April 2019 Regulatory Update

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the April 2019 Regulatory Update. Please contact Chris Hornback, Cynthia Finley, or Emily Remmel with any questions about NACWA’s regulatory advocacy.

Regulatory Perspectives – How Long Will Recent Policy Changes Last?

This month’s reversal of the Obama Administration’s stance regarding Idaho’s human health criteria (see Top Stories) is just the latest in a string of water-related actions taken by the Trump Administration that are being criticized by environmental activist groups. Unfortunately, in many instances, rational policy decisions are being cast simply as ‘environmental rollbacks’ without consideration of the true issues and challenges at hand. When thoughtful regulation, regardless of what administration issues it, is cast in a political light, it becomes harder for rational stakeholders to have a conversation about what really makes sense.

The long-term question is whether anything issued by the Trump Administration will be able to stand up either to legal challenge – of which there are already several – or to the actions of future administrations. Just as the Trump EPA is reversing Obama EPA policy decisions, the next Democratic administration will no doubt work to put in place its own policies. The intense political environment we find ourselves in likely means that even sound policy decisions made by the Trump Administration will be targeted in the future. And we may experience a larger pendulum swing in the other direction.

Unfortunately, it is the regulated community that suffers from this policy see-saw. This is nothing new in environmental policy making – policies and regulations always change from one administration to the next – but the extent to which we are seeing policies change based on mere political preference and the level of political rancor around these decisions is more acute than at anytime in recent memory. This suggests that we can anticipate a bigger than usual backlash by the next Democratic administration.

Despite this political back-and-forth over environmental regulation, and regardless of what political battles may come, NACWA will continue to do what it has always done on behalf of its members – advocate for responsible, rational, and science-based regulatory policy that protects the environment and public health while also being fiscally responsible with public ratepayer dollars.  And we will continue to do this in a nonpolitical fashion.  Political winds may come and go, but the vital role NACWA members play in their communities will never change. 

--Chris Hornback, Deputy CEO

Top Stories

Consistent with NACWA Comments, EPA Approves Idaho Human Health Standards

The US Environmental Protection Agency (EPA) announced in a letter dated April 4, 2019, that it was approving Idaho’s new and revised human health criteria, which is essentially a complete reversal from the position taken by the last administration.

During the last few years of the Obama Administration, several states encountered resistance from EPA as they worked to develop water quality criteria for the protection of human health. While the Clean Water Act (CWA) authority to set criteria rests solely with the states, EPA was pressing the states to change key aspects of their human health criteria to be more consistent with federal policy preferences.

Despite EPA guidance that allowed states some flexibility in areas such as establishing fish consumption rates and selection of an acceptable incremental cancer risk level, the Obama EPA pointed to tribal treaty rights in an effort to push the states to establish more protective standards. In Idaho, EPA had indicated in January 2017, just before the Trump Administration took office, that what the state had proposed for its revised human health criteria would ultimately not be approved by EPA. As it had done previously in Washington State, EPA was hoping that an early signal of disapproval would convince the state to back down on its proposal.

NACWA weighed in on the Idaho proposal, as well as earlier efforts in Washington, underscoring that Idaho had “done its homework to consider the current science and EPA guidance and has made the tough policy and risk decisions to develop a rule that it believes protects human health for the citizens of the state and Native American tribes within the state—responsibilities that lie squarely within Idaho’s purview.”

In performing its CWA-required review function—whether during the rule development process or during its official standards review—NACWA believes EPA must not overstep its authority and substitute its policy preferences over legitimate state policy decisions that are “consistent with the applicable requirements” of the CWA. The Agency’s April 4 letter approving Idaho’s standards reaffirms the state’s lead role and includes language that will help in other states where this issue has arisen. 

One such state is Washington, where recent developments suggest that EPA may also be moving toward backing away from its federal promulgation of standards for that state. EPA opened a public comment period on April 8 on a proposal to reverse its 2016 decision on the state’s standards that led to the federal promulgation, but then posted a letter saying that no approval to open a docket on the issue had been given.

Industry groups have petitioned EPA to reconsider its federal promulgation and the positions taken in Idaho would certainly indicate that EPA may back away from its rule in Washington. But Washington state officials are now signaling that they do not support a reconsideration of the rule, even though it would allow them to proceed as they had originally intended, so it is unclear what lies ahead for that state.

The Idaho decision may also be helpful in Maine and a handful of other states where these human health criteria issues have been front and center. NACWA is continuing to track the issue and will provide updates when available.

Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.

Water Office Chief Highlights Non-Regulatory Programs as Priorities

On April 3, Dave Ross, Assistant Administrator for EPA’s Office of Water, kicked off the 2019 National Water Policy Fly-In plenary session and discussion by stressing the value of the partnership EPA has with the water sector, and thanking the audience of water professionals for all the work they do to protect human health and the environment.  Noting the activity of his office directors in managing a number of rulemakings and other initiatives, Ross chose to highlight three non-regulatory programs as the top issues on his mind at the moment. At the top of the list was water reuse. EPA has been working to develop a Water Reuse Action Plan, which it hopes to release a draft in September, and Ross stressed his interest in accelerating efforts in this space, using the federal government’s funding power. Ross also stressed that the Action Plan would not dictate “how you do” reuse, but instead seek to remove barriers and incentivize more work in this area. EPA opened a docket for members of the public to submit comments to help inform the Water Reuse Action Plan.

In highlighting his second top issue, water workforce, Ross thanked the “silent heroes” that work every day operating the nation’s water and wastewater utilities. He noted a few of the initiatives EPA has underway already, including working with the Veterans Administration to recruit workers, but also that EPA was “close, but not ready, for an announcement on a coordinated federal initiative” on water workforce.

Finally, Ross highlighted his personal interest in increasing coordination among the federal family on water issues, noting the formation of a “water cabinet,” with the goal of leveraging their collective resources together to advance work in the water space.

Following Ross’ remarks, leaders from the Office of Water’s four main offices provided a more detailed look at the work they have underway, including a rulemaking on peak wet weather flows (blending)—with a proposal expected by the end of 2019; development of recreational criteria for coliphage—with external peer review expected in 2020; work on evaluating the risk of PFAS in biosolids and in drinking water, and more.

Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.

NACWA Discusses Integrated Planning with EPA

NACWA met with staff from EPA’s Office of Water in late March to discuss implementation of the recently enacted Water Infrastructure Improvement Act.  Among other things, the legislation incorporates integrated planning principles into the Clean Water Act.

NACWA focused on two important implementation issues during the meeting – what additional information and guidance EPA headquarters could provide to EPA regional offices and states to help advance integrated planning, and how the new Municipal Ombudsman office created by the legislation will be set up. 

NACWA noted that while the Association is working to provide assistance to its members on how best to utilize the legislation to pursue integrated planning projects, additional guidance for EPA regional offices and states on how to review and approve integrated planning proposals could be very helpful – especially in the permitting context.  This was an issue raised at a recent meeting of state water regulators that NACWA attended, and NACWA emphasized with EPA that getting permit writers more comfortable issuing permits with integrated planning principles will be critical to successfully implementing the legislation.

On the issue of the new Municipal Ombudsman office, EPA is still working internally to develop the office and has made no final decisions on how it will be structured.  The Agency is interested in hearing from stakeholders on this issue, and NACWA will continue engaging with EPA staff over the coming months with input.  Of particular concern to NACWA is ensuring the Ombudsman office will play its intended role of being a resource to municipalities on regulatory questions and helping ensure regulatory consistency across the Agency’s programs. 

NACWA believes that additional money will be necessary to help EPA successfully implement the new legislation and is requesting $2 million in new appropriations for EPA in Fiscal Year 2020 to help fund these important new initiatives. 

Contact: Nathan Gardner-Andrews at 202/833-3692 or ngardner-andrews@nacwa.org.

Biosolids

NACWA, WEF & WRF Discuss Biosolids Program with EPA

NACWA members and staff, along with the Water Environment Federation (WEF) and the Water Research Foundation (WRF), met with senior EPA Office of Water officials on April 4, during Water Week 2019, to discuss current and future challenges facing the biosolids program.

In light of the recent EPA Office of Inspector General (OIG) report—which highlighted areas that EPA’s Office of Water purportedly could do more to evaluate the risk posed by land application—NACWA, WEF and WRF sought the meeting with Deborah Nagle, Director of the Office of Science and Technology, and Andrew Sawyers, Director of the Office of Wastewater Management, to discuss how the water sector groups could help EPA strengthen the biosolids program. Read the full story in the Clean Water Current.

Contact: Chris Hornback at 202/833-9106 or chornback@nacwa.org.

Emerging Contaminants

EPA Testifies Before Senate on PFAS

The US Senate’s Committee on Environmental and Public Works (EPW) held a hearing on March 28, entitled “Examining the Federal Response to the Risks Associated with Per- and Polyfluoroalkyl Substances (PFAS).”  David Ross, Assistant Administrator for EPA’s Office of Water, testified along with Maureen Sullivan, Dr. Patrick Breysse, and Dr. Linda Birnbaum with the Department of Defense, Centers for Disease Control and Prevention, and the National Institute of Health, respectively. Read the full story in the Clean Water Current.

Contact: Emily Remmel at 202/533-1839 or eremmel@nacwa.org.

Funding & Finance

EPA Announces FY 2019 WIFIA Funding Availability; Members Urged to Apply

On March 29, EPA announced its Notice of Funding Availability for the Water Infrastructure Finance and Innovation Act (WIFIA) program for 2019.  This is the third round of funding that has been made available under the program. This new round of WIFIA funding would provide up to $6 billion in credit assistance which, combined with other sources, could support $12 billion in water infrastructure projects.  According to EPA, this round of funding would focus on prioritizing construction-ready projects in three areas: water reuse and recycling, reducing exposure to lead and addressing emerging contaminants, and updating aging infrastructure. 

EPA is hosting a series of information sessions to provide prospective borrowers with more information.  Additional information, including how to apply for the funding, is available on EPA’s website.

Pretreatment & Pollution Prevention

California Pursues Wipes Legislation; Washington, DC Proposes Nation’s First Wipes Regulation

A state bill to address the labeling of both nonflushable and flushable wet wipe products is moving the through the California legislature and recently passed out of two committees. AB 1672 (Bloom) is being sponsored by the California Association of Sanitation Agencies (CASA) and would establish labeling requirements and performance standards for wet wipes based on the International Water Services Flushability Group (IWSFG) flushability specification. Read the full story in the Clean Water Current

The District of Columbia (DC) passed the nation’s first wipes bill in 2016, and the DC Department of Energy and the Environment (DOEE) proposed regulations on March 14 to set standards that wipes must meet to be labeled “flushable” and requires that non-flushable wipes be labeled with a statement that they are not flushable and a “Do Not Flush” logo.  NACWA recommended changes to the proposal in comments submitted April 15.  Read the full story in the Clean Water Current.

Contact Cynthia Finley at 202/533-1836 or cfinley@nacwa.org.

Water Quality

Court Rules in Montana Nutrient Variance Litigation

The U.S. District Court for the District of Montana issued a ruling March 25 in a case brought by environmental groups, which challenged EPA’s approval of Montana’s nutrient variance for municipal dischargers. The variance had been issued to 26 municipalities based on the determination that municipal treatment plants would not be able to afford to meet the Montana’s stringent standards for nitrogen and phosphorus. To read the series of rulings the Court made, see the full story in the Clean Water Current.

Contact: Amanda Waters at 202/530-2758 or awaters@nacwa.org.

Water Reuse

Water Sector Convenes to Discuss Development of National Water Reuse Action Plan

The WateReuse Association convened a water sector gathering on April 18 in Los Angeles where a variety of water industry experts discussed EPA’s current draft Discussion Framework and the development of a National Water Reuse Action Plan. Last month, EPA Assistant Administrator for the Office of Water, David Ross publicly announced the development of the Action Plan which is part of a larger effort to coordinate with other federal agencies, especially the Department of Energy on water security efforts. EPA is seeking input on the Discussion Framework and has opened a docket for public input. EPA will be reviewing comments and developing a draft Water Reuse Action Plan for release this September. Read the full story in the Clean Water Current.

Contact: Emily Remmel at 202/533-1839 or eremmel@nacwa.org.