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March 2022 Regulatory Update

Mar 31, 2022

The National Association of Clean Water Agencies (NACWA) is pleased to provide you with the March 2022 Regulatory Update.  

Regulatory Perspective 

March Madness Heats Up on PFAS Front, State and Federal Movement Expected in Months Ahead 

Across the country, PFAS issues kicked into high gear this month and NACWA members should be keeping a close eye on happenings in their state. With a variety of PFAS actions pending at both the federal and state level, and some efforts more practical than others, this activity is likely laying the groundwork for an onslaught of PFAS legislative and regulatory activity going into the summer and prior to the midterm elections.  

At the federal level, the U.S. Environmental Protection Agency (EPA) has a number of efforts underway including a hazardous substance designation under the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) for PFOA and PFOS.  

A proposed rule sent to the White House’s Office of Management and Budget (OMB) earlier this year is perhaps one of the most concerning aspects of the Biden Administration’s PFAS actions thus far because of the potential liability impacts for the clean water community due to our passive acceptance of industrial and domestic wastewater and our traditional residuals management efforts that likely contain some concentration of PFAS.  

NACWA and the Association of Metropolitan Water Agencies (AMWA) met with OMB in March to highlight the public water sector’s concerns with this proposed rule – whatever it may include or not include. NACWA and AMWA made the case to OMB and EPA that they must consider appropriate reportable quantities, the limitations of no real treatment capability for PFAS and the fact that local communities should not bear the financial burdens for pollution created and caused by PFAS manufacturers and producers. It is unclear at this time if or when OMB will kick this rule back to EPA to be revised or signed as is and subsequently issued as a proposed rulemaking in the Federal Register.  

EPA’s Office of Enforcement and Compliance Assurance (OECA) is also poised to release a new PFAS Analytical Tool this summer that uses software similar to its Enforcement and Compliance History Online (ECHO) database. This tool is supposed to be a much more user-friendly platform for the public to find and search for PFAS data reported under National Pollutant Discharge Elimination System (NPDES) permits.  

NACWA is concerned that once PFAS monitoring requirements are placed into permits, which we are now seeing (e.g., see the EPA-issued draft NPDES General Permit for medium wastewater utilities in Massachusetts requiring quarterly monitoring for influent, effluent and biosolids for 6 PFAS constituents), this data will be automatically uploaded into the PFAS Analytical Tool via electronic Discharge Monitoring Report (DMR) requirements. Without the proper caveats or context that these data are for PFAS monitoring only and are collected using an unpromulgated methodology and not to be used for compliance or enforcement purposes, the public could easily and badly misconstrue this information. NACWA members should be aware this tool will be released this summer and any data collected could become more easily accessible.   

On the state level, and seen in the below article, Maine’s Legislature has taken a significant and impractical approach to PFAS in biosolids. Without the investment to first establish a comprehensive monitoring program to understand PFAS concentrations in municipal biosolids and industrial sludge, Maine originally placed a moratorium on land application of biosolids and sludge in 2019 and is now proposing a complete ban on it. With several amendments made to the language over the past two months, the bill has passed out of committee and is now primed to go to the full floor for a vote. NACWA has been working to advocate against this flawed bill, but it could create a legislative ripple that may be seen throughout the country if it is signed by the governor. 

To end on a positive note, Wisconsin’s National Resources Board (NRB) is looking at more practical regulatory PFAS policies for the state. State drinking water, surface water and groundwater standards were recently proposed by the Wisconsin Department of Natural Resources (DNR). The NRB rejected DNR’s proposed drinking water MCLs (20 ppt for PFOA and PFOS, individually or combined) and amended an increase to 70 ppt. It also rejected DNR’s groundwater standards that were recommended to be set at 20 ppt with preventative action limits of 2 ppt for PFOA and PFOS.  

The NRB, however, did approve the proposed surface water standards which are a combination of narrative and numeric criteria (8 ppt for PFOS for all waters except those that do not naturally support fish and do not have downstream waters that support fish, and 20 ppt for PFOA for waters classified as public water supplies).  

While the rule must be approved by the governor and promulgated into Wisconsin’s Administrative Code, the practical step offered for NPDES permittees are pollutant minimization plans (PMPs) and not straight-to-effluent limitations. The state believes, based on past PMPs for other similar pollutants and initial data demonstrating low initial concentrations of PFAS in effluent, there will only be a limited number of indirect industrial dischargers needing to install treatment technology. Further, the state is indicating that if treatment does become necessary, a permittee can apply for an economic variance if “substantial and widespread adverse social and economic impacts” would occur. This source control focus is a practical effort to understand and mitigate PFAS from entering the treatment works in the first place. 

Contact Emily Remmel, NACWA’s Director of Regulatory Affairs for questions or to discuss PFAS issues unfolding in your state. 

Top Stories 

White House FY23 Budget Proposal Increases EPA Funding with Mixed Results for Water Programs

The White House released its proposed Fiscal Year 2023 (FY23) Federal Budget on March 28. The long-awaited proposal lays out the President’s request for how to advance the Biden Administration’s priorities through annual spending in the federal fiscal year beginning October 1.  

The President’s Budget is a proposal to Congress, which ultimately holds the responsibility of drafting annual spending bills. Of interest to NACWA members, the budget proposes a nearly 25% increase in EPA’s current overall funding level from $9.5 billion to $11.9 billion, which would involve implementing funding for water infrastructure that was provided through the Bipartisan Infrastructure Law, as well as direct new spending for related areas including environmental justice and climate change. As a result, much of the proposed funding for clean water remains level compared to FY22 enacted levels.  

Specifically, the budget would provide the Clean Water State Revolving Fund (CWSRF) with level funding at $1.64 billion and the Drinking Water State Revolving Fund (DWSRF) at $1.13 billion, and requests that not less than 10 percent of the CWSRF and 14 percent of the DWSRF be used by states to provide grants, principal forgiveness, and negative interest loans. Note that this annual spending is on top of the major SRF influxes provided through the Bipartisan Infrastructure Law, so total funding to the SRFs in FY23 will be far above a typical year.   

However, while the baseline SRFs do not see a boost in the budget, other important water programs do see increases. Notably, the Water Infrastructure Finance and Innovation Act (WIFIA) program would be funded at $80 million, and the Sewer Overflow and Stormwater Reuse Grants would receive a major increase to $280 million in FY23. Getting significant funds to grow that program has been a key NACWA priority.  

Another priority, EPA’s Workforce Grants program, would also see a sizeable plus up to $17.7 million – compared to less than $5 million received so far. The budget also proposes a new $25 million water sector cybersecurity grant program. Additionally, the Alternative Water Source Grants Pilot Program is funded at $25 million, which would help with water reuse and recycling projects. These are all important programs and NACWA commends the administration for prioritizing them.  

On environmental justice (EJ), EPA requests a major increase in funding – $300.8 million – to stand up a new national office led by a Senate-confirmed Assistant Administrator that would guide policymaking for the national program offices and assist EJ implementation efforts within the regions. See the top story below for more information.  

To supplement the budget, EPA also released an FY 2022-2026 Strategic Plan, which serves as a marker for the Agency’s priorities over the next four years.  

Beyond EPA priorities, the proposed budget includes a significant increase in funding for the Building Resilient Infrastructure and Communities (BRIC) program, which supports states, local communities, tribes, and territories as they establish hazard mitigation projects with the goal of reducing the risks faced by disasters and natural hazards. The Federal Emergency Management Agency’s (FEMA) Pre-Hazard Flood Mitigation Assistance Grants program would also stand to gain greatly from an increase of funding from $9 million in FY22 to $88 million in the proposal.  

Additionally, U.S. Department of Agriculture (USDA) conservation programs, including the Environmental Quality Incentives Program and Conservation Stewardship Program, would see increases to make up a combined pot of funding of approximately $1.7 billion for FY23.  

The budget also proposes a continued funding for low-income household water customer assistance. The budget proposes a modest increase for the Low-Income Home Energy Assistance Program (LIHEAP) and would allow water bills to be eligible alongside energy through that program – a similar but more controversial approach than the current emergency water assistance available through the Department of Health and Human Services. NACWA staff is reviewing this proposal and discussing with other impacted stakeholders.  

The budget submission comes on the heels of a response from EPA to NACWA’s February 24th letter to Administrator Michael Regan outlining the Association’s budget priorities for the coming year.  

Congress has had a slow start to developing FY23 appropriations bills after passing the FY22 Omnibus, but activity for next year will likely begin in the coming weeks. This also means that the FY23 earmarks process is getting underway – an area of increasing interest for NACWA members. Utilities are encouraged to engage now with their Congressional delegation on funding priorities if they seek earmarks for clean water projects.  

Contact NACWA’s legislative team with any questions or to discuss further.  

EPA Prioritizes Environmental Justice in Strategic Planning and Hints at Possible SEPs Policy Change

EPA’s proposed budget for fiscal year (FY) 2023 and FY 2022-FY 2026 Strategic Plan both reflect the Biden Administration’s ongoing commitment to advancing environmental justice (EJ) initiatives in the coming months.  

The draft budget includes a requested $300.8 million for EPA’s EJ programs. That spending would in part fund the creation of a new national office led by a Senate-confirmed Assistant Administrator position, as well as EJ grant programs and assistance for local governments looking to address EJ issues.  

The Agency’s strategic plan correspondingly calls on EPA to support state and local government EJ efforts and promote community-driven responses to environmental challenges.  

The plan likewise sets compliance review and audit targets for EPA to assess state civil rights programs related to the receipt of federal funding “to ensure financial assistance is not being used in a manner that discriminates.”  

Interestingly, the strategic plan also instructs EPA to incorporate supplemental environmental projects (SEPs) into settlements “where appropriate and to the extent permitted by law and policy.” SEPs are voluntary projects undertaken by defendants in enforcement actions that provide environmental benefits to local communities and help offset penalties.  

While SEPs have long enjoyed widespread bipartisan support, the Trump Administration severely limited their use in an internal Department of Justice (DOJ) regulation. The strategic plan, however, notes that those limitations “are now under review at DOJ,” perhaps signifying that the Biden Administration intends to remove some of the current barriers to the use of SEPs in the coming months. 

Many of EPA’s proposed EJ initiatives align with NACWA’s Statement of Principles and Recommended Actions on Environmental Justice. NACWA’s EJ Committee will continue to lead the Association’s efforts to further engage with the Biden Administration on these issues going forward. As a reminder, the EJ Committee will be hosting its first virtual meeting next Thursday, April 7 from 3:30 – 5:00 p.m. (Eastern).  

Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions.  

Emerging Contaminants

NACWA Partners with Utility Member on Op-Ed Opposing Flawed State PFAS Legislation 

NACWA recently teamed up with a member utility, the Sanford Sewerage District in Maine, to co-author an opinion editorial highlighting significant flaws with a state legislative effort on PFAS in Maine. The op-ed, Putting PFAS in Landfills is not the Right Solution, was published online March 30 in the Bangor Daily News.  

The Maine Legislature is moving quickly on PFAS, spurred in part by fears from some citizens and local farmers. Concerns over PFAS contamination has been prevalent throughout local media – although not always based on actual facts – and the state legislature has responded. Read the full story in the Clean Water Current

Environmental Justice

NACWA Seeks Diversity, Equity & Inclusion Plans from Member Utilities 

As part of the NACWA Statement of Principles and Recommended Actions on Environmental Justice, which was approved by the NACWA Board of the Directors in 2021, the Association is committed to expanding utility peer-to-peer learning and exchange opportunities around diversity, equity and inclusion (DE&I) efforts. NACWA members are at various points in developing and implementing DE&I plans, and some have expressed interest in seeing how other utilities are handling their initiatives. Read the full story in the Clean Water Current

NACWA Environmental Justice Committee to Hold First Virtual Meeting on April 7 

NACWA’s newly formed Environmental Justice Committee will hold its first virtual meeting on Thursday, April 7th from 3:30 – 5:00 p.m. (Eastern). 

Members can get caught up on the inaugural Environmental Justice Committee meeting held at 2021 NACWA’s Winter Conference by reviewing the presentations provided by the Committee Co-Chairs, Senior Counsel at the New York City Law Department and NACWA Legal Affairs Committee Co-Chair Devon Goodrich, and Vice President – Senior Project Manager for Wade-Trim Associates, Roger Cooley. Read the full story in the Clean Water Current.  

If members want to join the Environmental Justice Committee, please contact Amanda Aspatore.  

Regulatory Policy

NACWA Recommends Changes to EPA’s Draft Greenhouse Gas Inventory 

NACWA submitted comments March 17 on EPA’s Draft Inventory of US Greenhouse Gas Emissions and Sinks: 1990-2020 as part of the public review process. The annual Inventory provides nationwide estimates for greenhouse gas emissions for different sectors, including wastewater treatment, and is intended to be used only for informational purposes. 

The wastewater treatment category in the Inventory includes publicly owned treatment works (POTWs), septic systems and industrial wastewater treatment systems. NACWA has reviewed and commented on the POTW emissions estimates in the Inventory since 2007, recommending revisions to characterize the sector’s emissions more accurately. Read the full story in the Clean Water Current.  

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

Security and Emergency Preparedness

White House Warns of Potential Cyber-Attacks on Critical Infrastructure 

The White House issued a statement on March 20 about an increased potential for Russian cyber-attacks against the US, urging owners and operators of critical infrastructure to increase their cybersecurity protections. A fact sheet includes cybersecurity steps that should be taken immediately. 

NACWA encourages all of its members to join the WaterISAC to receive all cybersecurity and other security information that is relevant to water utilities. WaterISAC provides utility-specific resources and can assist utilities if they experience a cyber incident. Read the full story in the Clean Water Current

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

Water Reuse

WRAP Action Item is a Wrap! White Paper Highlighting NPDES Permitting Strategies for Water Reuse is Finalized 

At the WateReuse Symposium in San Antonio March 7-9th, NACWA, the WateReuse Association, EPA, and the Association of Clean Water Administrators (ACWA) were pleased to announce the completion of Water Reuse Action Plan (WRAP) Action Item 2.2.6, Navigating the NPDES Permitting Process for Water Reuse Projects

The white paper was a collective effort by clean water utilities, associations, state regulatory authorities, and EPA to promote collaboration between permit writers and communities interested in furthering water reuse initiatives. Its goal is to help all parties navigate the complex regulatory frameworks involved in water reuse projects. Read the full story in the Clean Water Current.  

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

Workforce

New Toolkit Available to Help Recruit a More Diverse Workforce 

The Value of Water Campaign recently released a new toolkit that can help utilities in recruiting a more diverse water workforce, with a particular focus on attracting underrepresented groups such as women, younger employees and people of color. 

The toolkit includes many kinds of communications templates to help utilities reach potential employees, including customizable social media ads, videos, brochures, and bus shelter advertising. The templates are available in both English and Spanish and can be downloaded and used free of charge. Read the full story in the Clean Water Current

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