s to the maximum extent practicable. Congress 

did not authorize EPA to regulate discharges into MS4s other than 

to prohibit non-stormwater discharges. Congress also provided EPA 

with a specific statutory process to expand its stormwater permit 

program under Clean Water Act Section 402(p)(5) and (6) by first 

studying unregulated stormwater discharges and then establishing 

‘‘procedures and methods to control stormwater discharges to the 

extent necessary to mitigate impacts on water quality.’‘ 

EPA must submit its study as a report to Congress before promulgating new regulations. EPA successfully expanded its 

stormwater program using this process in 1999. In 2009, EPA reinitiated this process to add new and redeveloped properties to the 

NPDES permit program, they call it their national stormwater 

rulemaking. Last year, EPA halted this national rulemaking but 

now includes identical mandates to force MS4 operators to establish pre-development runoff standards for discharges into the MS4 

system through the agency’s permitting power absent any formal 

rulemaking. 

Specific permit examples are identified in my written testimony. 

Of note are at least two Department of Defense bases that have appealed their permits to the EPA Environmental Appeals Board. 

Even the stormwater guidance memo issued last Wednesday, 

which promotes these types of practices, EPA’s efforts to bypass the 

Clean Water Act 4(p)(5) and (6) and its national rulemaking, have 

denied the public the opportunity to participate in the National debate on the legality of this program expansion and to the detriment 

of MS4 operators, which are saddled with the types of standards 

59 

EPA publicly walked away from when it deferred its national rulemaking. 

As the DOD argued before the EAB, the NPDES permit program 

is all about the discharge of pollutants from point sources to waters 

of the United States. Stormwater flow is not a pollutant as defined 

by the Clean Water Act and case law. Impervious surfaces are not 

point sources, they are non-point source runoff. 

And while MS4s ultimately discharge into waters of the U.S., 

that issue now has been confused and confounded by EPA’s and the 

Army Corps of Engineers’ proposed rule to redefine waters of the 

United States. MS4s are defined as conveyance or systems of conveyance designed for using and collecting stormwater. MS4 definition closely tracks the definition of point source, confirming that 

storm sewers are established points versus subject to NPDES permitting. EPA formally distinguished MS4s as point sources on the 

one hand and waters of the United States on the other in its 1990 

stormwater rulemaking. Under the new jurisdictional proposed 

rule, common MS4 components could be confusingly and unnecessarily layered with more Federal regulations jurisdictional waters. 

Certainly, Congress never envisioned a circumstances where water 

of the U.S. could be located within a point source. 

Further, Section 303 requires that States adopt water quality 

standards for waters of the United States. If an MS4 contains waters of the U.S., then States would need to designate uses for those 

stormwater systems and then potentially total maximum daily 

loads. But States are prohibited from adopting the use for waste 

transport, which is exactly what an MS4 system is, it is a drainage 

system that moves points and treats systems leading up to a discharge. The very purposes of the MS4, ditches, drains and gutters 

within the system, is in fact a transport waste. It would be impossible to designate a water quality standard for an MS4 for any reason other than to convey stormwater, which is in plan violation of 

EPA’s regulations for water quality standards. 

In closing, the EPA and Corps should clearly identify that MS4s 

do not contain waters of the United States to address that potential 

issue and the significant cost associated with having to redesign 

their permit programs to meet both the pre-development hydrology 

as well as this waters of the United States issue at significant expense and resources to those MS4s. 

[The prepared statement of Mr. Longsworth follows:] 

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Senator CARDIN. Thank you very much for your testimony, Mr. 

Longsworth. 

We will now turn to Mr. John Hall, the Founder and President 

of Hall & Associates. 

STATEMENT OF JOHN C. HALL, DIRECTOR, CENTER FOR REGULATORY REASONABLENESS, PRESIDENT, HALL & ASSOCIATES 

Mr. HALL. Good morning, Chairman Cardin, Ranking Member 

Boozman and members of the subcommittee. As the President of 

Hall & Associates and the Director of the Center for Regulatory 

Reasonableness, it is a pleasure to be here this morning to testify 

before the subcommittee. 

The Center for Regulatory Reasonableness is a multi-sector municipal industrial coalition that is dedicated to ensuring that regulatory requirements are based on sound scientific information and 

allow for cost effective compliance. My areas of expertise are environmental engineering and environmental law, with over 35 years 

experience in addressing complex Clean Water Act issues across 

the Country from municipal and private entities. 

In my view, and based on my 35 years experience, it is EPA’s 

creation of new compliance requirements, based on limited information, the continued imposition of unauthorized regulatory mandates 

and the failure to update decades-old regulatory approaches that 

are in fact the biggest impediments to true water pollution control 

innovation and protection of ecological resources. I would like to 

provide the subcommittee with a couple of examples. 

First, for decades, EPA understood that wastewater plants could 

be subject to large flow variations due to major rainfall events. To 

protect the plant operations that are sensitive to flow, engineers 

designed facilities and split flow treatment modes using physical, 

chemical and biological processes. Sometimes this is called blending. 

Historically, EPA grant-funded these designs as a cost-effective 

solution to maximize wet weather flow processing, protect the environment and avoid oversizing facilities while meeting permit limits. 

If you will, a win-win for all concerned. Unfortunately, this successful approach was undermined in 2006, when EPA began to unilaterally enforce a new policy without rulemaking that declared these 

wastewater plant blending operations to be illegal, even when they 

meet permit limits. EPA claimed that the existing secondary treatment rules and bypass rules established 25 years earlier mandated 

this action. EPA itself mandated the cost of this change in policy 

to be $200 billion nationwide. 

EPA’s mandated blending ban in fact slowed down the ability of 

communities to safely address untreated overflows while eliminating a viable cost effective option that provided treatments and 

met permit limits. Moreover, forcing communities to biologically 

treat wastewater flows jeopardizes the operation of sensitive nutrient reduction facilities, just the type of innovation communities 

want to implement today. 

In 2013, the Eighth Circuit ruled that EPA’s approach was irreconcilable with the adopted rules and vacated the policy as illegal 

under the Federal Administrative Procedures Act. Given the unVerDate Aug 31 2005 14:27 Jul 07, 2016 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\98202.TXT VERN
83 

equivocal nature of the decision and EPA’s decision to not appeal, 

one would have thought the mater would have been closed. Incredibly, EPA then announced it would continue to enforce the vacated 

rule amendments outside the Eighth Circuit, including in the 

Chesapeake Bay States. Communities considering innovative technologies that are sensitive to fluctuations must have this issue resolved before installing those technologies. 

Another multi-billion dollar Federal rule interpretation adversely 

impacting innovation is EPA’s position that all collection system 

overflows are per se illegal and must be eliminated regardless of 

the circumstances. While it goes without saying that no one is in 

favor of a sewage overflow, even the best operated and designed 

collection systems in the Country will occasionally experience overflows and backups. If the system is underwater, it is going to leak. 

EPA’s position is forcing communities to design facilities to address extreme weather conditions under the theory that one might 

be swimming in flood waters. The proliferation of $100 million detention basins and deep tunnels is a direct product of this regulatory edict. As one would expect, mandating excessive collecting 

system improvements comes at a price to other innovative measures that could produce greater benefits, such as green infrastructure, wetlands restoration, water re-use. Consequently, if we want 

such innovation, we must first deal with EPA’s extreme regulatory 

interpretation that is consuming resources and in fact, not producing benefits. 

The final example of outdated regulatory provisions that will continue to misdirect resources relates to waters of the U.S. A waters 

of the U.S. designation carries with it a well-known regulatory presumption. Federal regulations indicate that all waters of the U.S. 

must have standards and are presumed fishable-swimmable unless 

detailed studies are conducted to refute the presumption. Gold book 

criteria, EPA’s high-quality fishery criteria, are presumed to apply 

to those waters, to protect whatever exists in these ditches and 

intermittent streams. 

As a consequence, compliance with this presumption will adversely impact the ability to implement a number of very important 

best management practices, because, as Mr. Longsworth pointed 

out, waters of the U.S. cannot be used for pollution treatment. Consequently, previously authorized cost-effective measures that we 

use to slow down waters and promote nutrient assimilation will 

now be deemed impermissible if they cause, as they will, increased 

plant growth and reduced dissolved oxygen. 

While the existing Federal presumptions may have been appropriate for waters that could reasonably support diverse aquatic life, 

the continued application of those rules to marginal waters will 

certainly result in a broad misallocation of State, Federal and local 

resources. 

Thank you for your consideration of the comments. 

[The prepared statement of Mr. Hall follows:] 

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Senator CARDIN. Thank you for your testimony, Mr. Hall. I thank 

all six of the members of this panel for your contribution, plus your 

willingness to stick to the 5-minutes. I appreciate that very much. 

Mr. Longsworth, I agree with your observation that the local 

water operators are leading the way with changes and reforms and 

innovations. I applaud you. I disagree with your conclusion, you 

won’t be surprised, to know that as it relates to the importance of 

dealing with stormwater and dealing with the waters of the U.S. 

and the Clean Water Act. 

Looking at the Chesapeake Bay, which I am very familiar with, 

the leading increased cause of concern is what happens from storm 

runoff. Agriculture is still the leading source, but the leading 

growth is in stormwater and how we deal with stormwater. We 

have programs that deal with agriculture, most recently the Regional Conservation Partnership programs. But on storm runoff, we 

have limited tools. 

What I want to focus on, if I might for a moment, is the fact that 

I be4lieve in federalism. I really believe that the local water operators are showing us the way, and I applaud the efforts that are 

being made in Green Bay and the Great Lakes and the Chesapeake 

Bay and Camden, which you have been able to do, in putting together ways of dealing with energy, producing your own energy 

sources, that is incredible, taking waste and converting it to energy, taking waste and converting it to fertilizer. That is a win-win, 

helping the customers, dealing with agriculture in a very positive 

way. 

So I guess my question to you, we have the State Revolving 

Funds, we have the WIFIA program, I think Mr. Sigmund, you 

mentioned that. The private-public partnerships, we have our tax 

code which offers certain tools that are available. We have a regulatory framework under the Clean Water Act. How can we improve 

the tools that are currently available to allow more of the innovative approaches that you have suggested? And in that question, if 

I might also add, Mr. Johnson, you raised the question about you 

are trying to conserve the use of water, which means the amount 

of revenues you bring in would be less. So what incentives are 

there to make sure that we conserve, at the same time give you the 

revenue base that you need in order to make the investments of 

the future? Mr. Johnson, we will start with you and then whoever 

else wishes to respond to this. 

Mr. JOHNSON. Thank you very much for that question, Senator. 

There are a number of things that we have done just to kind of 

squeeze the last juice out of the orange, if you would, for what we 

are doing currently. One is switching our payments, our debt service to a longer term, so that we are better matching the assets with 

the number of years that we will be paying debt service on it. Another is moving more of the fixed cost of operating the system into 

a fixed payment from our customers. Right now we are collecting 

about 96 percent of our overall revenue from a variable revenue 

base. The reality is that we have a much larger percentage of our 

costs that are fixed. So we are trying to strike the right balance 

so we can make that work. 

Unfortunately, WSSC has not been able to attract SRF funds, because of the income guidelines that have been established by the 

114 

State of Maryland. So those funds typically go to either smaller jurisdictions or jurisdictions that have a more stressed economy and 

ratepayer base. So if there was some adjustment made in that, certainly it would be beneficial. I think the current investment market 

and banking market has been extremely beneficial to us in that we 

have been able to borrow money at a much lower cost. But at this 

point, most of our payments are actually coming from the ratepayers and very little from the Federal programs. 

Senator CARDIN. Let me stop you there and go to Mr. Sigmund. 

He has been writing lots of notes. Let me see how he wanted to 

respond, and we are trying to keep everybody to our time that is 

available. 

Mr. SIGMUND. Thank you. There really is no one silver bullet out 

there that is going to solve all the issues that we are facing. We 

certainly look for the flexibility, the flexibility in both regulatory, 

the flexibility to be able to finance it. Utilities are looking at what 

we do as a business. We make business, my utility does business 

cases for all of our investments, all of our projects. While there is 

no business case to be made for regulatory compliance, there are 

different ways that you can be in compliance. 

The SRF program, as was mentioned, is a huge component for 

us. The State of Wisconsin, the Clean Water Fund, which is a 

version of the SRF, has been very well run. We use it a lot and 

it is very important to how we do projects. 

I would offer, and one of the things that has been talked about 

with the public-private partnerships, it is becoming a bigger part 

of the business. It is not big for us in Wisconsin, but we do see it 

down the road and tax credits that have been talked about here to 

attract private capital into these public investments we do see as 

an opportunity to bring venture capital folks into the business. 

Senator CARDIN. Let me turn to Senator Boozman. We will have 

a chance, I think, at a second round to let the others respond. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Mr. Sigmund, you talked about the Silver Creek project and all 

the good things that were going on. You also mentioned that there 

was an effort by the EPA to make you do additional regulation that 

when you looked at the benefit versus the cost that there really 

wasn’t much benefit. Can you talk a little bit more about that. 

What is your standard now? What do they want you to go to? 

Earlier in the year last year, I think we had somebody from 

Washington that was here that talked about they had spent a billion dollars, lots of increase in rate pay and things, and were going 

to be asked to spend almost the same amount with no increased 

benefit. Can you talk a little bit about how that is affecting you? 

Mr. SIGMUND. Yes. Our current limit for phosphorus, which is 

the pollutant of concern right now, is 1 milligram per liter, as it 

has been for a long time, for all the Great Lakes dischargers. 

Through the State of Wisconsin regulations, which were approved 

by EPA, we are going to go down to .1 milligram per liter for our 

discharge. That came through a total maximum daily load analysis 

that was done for the Fox River as it discharges into the Bay. 

The two treatment facilities that my utility runs discharge about 

2.5 percent of the total phosphorus that is delivered to Green Bay 

each year. It is not zero, but it is a small amount. As we look to 

115 

go from where our current operation is down to that .1 milligram 

per liter, it was a lot of money for a very small amount. 

We did work in municipal utilities as well as some of the nonprofit groups, worked with the State of Wisconsin, the Department 

of Natural Resources, about 4 years ago to get some rules on the 

books to provide some flexibility. Adaptive management is one, 

trading was another. We are planning to take advantage of the 

adaptive management. We believe that it is a lower cost for our 

customers to work out in the watershed and they will get additional benefits to water quality that they would not get from us 

spending the treatment. 

So that is really an example of the flexibility. We are still going 

to work toward compliance, but it is a different way than just 

straight, our treatments. 

Senator BOOZMAN. So has EPA bought into that? Do they recognize the fact that not only are you doing your best to reduce the 

phosphorus through the point source, but doing all these other 

things? Do they take that into consideration? 

Mr. SIGMUND. EPA did approve the State of Wisconsin’s rules. 

The adaptive management process, as the name goes, is going to 

be looking at it year to year, decade to decade to see if we are making progress. So we need to be doing more than just the bare minimum, we need to actually be making water quality improvement. 

Our Department of Natural Resources we hope will keep us in that 

program as long as we are continuing to make progress. 

So as best as I know, EPA is on board with that. 

Senator BOOZMAN. Good. I think one of the things that we kept 

hearing from all the witnesses was the flexibility piece. Can you, 

Mr. Longsworth and then whoever wants to jump in, can you give 

some examples of flexibility? And then also maybe some examples 

of inflexibility that we run into and that we need to legislatively 

create more flexibility. Or is it just a matter of the agency picking 

and choosing? 

Mr. LONGSWORTH. Thank you for that question. Actually, I think 

Senator Cardin and I probably do agree on protecting local water 

resources. We agree on federalism. 

My point is that Congress gave EPA certain powers and authority in these areas. And that not that States and localities can’t go 

beyond and often do go well beyond what EPA prescribes. You have 

heard a number of different, creative, flexible approaches that have 

been able to fit within the current scheme. I raised two issues that 

I believe where Congress is kind of attempting a kind of national 

command and control that is actually standing in the way of those 

flexibilities, and in which, both instances, I would argue, EPA has 

expanded beyond its statutory authority. That is the type of activity that stands in the way of and costs, absorbs limited resources 

on a local basis. 

Attempting to address those national impacts when in fact they 

have very little local impact, we ought to provide the resources to 

the locality to address those issues that they need. I worked with 

Montgomery County as an advisor on water quality for many years. 

I can tell you that there were a lot of creative and innovative ways 

in which Montgomery County, Maryland has in fact protected its 

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ities, the States and Federal Government in keeping EPA from dictating all the way down through the system exactly how everything 

has to be done. 

Senator BOOZMAN. Thank you, Mr. Chairman. 

Senator CARDIN. Thank you. Senator Whitehouse. 

Senator WHITEHOUSE. Thank you, Chairman, and thank you to 

you and Senator Boozman for holding this hearing. 

I think it was Mr. Kricun who said that our water infrastructure 

was given a D by the American Society of Engineers. What I see 

in Rhode Island is that we have old infrastructure, we are a State 

that has been around a long time, so we have some very old infrastructure. In my lifetime, we were still pulling out wooden water 

piping. We have some nodding heads there from other urban areas 

that have been around a while and have seen that. 

We have a combination of factors that are piling up here. The 

first is we haven’t taken adequate care of the infrastructure that 

is there. Financial pressures have caused us to put off maintenance 

and adequate expenditure and all of this. And so we are seeing the 

infrastructure degraded a bit already. 

Then we are seeing the end of its useful life in many cases, just 

because these things are built for 50 years, 100 years. But it has 

been around that long, so there it is. And then, when we rebuild, 

we tend to build for the projected uses that the old world supported. 

And what we are seeing in Rhode Island is, our sea levels, like 

Maryland, I think Senator Boozman is fortunate that he doesn’t 

have this problem, because he is in Arkansas, but for those of us 

who are coastal States, my sea level is up 10 inches at the Newport 

Naval Station tide gauge. That means a lot for our low-lying wastewater treatment facilities. We have 14 water treatment facilities 

that are at risk now in Rhode Island. We are a small State. In 

Florida, it is something like 570 that are at risk because of the sea 

level rise that is coming up. 

And then you see these rain bursts, which are highly associated 

with climate change, that are new. We had a big on in March 2010, 

dropped 12 inches in 4 days. And England Wastewater Treatment 

Facility in Warwick, Rhode Island, got blown out by all of that and 

people downstream of it had a foot or more of sewage-contaminated 

water in their homes. 

The budget for fixing that comes out of elsewhere, like FEMA 

and emergency response. So it doesn’t get really factored into the 

cost of what you would be avoiding by having adequate infrastructure in the first place. 

So I see us in a situation in which this problem is not just a constant but is going to be coming at us in an accelerating fashion. 

And I see a bunch of heads nodding. I wonder if you would be willing to say on the record what you think the threat of infrastructure 

collapse or under-performance looks like as you look forward. Is it 

a steady ramp upwards, or do you think we are kind of coming at 

a wall? 

Mr. KRICUN. Thank you, Senator Whitehouse. Climate change 

and climate projections are pessimistic. But in New Jersey, we can 

speak of climate history. We had Hurricane Sandy in December 

2012. 

117 

Senator WHITEHOUSE. Camden is close enough to be tidal, isn’t 

it? 

Mr. KRICUN. Yes, we have the Delaware. We were lucky the 

storm was 50 miles to the west. If it had been 50 miles inland, 

Philadelphia and Camden’s plants would have been inundated. But 

Newark’s plant, for example, a 300 million per day plant, was out 

of service for 6 weeks. That is billions of gallons of raw sewage ultimately into the Atlantic Ocean from a storm that already happened. So even if climate stays the same, our infrastructure is inadequate. 

Senator WHITEHOUSE. Your point is that climate change is actually making it worse. 

Mr. KRICUN. Right. So even if it stays the same we don’t have 

enough infrastructure. They are projecting an 18 inch rise in the 

Delaware River by 2050, which is at the level of our plant. So we 

have to plan for not only what has already occurred but also what 

is to occur. So there is a very significant infrastructure gap. 

In addition, as you said, the aging infrastructure, even if climate 

wasn’t a problem, is enough to get us to work quickly to try to improve our infrastructure. 

Senator WHITEHOUSE. And the fact that when the river rises that 

far and it floods your plant, that creates disaster for the community around you, that is not a cost that you get to front load now 

in order to do the fix. You still have to do it out of rates and out 

of WIFIA and Federal support. So it is up to us to be the ones who 

can look ahead and see that problem and help all of our communities through it, correct? 

Mr. KRICUN. That is correct, Senator. The thing is that emergency expenses are far more expensive than doing and planning in 

advance. Also, of course, the events themselves are an adverse for 

our environment, for public health and also for commerce, because 

nothing can go on without clean water Services. 

Senator WHITEHOUSE. My time is up. I thank all the witnesses 

and note for the record there was a lot of nodding of many heads 

during my questioning. 

Senator CARDIN. We will put that in the record, Senator 

Whitehouse. 

Senator Boozman’s initial observation I think is correct and follows up on Senator Whitehouse’s comments. There has been strong 

bipartisan support for water infrastructure improvements. We recognize that. I visited the Baltimore water facility not too long ago 

with Senator Mikulski. It was state-of-the-art when it was constructed 100 years ago. But it needs major improvements. 

We discovered in Baltimore not too long ago a pipe that still was 

a wood pipe. So it goes back some way. Mr. Kricun, you mentioned 

Hurricane Sandy. We will need to talk about adaptation. It is not 

only modernizing, but how do we adapt to new realities of the 

storms that we are confronting. That requires us to work, Democrats and Republicans, to how we can give you the resources to 

deal with this. We know that the customer base, fee-generating, is 

certainly a major source. But it needs to be supplemented. I am 

very interested in the private-public partnerships and how we can 

do this, whether WIFIA is going to be adequate or not under the 

118 

WRDA Act. But we need to look at ways that we can leverage more 

public-private partnerships in dealing with this. 

Mr. Longsworth, I agree with you completely, we have to look at 

more local flexibility. I fully agree that we want to take a look at 

what has happened at the national level that prevents the creative 

activities at the local level. I think there are areas where Democrats and Republicans can agree to give more local flexibility. 

I do want to at least challenge Mr. Hall here in one respect, and 

that is, and I want to give Mr. Kelly a chance to respond also, if 

time permits. I understand blending. Blending, if you meet the permit levels, I understand your frustration. But we are challenged in 

the Chesapeake Bay, we are challenged in the San Francisco Bay, 

we are challenged in the Great Lakes to deal with overall water 

quality. When you do blending, the nutrient level is not improved. 

We have dead zones, and dead zones are devastating to the 

progress that we are making in the Chesapeake Bay. Mr. Johnson, 

your efforts have been very sensitive to deal with being a good 

steward of the Chesapeake Bay. 

So we need to look at the overall objective here too, which is to 

improve the water qualities of our waters. Nutrient levels are critically important, and what you do on wastewater is very much a 

part of the partnerships. We are getting complaints from our farmers that we not doing enough on sediment control on the Susquehanna. 

So you might hit a permit level, but if you are not hitting the 

overall objectives on our strategies to deal with our great water 

bodies, you are creating some challenges. So Mr. Hall, let me give 

you 1 minute and then I will give Mr. Kelly 1 minute to respond. 

Mr. HALL. Certainly, Senator Cardin, and thank you for that 

question. In fact, the permit limits are set to protect the water 

quality objectives of the receiving water. In all the cases that I am 

involved with where we have utilized blending, it is done to protect 

the performance of the treatment plant. And something like a nutrient reduction plant. If you expose it to frequent changes in its 

influent wastewater strength and flow, you decrease its performance. So by instituting blending, you actually improve the plant 

performance. You don’t decrease it. You get an overall better end 

product because of the way the plant is designed. 

So my experience is not that it is a question of, if you blend, you 

have an impact that you don’t want to have. Of course, if that were 

the case, it shouldn’t be allowed. But that is actually not the case, 

it actually protects the wastewater plant so it can properly operate. 

Not the other way around. 

Senator CARDIN. Thank you. Mr. Kelly. 

Mr. KELLY. So in San Francisco, we are planning for climate 

change. In fact, we have seen over the last 5 years two 5-year 

storms, a 25-year storm and a 100-year storm. And we are in a 

drought. So we recognize that we are approaching a change in climate. 

What is really significant about our system, we have a combined 

sewer system. So we actually collect and treat all our stormwater 

and sanitary flow. But what is really unique about our system is 

we have a large amount of storage for stormwater. And when the 

119 

storm event exceeds the capacity of the plant and the storage, our 

box sewers are equivalent to primary treated. 

So one of the things that we really wanted to talk about is the 

State Revolving Fund and some of the flexibilities. One of it is that 

we are excited to see that you increased the term to 30 years. Because a lot of our large utilities are able to get municipal bonds, 

which you get a 30-year at a very low interest rate. So we are excited to see that and we would like to see that on the clean water 

side as well. 

Senator CARDIN. Senator Boozman. 

Senator BOOZMAN. Thank you. 

Mr. Sigmund, in regard to the criteria that you are going to have 

to meet, you are at 1. Will you still have to go down to .1, even 

with the flexibility of the other things that you are doing? 

Mr. SIGMUND. Eventually, and then eventually it could be 10, 20 

years. But in that interim 20-year period, it will be a combination 

of the imrpovemetns that we are able to make at a low cost in our 

facility to get ourselves, currently we discharge at a phosphorus 

level of about .3 milligrams per liter. We can do a little better but 

not much. 

So the difference between the .3 for our flow and the .1, we need 

to be out in the watershed working with agricultural producers to 

get that improvement. 

Senator BOOZMAN. And I understand. My followup is going to be, 

you get down to .5, .4, .3, you can do that fairly easily. It takes effort and it takes expense. But to go from .3 to .1 is a huge jump. 

The other thing that I have heard from so many of you is that 

EPA consumes resources that could be used for positive things. I 

think that is a good example, going from .3, .4, down to .1 as opposed to taking those dollars, those limited dollars, because of 

aging infracture and all the other things that we discussed, and 

then use that on the low-hanging fruit, like you all have done, Mr. 

Kricum. We have limited resources doing a really good job, of taking those and taking the low-hanging fruit and getting some things 

done. 

Mr. Longsworth, or whoever wants to jump in, can you give us 

some other examples of using perhaps resources that are being 

used for perhaps over-zealous rulemaking or whatever in the sense, 

as opposed to using it for things that could be better spent? 

Mr. LONGSWORTH. Well, again, based on my reading of the proposed waters of the U.S. proposal and what EPA has said publicly, 

that in fact there can be waters of the U.S. within an MS4, I am 

not sure how you work with that from a legal perspective. Because 

it seems to me as soon as we have a water of the U.S., that any 

discharge into that water of the U.S. requires its own separate permit. So if in fact you have waters of the U.S. within this larger 

MS4 system, you are going to break up that single permit into a 

lot of other smaller permits for each water of the U.S., which results in a lot of added costs and redundancy. 

Senator BOOZMAN. Has anybody done some sort of a study regarding the increased cost? 

Mr. LONGSWORTH. I have not seen a study on that yet. These are 

all fairly new issues. These are issues, actually, that I have raised 

in the comments that some groups that I work with have subVerDate Aug 31 2005 14:27 Jul 07, 2016 Jkt 000000 PO 00000 Frm 00123 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\98202.TXT VERN
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mitted to EPA but we have not done an economic analysis. But you 

can follow the chain all the way through as to the fact that, if you 

get one permit for an entire large MS4 system or series of systems, 

based on a single or multiple point sources, then you break that up 

and now you have ditches that might be waters of the U.S., depending, and then the State has to come in and create designated 

uses for those. The regulatory system just continues on adding cost 

and energy. 

Senator BOOZMAN. Thank you. 

Mr. Kricum, tell me again, you all have been aggressive and 

have had limited resources and seem to be doing a good job, what 

is the one thing that you got the most bang for the buck out of? 

Mr. KRICUM. I think one thing that is really helpful is the State 

Revolving Fund. Because if you have, if you are improving your 

equipment, you have reduced your O&M savings. But if the debt 

service is up here, there is a rate increase. But if the debt service 

is reduced, then you can accomplish both. 

The one thing that the State Revolving Fund has done in New 

Jersey and could do more broadly is expand it to include green infrastructure and green energy. They just did add infrastructure 

and also they offer principal forgiveness for green infrastructure, so 

it encourages innovation. So by expanding the SRF to include green 

infrastructure, green energy and maybe even offer some principal 

forgiveness as an incentive to try innovative processes, that would 

encourage more cost-effective utilization of limited resources. 

Senator BOOZMAN. Thank you. Thank you, Mr. Chairman. 

Senator CARDIN. Thank you. I would point out that we did provide for green infrastructure within the State Revolving Funds, 

particularly during the Recovery Act. And it is still available, although it is not separately funded today. So it is available. 

In regard to your comments, Mr. Longsworth, on the waters of 

the U.S., we are in the comment period. So I hope that you will 

make those points clear. I don’t think any of us would like to see 

separate permitting in regard to the issues you referred to. 

So I think there is probably more agreement here than disagreement. We should make sure these issues are clarified during the 

rulemaking process. 

I want to thank all the witnesses here today. I found this hearing 

to be extremely helpful in how we can try to be a partner with 

locals in the federalism provisions to make it easier for you to perform your responsibilities. In these days, it is much more complicated, because of the volume issues. You have a lot more population and you have old infrastructure. So how can we work together to make our systems work better to protect public health, 

to deal with the energy challenges, deal with the water challenges. 

I think this testimony today will help us in that regard. 

Again, I thank my Republican ranking member for his cooperation over the last 2 years, Senator Boozman, and thank you all for 

your testimony today. 

[Whereupon, at 10:45 a.m., the subcommittee was adjourned.] 

[Additional material submitted for the record follows.] 

121 

STATEMENT OF HON. DAVID VITTER, U.S. SENATOR

FROM THE STATE OF LOUISIANA

Hearing on ‘‘Innovation and the Utilities of the Future: How Local Water Treatment Facilities Are Leading the Way to Better Manage Wastewater and Water Supplies’’ 

Mr. Chairman, I would like to thank you for calling today’s hearing. I would also 

like to thank our witnesses for testifying before the Subcommittee on Water and 

Wildlife. 

The title of today’s hearing invokes concepts with which few would disagree. 

There’s no question that the Federal Government should foster innovative wastewater and water management practices, and that local treatment facilities are and 

should be leaders in ensuring safe water supplies. Unfortunately, as in so many 

other areas, the Environmental Protection Agency (EPA) is acting as an impediment 

to innovation in the water utility sector. 

In fact, EPA’s hindering of effective water and wastewater treatment is symbolic 

of a larger, systemic problem throughout the agency. Many Americans view EPA as 

a rogue agency that imposes its regulatory will in a manner that harms local communities and is contrary to law. Too often creating unnecessary obstacles to technological improvements and progress, EPA’s policies serve as a disincentive for innovation throughout the public and private sectors. Water and wastewater management 

are routinely frustrated by such challenges. 

For example, EPA has improperly restricted many wastewater utilities from engaging in a treatment practice known as blending. Blending combines biological, 

chemical, and physical treatment processes and is used by wastewater facilities to 

manage large flow variations during major rainfall events. Blending is sometimes 

necessary during major wet-weather events that would otherwise overwhelm treatment systems, and historically the practice has received support from EPA. 

In recent years, however, EPA has enforced a new policy that declares wastewater 

plant blending operations to be illegal. According to John Hall, a minority witness, 

the cost of this new prohibition was projected by EPA itself to exceed $200 billion, 

and the blending ban has ‘‘slowed down the ability of communities to safely eliminate untreated overflows, by eliminating a viable, cost-effective option that provided 

treatment and met permit limits.’’ 

Worse yet, EPA’s blending ban is an unlawful attempt to circumvent Congress 

and the agency’s own, previously established rules. As the Eighth Circuit Court of 

Appeals determined in March 2013, EPA violated the Administrative Procedure Act 

by promulgating blending rules without using the statute’s notice and comment procedures. The court also determined EPA’s ‘‘legislative rule’’ exceeded the agency’s 

statutory authority under the Clean Water Act. 

EPA’s illegal blending policy was a demonstrable failure by EPA to work with 

local communities to manage important water treatment issues, underscoring several fundamental problems with the agency. First, the blending case confirms EPA’s 

disdain for transparency, having attempted to regulate in a manner that directly 

contradicted the Clean Water Act and established policies. Second, the case illustrates the red-tape and bureaucracy the agency seeks to impose on local communities, which rarely have the financial resources to take on the agency as the sewer 

systems did here. Third, it is worth noting that EPA has taken the position that 

this case only applies in the Eighth Circuit, and that the agency has authority to 

restrict blending on a ‘‘case-by-case basis.’’ In other words, through its illegal blending regulation, EPA is now thumbing its nose at the courts, in addition to Congress 

and local communities. 

It should also come as no surprise that EPA’s deeply flawed proposal to revise 

the definition of ‘‘waters of the United States’’ under the Clean Water Act will make 

it even more difficult to effectively manage local water resources. The proposed rule 

would automatically designate ‘‘tributaries,’’ impoundments of ‘‘tributaries,’’ and ‘‘adjacent waters’’ as ‘‘waters of the United States,’’ thereby forcing local communities 

throughout the country to obtain costly permits just so they can properly manage 

wastewater and stormwater conveyances. Under the proposed rule, these same communities will no doubt face increased and crippling citizen suit litigation if their regulatory officials do not accede to the relentless demands of hostile environmental 

NGO’s. Notably, for purposes of this hearing, waste treatment systems do not constitute ‘‘waters of the United States’’ under current regulations, but the proposed 

‘‘waters of the United States’’ rule would create significant uncertainty about the 

scope of this long-standing exemption. Minority witness Jeffrey Longsworth indicated in his written testimony that ‘‘EPA’s overly prescriptive and unjustified mandates and efforts to expand its Clean Water Act jurisdiction to drainage features 

within MS4s in contravention of the limitations set forth by Congress in the Act sigVerDate Aug 31 2005 14:27 Jul 07, 2016 Jkt 000000 PO 00000 Frm 00125 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\98202.TXT VERN
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nificantly hamper and threaten MS4 operators’ ability to efficiently protect local 

water resources.’’ 

EPA’s blending policies and its proposed ‘‘waters of the United States’’ rule both 

demonstrate why the agency’s credibility has diminished in recent years. Today’s 

discussion on innovation in water and wastewater management is important and 

provides a needed opportunity to examine how EPA is impeding local efforts. I appreciate the chairman holding this hearing today, and I look forward to hearing 

from our witnesses. 

Æ