NACWA Provides Input on EPA’s Proposed Procedural Overhaul for Guidance Documents
(June 24, 2020) – With a short turnaround for public comment, EPA published a proposal that would “increase the transparency of [its] guidance practices and improve the process used to manage EPA guidance documents” on May 22. NACWA submitted comments to the Agency earlier this week encouraging increased transparency, especially the establishment of a dedicated and easily accessible public portal that houses active guidance documents in an orderly fashion, as beneficial to the broader regulated community.
EPA also proposes to include a public petition process of active guidance documents where the greater public can ask the Agency to modify or withdrawal active guidance. NACWA commented that “new scientific information, ‘lessons learned’ from implementation, and new legal precedents are just some of the factors that may justify amendments to EPA guidance.” EPA should have a transparent process on how it plans to consider input, review petitions, and make decisions.
However, NACWA’s comments also highlight the concerns with the potential scope of the procedural impacts and the utility of the proposal. It is unclear if the proposal itself is a guidance document or a rulemaking. Even though the expressed intention is to foster clarity and transparency concerning EPA guidance, the regulated community is left without any real understanding of the legal implications or the costs and benefits of such a path forward on guidance.
Impacts to the clean water community particularly are at issue here with how EPA will address 304(a) water quality criteria as these criteria documents provide “guidance” in the form of recommendations to the states and information the states must consider when reviewing water quality standards periodically. NACWA is asking EPA to expressly address this issue before
finalizing the rulemaking. Because states frequently do not have the resources to do anything but adopt them in their entirety, these criteria often ultimately have significant ramifications for the clean water community and effectively function as the type of “guidance” addressed by the proposal, or even arguably as regulations.