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Washington Policy and Regulatory Updates

Our ENS Federal Report provides a summary and the status on select legislative and regulatory actions.
We normally issue a Report when both Chambers are in session.

ENS Federal Report – October 19, 2018

USEPA Regulatory Agenda – Key Water Resources Initiatives

This week, the U.S. Environmental Protection Agency (USEPA) released an update about the Agency’s regulatory plan.  The document describes the regulatory and deregulatory issues the Agency expects to pursue.  Below is a summary of the Agency’s regulatory efforts for key water resources initiatives as described in the update.

Provide for Clean and Safe Water

While the Clean Water Act (CWA) and Safe Drinking Water Act (SDWA) have made significant progress to ensuring safe and clean water resources, challenges still remain.  These challenges include: nutrient loadings, storm water runoff, invasive species and drinking water contaminants.  To address these challenges, USEPA must work with State and tribal partners to develop new and innovative strategies, in tandem with traditional regulatory strategies.  USEPA plans to address these identified challenges through rulemakings.

Waters of the U.S. Rule

As instructed by EO 13778, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” USEPA and the US Department of the Army are undergoing a two-step process to repeal and revise the Waters of the U.S. (WOTUS).  During Step 2 of the process, revising the definition of WOTUS, agencies will to pursue a public-notice-and-comment rulemaking, which will consider defining “navigable waters” in a manner that more closely aligns with Justice Antonin Scalia’s opinion in the Rapanos decision.

In a February 6, 2018 published rule, agencies provided an applicability date to the 2015 WOTUS rule of February 6, 2020 to provide continuity and certainty for the regulated entities, States, Tribes, and public.  Until a new definition is finalized, agencies will continue to implement the regulatory definition that was in place prior to the WOTUS 2015 Rule change.

National Primary Drinking Water Regulations for Lead and Copper – Long Term Revisions

The Lead and Copper Rule (LCR) requires that water systems sample taps in homes with leaded plumbing and, depending on sampling results, take actions to reduce lead and copper exposure.  Response actions could include corrosion control treatment, public education, and lead service line replacement.  However, national attention to lead and copper contamination in communities’ water supplies has highlighted the challenges to LCR, such as that the rule’s structure only compels protective actions after public health risks are identified.

Key challenges to the LCR include: the rule’s complexity, degree of flexibility and discretion it affords systems and primacy state with regard to optimization of corrosion control treatment, compliance sampling practices, and limited specific focus on key areas of concern.  USEPA is evaluating the costs and benefits of potential revisions and assessing whether the benefits justify the costs.

National Primacy Drinking Water Regulations for Perchlorate

USEPA has determined that perchlorate, an inorganic chemical found in explosives, rocket propellants and road flares, as well as an organic chemical found in arid climates, meets SDWA’s three criteria for regulating a contaminant.  USPEA and FDA scientists worked collaboratively to develop biological models in accordance with SAB recommendations and USEPA will utilize the best available peer reviewed science to inform its regulatory decisions.

Peak Flows Management

Increased wet weather flows can adversely affect publicly owned treatment works (POTWs) because increased flows can exceed POTWs’ capacities to provide the same type of treatment to all incoming wastewater.  POTWs’ secondary treatment units are the most at risk.  USEPA plans to purpose updates to the regulations to clarify permitting procedures for POTWs with separate sanitary sewer systems under wet weather operational conditions.  The goal is to ensure a consistent national approach for permitting POTWs that ensures efficient treatment plant operations, as well as the public’s protection from potential adverse health effects from inadequately treated wastewater.

Clean Water Act Section 404(c) Regulatory Revision

USEPA announced in June of this year that it would initiate a regulatory update to the Agency’s role in permitting discharges of dredged or fill material under CWA Sec. 404(c).  USEPA’s current regulation allows for the Agency to veto a permit (at any time) issued by U.S. Army Corps of Engineers or an approved state that allows for discharges at specified disposal sites.  The goal of USEPA’s effort on this issue is to increase the predictability and regulatory certainty for landowners, investors, business owners, and other stakeholders.

USEPA will consider, at minimum, changes to USEPA’s 404(c) review process that would govern USEPA’s future use of 404(c) authority.

Designation of Per-and Polyfluoroalkyl Substances as Hazardous Substances

USEPA will begin the process to purpose designating PFOA and PFOS as “hazardous substances” through one of the available statutory mechanism, including section 102 of the Comprehensive Environmental Response, Compensation, and Liability Act.  Currently, USEPA is evaluating various statutory mechanisms, such as CWA Section 307(a) and Section 311.  The Agency has not made a final decision on which mechanism is appropriate.

Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category

In 2015, USEPA issued a final rule amending the Effluent Limitations Guidelines (ELG) and Standards for the Steam Electric Power Generating Point Source Category that addressed and contained limitations and standards on the various waste streams from steam electric power plants.  In 2017, the Utility Water Group and the Small Business Administration Office of Advocacy sent petitions to USEPA requesting the Agency reconsider the Steam Electric ELG rule.  USEPA agreed to conduct a rulemaking to potentially revise the 2015 rule’s Best Available Technology Economically Achievable (BAT) effluent limitations and pretreatment standards for existing sources that applied to bottom ash transport water and flue gas desulfurization (FGD) wastewater.

USEPA views, in light of the reconsideration, it is appropriate to postpone the impending deadlines as a stopgap measure until the Agency completes the reconsideration of the 2015 rule.  In a 2017 final rule, USEPA Administrator postponed the earliest compliance dates for BAT effluent limitations and PSES for bottom ash transport water and FGD wastewater from November 1, 2018 to November 1, 2020.  USEPA expects a published notice of the proposed rulemaking of the reconsideration in March 2019.

Reports and Regulation

Public Spending on Transportation and Water Infrastructure, 1956 to 2017 – Report from the Congressional Budget Office comprising of graphs, tables, and charts that describe the public spending trends for the nation’s transportation and water infrastructure projects since 1956

Federal Support for Financing State and Local Transportation and Water Infrastructure – Written report from the Congressional Budget Office about the various federal financing mechanisms to fund the nation’s transportation and water infrastructure projects.

Congress Next Week

The House and Senate are out of session until after the November Midterm Elections.