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June 2020 Regulatory Update

June 30, 2020

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the
June 2020 Regulatory Update.

Will the COVID-19 Pandemic Lead to New Clean Water Requirements? It Might.

As the global COVID-19 pandemic continues, there is a growing public health interest to quantify the magnitude of infected symptomatic and asymptomatic individuals within a population to assist local and state health agencies make better informed public policy decisions. Private corporations, public universities, and state and federal government are all partnering with public wastewater utilities in some capacity to sample and analyze raw influent for indications of genetic material from the virus that causes COVID-19.

NACWA was pleased to release on June 29 our Clean Water Utility Considerations for Epidemiological Surveillance of Wastewater, a document highlighting a variety of key thoughts and considerations from clean water utilities across the country that are already engaging in wastewater based epidemiological (WBE) surveillance for COVID-19 or thinking about doing so in the future. Because public policy decisions on infectious diseases and communicating epidemiological data is outside the traditional role of a wastewater utility, it has never been more important for utilities to work closely with local and/or state health departments when exploring this concept.

Even as utilities partner with local health agencies, there are real concerns that sampling for COVID-19 RNA or other infectious diseases will become a future regulatory mandate for clean water utilities. As the U.S. Environmental Protection Agency (EPA) and the Centers for Disease Control and Prevention work to standardize a methodology for sampling and analyzing COVID-19 RNA using RT-qPCR—a modern quantitative technique that amplifies genetic code in relatively small sample sizes (1 Liter samples)—concerns are being raised that this type of sampling could set in motion a regulatory process to require public clean water utilities to sample for individual pathogens or penalizes those that elect not to sample for whatever reason.

The broadening access to qPCR analysis capabilities and the immediate public health needs from the COVID-19 pandemic could be a real game changer for Clean Water Act-related requirements, including how EPA builds the scientific basis for developing water quality criteria. If a pathogen’s presence can be determined with high confidence and within reasonable parameters, EPA could bypass the traditional approach of using bacteria or even viral indicators (e.g., enterococcus or coliphage) of the presence of harmful pathogens and directly develop criteria for individual pathogens. Although EPA has made no recent statements, it has always been interested in the ability to quantify and regulate for individual pathogens. NACWA will continue engage with EPA and state regulators as the issue develops.

Read NACWA’s Advocacy Alert for more details and contact Emily Remmel, NACWA’s Director of Regulatory Affairs at 202/533-1839 or eremmel@nacwa.org.

Top Stories

NACWA White Paper Outlines Funding, Financing Strategies to Help Utilities Address COVID-19 Economic Impacts

NACWA published a white paper on June 9, Funding and Financing Strategies to Address Coronavirus Impact, that outlines various funding and financing options the federal government could pursue to help municipal clean water utilities recover from the current economic challenges facing the sector due to the COVID-19 pandemic.   

The document, which was reviewed by the Association’s Finance Workgroup, comes as many clean water utilities around the nation are facing unprecedented lost revenue due to the widespread economic impacts of the coronavirus pandemic. The white paper outlines direct federal funding action Congress can take in the short-term, as well as some innovative financing solutions that could provide important financial relief in the medium to long-term.   

On the direct federal funding front, the paper notes that while some utilities were on a sound economic footing prior to the pandemic, the impacts of the widespread economic disruption associated with the outbreak are creating serious revenue challenges for many clean water agencies. The white paper also includes several financing strategies that do not require a direct outlay of federal funds that Congress could pursue to assist utilities in recovering from the pandemic’s economic impacts. 

Read NACWA’s Advocacy Alert for more details and contact Nathan Gardner-Andrews, General Counsel & Chief Advocacy Officer at 202/833-3692 or Nathan Garner-Andrews.

NACWA Provides Input on EPA’s Proposed Procedural Overhaul for Guidance Documents

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 on June 22 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 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 utility impacts of the proposal. It is unclear if the proposal itself is a guidance document or a rulemaking. Even though the expressed intention is to improve 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. 

If members have questions, please contact Amanda Aspatore, NACWA’s Chief Legal Counsel or Emily Remmel, NACWA’s Director of Regulatory Affairs, for more information. 

Climate and Resiliency

NACWA, AMWA Host Resiliency Webinar

NACWA and the Association of Metropolitan Water Agencies (AMWA) hosted the final installment of a complimentary 4-part webinar series Dealing with Disruption: Operationalizing Resilience in the Water Sector on June 3. The webinar focused on “Managing Challenges Through Resilience Thinking,” with case studies from three utilities that have incorporated resilience into a wide range of operations and planning. Read the full story in the Clean Water Current.

Contact Cynthia Finley at 202/533-1836 or Cynthia Finley.

Environmental Justice

Virtual River Rally Event Includes NACWA Participation

River Rally, hosted each year by the River Network, brings together a broad range of advocates for inspiring conversations and celebrating progress towards an equitable and sustainable water future.

In lieu of an in-person event in San Antonio this May, the 2020 River Rally went virtual, being held online over three weeks from May 18 – June 7th. NACWA staff participated in a Peer Call rally session on Climate Adaptation and Resiliency Planning. NACWA joined with local and national leaders in a panel discussion and breakout group conversation on ways to approach climate adaption planning. Read the full story in the Clean Water Current.

Contact Cynthia Finley at 202/533-1836 or Cynthia Finley.

Regulatory Policy

NACWA Weighs in on New England MS4 Permit and PFAS Regulatory Determination

NACWA submitted comments on June 8 on EPA Region 1’s proposed permit modifications for small municipal separate storm sewer systems (MS4s) in Massachusetts and New Hampshire. NACWA also submitted comments on June 10 to EPA on its proposed regulatory determination—the first step of potentially regulating PFAS for drinking water systems under the Safe Drinking Water Act (SDWA). Read the full story in the Clean Water Current.

Contact Emily Remmel at 202/533-1839 or Emily Remmel.

Stormwater

Association Comments on 2020 Reissuance of Industrial Stormwater MSGP

NACWA submitted comments on June 1 on EPA’s most recent iteration of the multi-sector general permit (MSGP) for stormwater discharges associated with industrial activity.

Traditionally, NACWA’s members that are permitted under the MSGP’s Sector T, Treatment Works section—which includes wastewater plants that have a design flow of more than 1 million gallons per day or are required to have an approved pretreatment program—have not experienced significant compliance issues with the permit’s terms and their stormwater discharges have not had negative impacts on water quality.

However, NACWA has concerns with the proposed 2020 MSGP and the considerable impacts it could have on the municipal clean water community because it adds monitoring requirements and control measures that will not likely result in tangible water quality improvements. Read the full story in the Clean Water Current.  

Contact Emily Remmel at 202/533-1839 or Emily Remmel.

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