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 Regulatory Affairs

Regulations and guidance from the U.S. EPA and other federal agencies often impact WEF members’ activities and how environmental goals are met. The Regulatory Subcommittee of WEF’s Government Affairs Committee leads WEF efforts to monitor regulations connected with clean water issues and provides input on regulatory rulemaking efforts through collaboration between WEF membership and U.S. EPA staff as well as others in the regulatory community. WEF staff and the Regulatory Subcommittee share information on regulatory updates and forecasts on pending changes through regular and timely communications with WEF membership.

Regulatory Activities | Regulatory Comments |
News Update | News Archive 

 WEF Regulatory Activities 

WEF often submits formal comments on proposed regulations. The comments are prepared by member work groups. If you would like to obtain a copy of any of these comments, please send your request to cternieden@wef.org.

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WEF Regulatory News and Comments

Webinar and Public Comment Opportunity:  Looking Forward:  Priorities for Managing Freshwater Resources in a Changing Climate

06/27/16 - 2:00 PM ET - 3:30 PM ET
Introduction:  The Federal interagency Water Resources and Climate Change Workgroup has released for public comment the draft document, Looking Forward: Priorities for Managing Freshwater Resources in a Changing Climate
The Workgroup is accepting comments through July 15, 2016; please send your comments and questions to: water_climate_change@epa.gov.
In addition, you are invited to participate in a public webinar for an overview of the document:
Audio Number: 1-866-299-3188
Participant Code: 202-564-0734#
As background, the Water Resources and Climate Change Workgroup is comprised of more than a dozen agencies that have been working together on climate change adaptation since 2009. This document updates the 2011 National Action Plan. Agency co-chairs include Council on Environmental Quality, U.S. Geological Survey, and U.S. Environmental Protection Agency, and participating agencies include Army Corps of Engineers, Centers for Disease Control and Prevention, Department of Agriculture, Department of Defense, Department of Energy, Department of the Interior, FEMA, National Aeronautics and Space Administration, and National Oceanic and Atmospheric Administration.
House Releases Regulatory Plans for 2017 
 
On June 14th, House Speaker Paul Ryan (R-WI) and other House Republican leaders revealed a new regulatory agenda for 2017.  The 57-page plan is the third part of a six-part agenda dubbed “A Better Way.” This part of the agenda was developed by the task force on Reducing Regulatory Burdens, set up in February.  A copy of the agenda can be viewed here.
 
Ryan's plan calls for closer scrutiny of environmental programs, such as the Environmental Protection Agency's Clean Power Plan and its application of the Clean Water Act, as well as an update to the National Environmental Policy Act.  Many financial, environmental and energy-related rules would be scaled back next year, such as methane emissions and hydraulic fracturing.  (Bloomberg BNA)
 
“We are calling for Washington to change the very way it writes its rules—that's why we wrote this plan,” Ryan said at a June 14th press conference outside the Department of Labor.
 
At this press conference, Ryan mentioned the EPA and U.S. Army Corps of Engineers' interpretation of the Clean Water Act and its impact on the farming industry. Ryan said Clean Water Act permits should not be required for farming and ranching activities such as construction of ponds and ditches.
 
The regulatory plan also calls for an update to the National Environmental Policy Act to “eliminate delays, unnecessary duplication, and frivolous litigation, and give worthy projects a timely green light.” 
 
 US and Canada Target Reduction in Chemicals  
 
On May 31st, U.S. EPA Administrator Gina McCarthy and Canada’s Environment and Climate Change Minister Catherine McKenna announced that Canada and the U.S. have agreed to target reductions of eight Chemicals of Mutual Concern (CMCs) to protect public health and the environment in the Great Lakes region under Annex 3 of the binational Great Lakes Water Quality Agreement. This agreement requires the two governments work together to prepare binational strategies to reduce exposure to these new CMCs.
 
The following chemicals were designated as the CMCs under the new agreement:
  • Hexabromocyclododecane (HBCD) 
  • Polybrominated Diphenyl Ethers (PBDEs) 
  • Perfluorooctanoic Acid (PFOA) 
  • Perfluorooctane Sulfonate  (PFOS) 
  • Long-Chain Perfluorocarboxylic Acids (LC-PFCAs) 
  • Mercury 
  • Polychlorinated Biphenyls (PCBs) 
  • Short-Chain Chlorinated Paraffins (SCCPs) 
 
 
 “Designating these Chemicals of Mutual Concern puts us on the road to reducing them to protect the public health and water quality of the Great Lakes region,” said EPA Administrator Gina McCarthy.
 
For more information on Chemicals of Mutual Concern or the 2012 Great Lakes Water Quality Agreement, visit www.binational.net.
 
Supreme Court Rules Clean Water Jurisdiction Call Changeable 
 
On May 31st, the United States Supreme Court ruled that developers and landowners can ask a court to review a federal finding that a wetland or waterway on their property falls under the Clean Water Act, under a unanimous ruling issued May 31 (U.S. Army Corps of Eng'rs v. Hawkes Co., Inc.)
 
Chief Justice John Roberts wrote the opinion in the 8-0 decision, as the Supreme Court held that Clean Water Act jurisdictional determinations issued by the U.S. Army Corps of Engineers, often referred to as JDs, are final agency actions subject to judicial review under the Administrative Procedure Act.
 
Minnesota peat producer Hawkes Co. challenged a 2012 corps determination that wetlands on its property can be regulated under the Clean Water Act, which would require the company to obtain a Section 404 permit prior to extracting peat from the property.
 
Roberts said he disagreed with the corps' assertion that a jurisdictional determination wasn't a final agency action. Under the Administrative Procedure Act, a final agency action is reviewable only if there are no adequate alternatives.
 
The corps had argued that “adequate alternatives” are available for challenging JDs in court, namely, a property owner can discharge without a permit or obtain a permit and then challenge it in court.
 
Roberts noted the difficulty property owners face in determining whether a particular piece of property contains federally protected waters, “but there are important consequences if it does.”
 
“The clean water act imposes substantial criminal and civil penalties for discharging any pollutant into waters covered by the Act without a permit from the corps,” Roberts said.
 
Members of Congress had mixed reactions -- Rep. Bob Gibbs (R-OH) lauded the decision as "common-sense," while Sen. John Barrasso (R-WY) felt this was an example of "regulatory overreach."  (Bloomberg BNA) 
 
DoE and UC Co-author Report on the Benefits of Integrated Resource Management for the Water-Energy Nexus 
 
The United States Department of Energy (DoE) and the University of California released a report this week on, “Capturing the Benefits of Integrated Resource Management for Water & Electric Utilities and their Partners". The report outlines a strategic vision and accompanying solutions to address key challenges in the following areas:
1.Emission Reduction: Reducing Green House Gas emissions of the combined water-energy system. 
2.Resilience: Effectively addressing water and energy system resilience (e.g. handling drought in the water sector, and handling water resource variability and availability in the energy sector).
3.Resource Efficiency: Increasing the water delivered per unit of energy and energy delivered per unit of water used.
 
These key water and energy challenge areas are major stressors in the state of California - a main focus for this report. Needs and barriers identified at a joint University of California and DoE Water-Energy Workshop held at UC Irvine in May of 2015 are highlighted and used as the framework for the report. The workshop brought together experts in the water and energy field to discuss pressing issues regarding the interactions between water and energy sustainability with particular focus on water and electric utilities and related policymaking. 
 
Please click here for more information and to see the full report.
 
For any questions please contact Brian Tarroja at bjt@apep.uci.edu, David Feldman at feldmand@uci.edu, and Diana Bauer at Diana.Bauer@hq.doe.gov 
 
WEF Submits Comments on EPA’s Draft 2017 Construction Stormwater General Permit 
 
WEF provided comments of the Draft National Pollutant Discharge Elimination System (NPDES) General Permit for Stormwater Discharges from Construction Activities. The proposed permit is a renewal of the current 5 year permit that was effective February 16, 2012 and will expire on February 16, 2017.   EPA made the draft permit available for a 45-day public comment period, which concluded on May 26, 2016.
 
The permit included a number of updates and proposals that EPA specifically requested public feedback on. These were comprised of a proposal for the allowance of group Stormwater Pollution Prevention Plans (SWPPPs), requiring authorized non-stormwater discharges (external structure washdown waters) to not contain hazardous substances (e.g. PCBs), decreasing timelines for final site stabilization from 14 to 7 days, a request for identification of potential best management practices (BMPs) to reduce the impact of dewatering activities, increased required site inspection frequencies, a proposed requirement for a specified site inspection frequency for sites with snowmelt runoff, and increased public access to Stormwater Pollution Prevention Plans (SWPPPs).
 
WEF offered comments and recommendation on these elements. Highlights of WEF’s comments include recognition of the need to make SWPPPs available to the public, but included suggestions on how to address the challenges associated with implementing; general concurrence that addressing potential toxics in source washdown waters was preferable and more cost effective versus addressing toxins once they have entered waterbodies and MS4 conveyance systems; and recommendations regarding inspection frequencies and final site stabilization timelines. 
 
WEF’s complete comments can be found here.
 
For more information regarding WEF’s comments, please contact Chris French, Director of Stormwater Programs at cfrench@wef.org.
 
EPA Proposes New Permit Rule 
 
The EPA published a proposed rule on May 18 in the Federal Register that would allow EPA regional offices to make direct decisions on National Pollutant Discharge Elimination Systems (NPDES) permits that have been delayed in their approval process by states.  Currently, if a state has delayed the approval of a new permit, the expired permit can be, and usually is, extended until the new permit has been reviewed and approved.  
 
With this proposed rule, the EPA is asserting greater oversight and jurisdiction over the states’ implementation of Clean Water Act (CWA) permitting powers.  The EPA asserts that the rule would allow the agency to invoke its CWA authority to file objections against proposed permits, forcing a state to stop extending an expired permit and craft a new replacement instead -- with EPA stepping in to issue a new permit if the state does not.  The states may be delayed from issuing a new permit for a variety of reason, including permit issuance backlogs, or efforts to resolve technical or policy issues associated with the new permit. 
 
The proposed NPDES rule would allow EPA regions to block ongoing use of a continued permit through the CWA power to object to a proposed permit. When the agency lodges an objection, a state has 90 days to file a revised permit that remedies whatever flaws EPA identified before federal permit writers may craft and issue a new permit instead.
 
Additionally, the proposed rule would require all new dischargers to submit data to regulators no later than 18 months after they begin operation -- tightening the current deadline by six months and extending it to apply to all dischargers rather than exempting Water Resource Recovery Facilities (WRRF).
 
The rule would also make explicit many of the factors permit writers are already required to consider in setting permit limits, such as weighing both acute and chronic toxicity in whole effluent toxicity tests; incorporating the CWA's anti-degradation and anti-backsliding requirements; and codifying EPA's “long-standing policy” that regulators should use concrete data to decide whether a facility's discharges have the “reasonable potential” to violate water quality standards.
 
The public comment period for the proposed rule closes on July 18, 2016.  WEF will closely review the proposed rule and prepare comments.
 
Reversal:  Water Districts Now Allowed to Set Their Own Targets in California 
 
On May 18th, California suspended its mandatory twenty-five percent reduction in urban water use, reversing an executive order issued last year by Governor Jerry Brown as a result of the state's ongoing drought.
 
Local water districts will soon be allowed to set their own savings' targets based on water supply and demand forecasts tailored to their areas.  
 
Regulators have explained that this is in response to the need to account for the fair amount of rain and snow in some areas in Northern California, which has caused residents to wonder why they must continue to limit lawn watering, toilet flushing, and car washing among other things.  
 
Under the new regulations, local agencies will set their conservation targets based on their ability to meet demand if there are three more severely dry years. Water districts will “self-certify” their level of supply and submit their data to the water board, which must ultimately approve the conservation targets that districts propose.
 
These rules have been adopted by the State Water Resources Control Board.  Of note, they do not apply to agriculture, which is covered by different regulations. (LA Times)
 
WEF Participates in White House Innovation Project 
 
On May 11th, the US Department of Energy (DOE) announced The Wastewater Infrastructure Accelerator, which will work over three years with state, regional, and local agencies that are engaging with water resource recovery facilities in their jurisdiction to accelerate a pathway toward a sustainable infrastructure of the future. This DOE initiative will build upon and leverage a substantial portfolio of work, resources and partnerships established by the U.S. Environmental Protection Agency (EPA) and various industry partners such as Water Environment Federation to add a new set of partners focused on developing actions and solutions in the energy-water nexus. DOE recognizes EPA’s Office of Wastewater Management (OWM) leadership and will coordinate with EPA and this growing coalition on approaches to assist Accelerator partners chart pathways to sustainability.
 
The Accelerator founding partners, representing seven states and 25 water resource recovery facilities, held a kickoff meeting at the White House on May 9, at which WEF provided Energy Roadmap Primer with ISO 50001 mapping as resources help Accelerator participants on their journey to energy sustainability.  Dr. Barry Liner, WEF’s Water Science & Engineering Center director stated, “WEF fully supports the goals of the Department of Energy’s Better Buildings Initiative and the Wastewater Infrastructure Accelerator, especially the consideration of resource recovery in addition to energy conservation.” 
 
The Accelerator aims to catalyze the adoption of innovative and best-practice approaches in data management, technologies, and financing for infrastructure improvement. Partners will seek to improve the energy efficiency of their participating water resource recovery facilities by at least 30 percent and integrate at least one resource recovery measure.
 
The Better Buildings Wastewater Infrastructure Accelerator supports the President’s Climate Action Plan with a goal to increase the adoption of energy efficiency improvement projects across the country. The focus of the wastewater infrastructure collaboration is to boost the adoption of innovative and best-practice approaches in data management, technologies and financing. Participants will design infrastructure improvement plans that seek to improve the energy efficiency of their facilities by at least 30 percent. 
 
“Thanks to a dedicated drive to actively create and share the best energy efficiency solutions, Better Buildings partners have dramatically cut their energy waste and saved more than a billion dollars since the Better Buildings initiative was launched five years ago,” said Energy Secretary Ernest Moniz. “As the initiative continues to grow, we are moving the nation forward by reducing energy costs and carbon emissions through energy efficiency.”
 
DC Water Introduces New Soil Amendment 
 
On May 12th, DC Water introduced Bloom (TM), which is a new soil amendment product made from Class A biosolids.  This weed-free, drought resistant, and locally produced product is now available in the DC area.  
 
The program will begin with a pilot program for distribution with local soil blenders and landscapers and is part of DC Water's efforts to recover resources from nutrient-rich wastewater.  The pilot program is designed to provide local partners with biosolids for blending or landscaping in exchange for information on how they optimize their production with these biosolids.
 
To read more from DC Water's press release, click here.
 
Infrastructure Week 2016 Begins May 16th 
 
Infrastructure Week 2016 runs across the nation from May 16th through May 23rd.  This national, annual week of events helps to elevate infrastructure as a critical issue impacting all Americans.  
 
You can participate in multiple ways from planning an event to writing to Congress, writing an op-ed, hosting a field trip, and much, much more.  This is also a great opportunity to engage the next generation.  For more information on ways to participate, click here.  To download an affiliate toolkit, click here.
 
Also, May 18th will be an Infrastructure Advocacy Day.  If you will be in Washington, DC, that day, plan to attend  Click here to register.
 
The theme for 2016 is "Infrastructure Matters."  Tweet why #InfrastrucureMatters to you!

 
Suit Filed Against EPA over Fracking Wastewater Rules 
 
On May 4th, environmental groups, including the Environmental Integrity Project and the Natural Resources Defense Council (NRDC), filed a lawsuit  in the U.S. District Court of the District of Columbia seeking an order compelling the EPA to adopt measures regulating the disposal of wastewater from oil and gas exploration. They say the need for them has become more acute with the prevalence of fracking. Specifically, the agency is being accused of delaying to act even as frackers’ disposal of this wastewater triggers earthquakes.
 
The lawsuit says the absence of disposal rules poses a threat to human and environmental health.
 
Wastewater from fracking contains potentially harmful pollutants, including naturally occurring radioactive materials, that can be dangerous if they're released into the environment or if people are exposed to them, according to a 2012 NRDC study. Frackers rid themselves of wastewater by injecting it into the underground wells.
 
A U.S. Geological Survey report issued earlier this year said quake rates have “increased markedly in multiple areas of the central and eastern United States, especially since 2010.” Studies have linked that seismic activity to the injection of wastewater into deep disposal wells, the agency said, adding probable damage from such events this year is “particularly high” in certain states.
 
Melissa Harrison, a spokeswoman for the EPA, declined to comment on the allegations.  She did, however, say the agency is limited by several regulatory and statutory exemptions.
 
“Where EPA's exemptions exist, states may have authority to regulate unconventional oil and gas extraction activities under their own state laws,” she said. “The EPA continues to work with states and other stakeholders to understand and address potential concerns with hydraulic fracturing to ensure that natural gas and oil production will proceed in a safe and responsible manner.”
 
The suit naming EPA Administrator Gina McCarthy comes as regulators are fighting a separate federal case in Casper, Wyo., where four states and two petroleum industry groups won a preliminary order barring enforcement of Bureau of Land Management fracking rules for federal lands. (Bloomberg BNA)
 
USGS Releases new factsheet on coal-tar based pavement concerns for human health and aquatic life 
 
 This week the USGS released a new factsheet on coal-tar based pavement.  Coal-tar-based pavement sealant is a potent source of polycyclic aromatic hydrocarbons (PAHs), as documented by the USGS and other researchers.
 
 Coal-tar-based sealcoat products typically are 20 to 35% coal tar or coal-tar pitch—these materials are known human carcinogens that contain high concentrations of PAHs and related chemicals. Coal-tar-based pavement sealcoat typically contains 35,000 to 200,000 mg/kg (parts per million, or ppm) PAHs, about 100 times more PAHs than in used motor oil and about 1,000 times more PAHs than in sealcoat products with an asphalt base.
 
 Coal-tar sealcoat is abraded to a fine dust by car tires and snow plows, requiring reapplication every 2–5 years. The mobile high-PAH dust is blown, washed, or tracked into nearby soil, stormwater ponds, streams, lakes, and house dust. Many of the lighter-weight chemicals in coal-tar sealcoat volatilize (evaporate) into the air, primarily during the 2 weeks following application, but continuing for years after application.
 
 To view the factsheet and learn more about coal – tar click here.

Countdown to National PrepareAthon Day!

Water Utilities Raising Action to Build Resilience - April 30, 2016

Raise awareness about the importance of water services in your community with the Public Awareness Kit.
Educating your key stakeholders — and motivating them to take specific actions — is key to meeting your water system’s goals.
 

Use EPA’s Water Utility Public Awareness Kit to inform customers and the community about threats to their water system. 

By combining the most effective communications methods — print, web, and TV — you will reinforce the message and drive home three calls to action:
 

  • Be aware 
  • Be prepared 
  • Show you care 
So, get the word out, starting today!  Click here!

 

Sixth Circuit Court Will Not Rehear Case on WOTUS  

On April 21, the full Sixth Circuit court denied a series of petitions requesting an en banc (otherwise known as a full court) rehearing of a February 22, 2016 ruling by a three-judge panel.  This decision keeps the Waters of the United States (WOTUS) case in the appellate court level. The participating states and industry groups were seeking to have this case decided at the federal district level.  In a one-page release, the court stated that, “No judge has requested a vote on the suggestion for rehearing en banc…therefore, the petitions are denied.”  

At question was the appropriate venue to determine the limits of Clean Water Act jurisdiction.  The February 22 ruling by the three-judge panel held that the appeals court, as opposed to the district courts, is the level at which the WOTUS case should be decided.  

To read the denial, click here.

Senate Amendment to Block Water Rule Fails 

Also on April 21, a Senate amendment that would have blocked the Clean Water Rule fell four votes short of passage, but the measure's sponsor, Sen. John Hoeven (R-ND) said he wouldn't give up on using the appropriations process to block the regulation. 

The amendment to the Senate Energy and Water Spending bill would have blocked the Environmental Protection Agency and Army Corps of Engineers from moving forward with the waters of the U.S. (WOTUS) regulation.  It also would have blocked the EPA's Interpretive Rule, which narrowed a Clean Water Act agriculture exemption. 

The Clean Water Rule is opposed by much of the business community, including oil and gas companies, which say the regulation would expand the scope of the Clean Water Act and hamstring development, but similar efforts to block the rule have failed to garner enough votes for passage. 

“While I am disappointed that the vote failed, I will continue my work to stop this burdensome regulation through the appropriations process,” Hoeven said in a statement. 

The Senate Energy and Water Development and Related Agencies Appropriations Bill is expected to pass in the full Senate early next week.  (Bloomberg BNA) 

Report to Congress:  CSOs in the Great Lakes Basin 

On April 19, the EPA sent Congress the report “Combined Sewer Overflows into the Great Lakes Basin.”  EPA prepared this report in response to the Consolidated and Further Appropriations Act of 2015, which states:  CSOs are a major contributor to water quality issues in the Lake Michigan Basin and it is noted that many communities have made strides to update wastewater infrastructure to mitigate the impact of CSOs.  

This report presents EPA’s most recent assessment of the implementation status of long-term combined sewer overflow (CSO), control plans (LTCPs) in the Great Lakes Basin, as well as information on the occurrence and volume of CSO discharges in the basin during 2014. 

The states reported the following for CSO events in 2014: 

 

  • 1,482 events where CSOs discharged untreated sewage into the Great Lakes Basin. 
  • An additional 187 events where CSOs discharged wastewater treated with a minimum of primary treatment (or its equivalent) and disinfection. 

 

The states reported the following for CSO volume in 2014: 

 

  • CSOs discharged 22 billion gallons of untreated sewage into the Great Lakes Basin. 
  • CSOs discharged 26 billion gallons of wastewater treated with a minimum of primary treatment (or its equivalent) and disinfection. 
  • The Lake Erie Basin received 16 billion gallons of untreated sewage and 25 billion gallons of treated wastewater from CSOs. 

 

To read the report, click here.  For more information about the study, click here. 

Compendium of "Drinking Water and Wastewater Utility Customer Assistance Programs" Now Posted  

The Water Infrastructure and Resiliency Finance Center has posted the compendium of "Drinking Water and Wastewater Utility Customer Assistance Programs" on their website highlighting the work the center does to provide financial technical assistance to communities.

They are also planning a webinar to feature the different types of programs highlighted.  A flyer with more information will be coming soon. 

 WEF Provides Comments on EPA Proposed Phase II Municipal Separate Storm Sewer System (MS4) Permit Remand Rule 
 
WEF provided public comments on EPA’s proposed Phase II Municipal Separate Storm Sewer System (MS4) permit remand rule, published in the Federal Register on January 6, 2016. Prior to the register publication, EPA also made pre-publication documents available for public review on December 17, 2015. A formal 75 day public comment period concluded March 21, 2016, therefore providing the public with a total of 94 days of review. In addition, WEF produced a webcast regarding the remand rule on January 19, 2016. View the webcast recording through GoToWebinar. An article was also published on the remand rule in WEF’s Stormwater Report on December 18, 2015.
 
WEF’s comments focused on responding to questions posed by EPA with a focus on providing maximum flexibility to the MS4 Phase II regulated sector. EPA requested comments regarding three potential options for how the MS4 Phase II program might be run. Option 1 focused on a Traditional Permit Approach, Option 2 was a Procedural Approach, and Option 3 – known as the State Choice (or Hybrid) Approach. WEF recommended EPA adopt Option 3, which appears to align with the current diversity approaches utilized by the states. If adopted, Option 3 would provide authorization to the permitting authorities (states, regional boards, etc.) to choose the program administrative approach that best fits their individual needs. 
 
The full scope of WEF’s comments are available for review. WEF will continue to work with EPA, our members, and partners as the remand rule continues to progress over the upcoming year. EPA is obligated to issue a final MS4 Phase II rule by November 17, 2016 under the terms of last year’s legal settlement. 
 
For additional information regarding the remand rule and WEF’s comments, please contact Chris French at 703-684-2423 or cfrench@wef.org

LIFT Odor Control Workshop 

WEF and WERF are sponsoring an upcoming event that may interest you: LIFT Collaborative Workshop on Odor Control in Collection Systems and WRP Head Works. The event will take place at the WEF Odors and Air Pollutants 2016 event in Milwaukee, WI on March 24-25th. Dr. Zhiguo Yuan from University of Queensland will be presenting at the event. If you are interested in attending, please e-mail Fidan Karimova at fkarimova@werf.org or contact her at 571.384.2096 to reserve your spot. 

Supreme Court Denies Chesapeake Bay TMDL Appeal 

The Supreme Court of the United States (SCOTUS) announced today its denial to hear the American Farm Bureau and allies appeal regarding the Chesapeake Bay Total Maximum Daily Load (TMDL). The denial of American Farm Bureau Federation (AFBF), et al. v. EPA, et al. by the high court affirms the ruling of the United States District Court for the Middle District of Pennsylvania and subsequent unanimous ruling of the 3rd U.S. Circuit Court of Appeals. 

The Chesapeake Bay TMDL for sediment, nitrogen, and phosphorus - otherwise known as the Chesapeake Bay Clean Water Blueprint - was approved December 29, 2010. The Chesapeake Bay TMDL established pollution limits for the Bay and its tributaries. The TMDL marked a change in the historical bay-wide restoration effort in that it moved away from a largely voluntary restoration effort and includes greater accountability mechanisms tied to meeting pollution reduction goals. 

Shortly after the TMDL was approved, the American Farm Bureau and the Pennsylvania Farm Bureau filed their legal appeal. They were joined by the National Association of Home Builders, the National Chicken Council, the National Corn Growers Association, the National Pork Producers Council, the National Turkey Federation, The Fertilizer Institute, and the U.S. Poultry & Egg Association. In response, a number of advocacy groups and organizations representing public utilities joined EPA in supporting the TMDL.

District Court Judge Silvia Rambo issued a 99 page ruling on September 13, 2013 supporting the Chesapeake Bay TMDL, stating "…EPA’s role is critical to coordinating the Bay Jurisdictions’ efforts to ensure pollution reduction. In short, the court concludes that the framework established by the Bay Partnership in developing the Bay TMDL is consistent…” with the Clean Water Act and Administrative Procedure Act. The subsequent 3rd U.S. Circuit Court of Appeals unanimous ruling also rejected the challenges made against the TMDL.

The unsigned order issued by the high court today denies the petition for certiorari without comment. The denial concludes an ongoing legal challenge that has been ongoing for over five years.

For more information, please contact Chris French, WEF Director of Stormwater Programs.

Federal Appeals Court to Hear Legal Challenges to WOTUS 

On Monday, February 22, 2016, a three-judge panel of the U.S. Court of Appeals for the 6th Circuit agreed to hear challenges to the “waters of the United States” (WOTUS) rule.  

In their Murray Energy Corp. vs. EPA, et al. rule, the 6th Circuit rejected arguments that proper jurisdiction to review challenges to the WOTUS rule lies in federal district courts. Instead, two of the three judges on the panel concluded, applicable 6th Circuit precedent provided the 6th Circuit jurisdiction to hear the consolidated challenges to the WOTUS rule. 

This regulation, issued by the Environmental Protection Agency and the Army Corps of Engineers, seeks to clarify and expand the agencies’ regulatory jurisdiction under the Clean Water Act. The rule is a response to two Supreme Court decisions holding that the EPA and Army Corps had asserted unduly broad regulatory authority; it is now subject to more than 20 separate challenges filed by numerous states and interest groups.

According to PoliticoPRO, this decision is a win for the Justice Department, which preferred to move directly to the appellate court because the accelerated process could allow Obama administration lawyers to lay important groundwork for an expected Supreme Court appeal.

 WEFCurrent Understanding of Stormwater Rulemaking Memo_110812 

EPA Officials Discuss Revised Integrated Planning Framework during WEF June 14, 2012 Webcast

On June 14, Deborah Nagle, Director of EPA Water Permits Division, and Mark Pollins, Director of EPA Water Enforcement Division, participated in a WEF webcast on EPA’s just-released revised Integrated Planning Framework.  Other participants in the WEF webcast included Alexandra Dunn, Executive Director of the Association of Clean Water Administrators, who presented State perspectives, Gary A. Sheely, Director of Utilities, Lima, Ohio, who discussed his municipality’s approach to integrated planning and Brandon Vatter, Hatch Mott MacDonald, who presented an integrated water quality affordability strategy.

Ms. Nagle and Mr. Pollins emphasized that EPA’s integrated approach would allow States and municipalities, working with EPA, to use existing Clean Water Act regulatory and policy flexibilities to best meet clean water requirements within their financial capability.  The revised framework should better allow municipalities to sequence wastewater and stormwater projects to address highest priority projects first while advancing innovative solutions, such as green infrastructure.  Responding to the many comments received on the draft framework during public workshops last February, EPA revised the framework to: include a new plan element on adaptive management approaches; place more emphasis on public outreach; better address prioritization; provide more detail on cost/affordability; and, explain the balance between permitting and enforcement.  

During the Q/A session, Ms. Nagle, Mr. Pollins and Ms. Dunn had a spirited and informative discussion addressing certainty in the procees, how EPA and States could best work together, roles of permits and enforcement, TMDLs and source water protection, among other topics.  Mr. Pollins “volunteered” WEF to host a follow-up webcast later this summer to explore some specific integrated plans as they are developed; WEF accepted his offer. For more information, view the audio recording of the webcast and the Power Point slides

 WEF Comments on EPA Draft National Water Program Strategy: Response to Climate Change 

On April 2, 2012, EPA released their draft National Water Program 2012 Strategy: Response to Climate Change for a 45-day public comment period.  WEF submitted May 15 comments on EPA’s draft, commending EPA for developing such a comprehensive strategy to address climate change in the context of our nation’s clean water programs.  WEF noted that it was pleased to be able to directly participate in and contribute to the Climate Ready Water Utilities (CRWU) workgroup formed by EPA among relevant stakeholders to look at the potential impacts of climate change on water, wastewater and stormwater infrastructure and to develop approaches to respond to these impacts. The Infrastructure element of the 2012 climate change strategy reflects the excellent work conducted by the CRWU workgroup which WEF fully supports.  WEF also indicated that EPA’s strategy was consistent with WEF’s 2010 position statement on “Protecting Water Resources and Infrastructure from the Impacts of Climate Change.” 

 WEF Comments on EPA’s Integrated Planning Approach Framework 

EPA has been facing mounting municipal and utility concerns over local costs to meet ever-increasing Clean Water Act obligations for municipal wastewater treatment, wet-weather overflows, stormwater, in addition to replacing/upgrading their aging water infrastructure.  On October 27, 2011, EPA Assistant Administrators Nancy Stoner [Water] and Cynthia Giles [Enforcement] signed a memo “Achieving Water Quality Through Municipal Stormwater and Wastewater Plans” signaling EPA’s commitment to work with States and locals to use integrated planning approaches to better meet water quality requirements while considering local needs and priorities.

In January 2012, EPA issued a draft “Integrated Planning Approach Framework” to provide further guidance for EPA, states and local governments in developing and implementing effective integrated plans.  EPA then held a series of 5 facilitated workshops around the country in January and February 2012 to solicit stakeholder feedback on their proposed framework.  WEF workshop participants indicated WEF’s general support for this approach while recommending some improvements, as indicated in these WEF comments for the record.  In particular, WEF commended EPA for undertaking this effort and indicated our readiness to help EPA make this happen.  It is now anticipated that EPA will release a revised version of their framework around mid-May and then proceed to start implementation, working with EPA Regions, States, and local governments and utilities.

 EPA Postpones Stormwater Rulemaking The U.S. Environmental Protection Agency will seek a 2-month extension for the proposed national post-construction stormwater rule. The original Sept. 30 deadline will be extended until Dec. 2; however, the final rule is still planned for release in late November 2012. As such, once the proposed rule is released, the public comment period will be only 60 days, with comments likely to be due in early February 2012. The Water Environment Federation (WEF; Alexandria, Va.) will be developing comments. Those interested in participating should contact Seth Brown at sbrown@wef.org.

WEF Prepares for Proposed Stormwater Rule and Potential Impacts by Congressional Riders

The Water Environment Federation (WEF; Alexandria, Va.) met with the U.S. Environmental Protection Agency (EPA) Stormwater Team in July to discuss the status of the proposed stormwater rule. WEF understands that the proposed rule is expected to include proposed performance standards for post-construction discharges from new and redevelopment projects, revisions to municipal separate storm sewer system boundaries and extensions of the permitting program to currently unregulated dischargers, retrofit programs for targeted urban areas, a transportation-specific permit program, and inclusion of combined sewers systems in stormwater regulations. Read more >> 

WEF Submits Comment Letter on Construction General Permit

EPA has proposed an update to the 2008 Construction General Permit (CGP) and received stakeholder comments through July 11.  The CGP outlines required controls and processes for the protection of construction sites to minimize soil erosion and the delivery of sediment off site to downstream areas and waters.  The intent of the update is to provide clarification on a number of technical items as well as address new technologies and techniques used in the temporary stormwater management field.  The most significant changes included in this update are a numeric effluent limit for turbidity for large construction sites and a standard 2-year design storm for all measures.  While this regulation only impacts those states and entities that are directly regulated by EPA, these changes signal likely future changes in state programs. The WEF Government Affairs Stormwater Workgroup led the development of comments through cooperation with the Stormwater Coordinating Council.  

WEF Submits Comments on Waters of the U.S. Draft Guidance 

WEF submitted comments on the Draft Guidance on Identifying Waters Protected by the Clean Water Act on July 29, 2011.  This guidance was jointly released by the EPA and the U.S. Army Corps of Engineers on May 2, 2011 with the intent to clarify jurisdictional determination.  The recent Rapanos and SWANCC Supreme Court rulings on Waters of the U.S. created confusion on this topic, especially in determining the meaning of “significant nexus” associated with the Justice Kennedy opinion.  WEF supports the intent of the guidance to provide clarity on the matter while understanding that EPA has committed to a formal Rulemaking on this matter.  WEF comments focused on man-made structures such as ditches, swales, reservoirs, and ponds, to ensure that the existing exemptions on these elements would be protected in the guidance. 

WEF Submits Comments on EPA’s November 12, 2010 Memorandum for Establishing TMDL Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Based on Those WLAs

Comments were developed in response to the 2010 memorandum which updates the 2002 memo that EPA issued on establishing TMDL waste-load allocations (WLAs) for stormwater sources and NPDES permit requirements based on those WLAs. WEF made comments on the Expansion of Numeric Limits as Water Quality Based Effluent Limits. Click here to see EPA’s 2010 memo along with stakeholder concerns regarding the memo. Click here to see comments submitted by WEF.

WEF Provides Input on Barriers to Green Infrastructure to EPA 

EPA requested WEF to provide input on barriers to the impelmentation of green infrastructure.  In response to this request, WEF compiled comments from the Government Affairs Committee Stormwater and Wet Weather Work Groups as well as the Stormwater Coordinating Council.  These comments reflected not only identified barriers, but also corresponding solutions, to aid EPA in the development of actions to overcome identified barriers.  Click here to see the letter from Jeff Eger along with the listing of barriers and solutions.  Click here to see EPA's green infrastructure webpage. 

WEF Submits Comments on EPA Proposed MACT Standards Rulemaking for Sewage Sludge Incineration (Updated December 3, 2010)

These comments were developed by an expert Residuals and Biosolids Work Group composed of WEF members from a variety of disciplines and working in all aspects of wastewater and solids management. Read more >> 

WEF Submits Comments on EPA Strategy for Achieving Clean Water (Updated September 24, 2010)

The Strategy is a public forum effort by EPA to articulate areas of regulatory focus needed to, in the words of Administrator Jackson, “see a huge leap forward in water quality as we saw in the 1970’s. Read more >> 

WEF Submits Comments on EPA Definition of Solid Waste Proposed Rulemaking (Updated August 6, 2010)

Comments were developed by a work group comprised of volunteers from WEF’s Residuals and Biosolids Committee and leadership of the Air Quality & Odor Control and Government Affairs Committees.Read more >> 

WEF Submits Comments on EPA SSO Rulemaking (July 30, 2010)

WEF’s Government Affairs Committee, coordinating with other WEF Committees, submitted  comments to EPA, building on and consistent with WEF’s April 30, 2010, Position Statement:“Management of Wet Weather Flows by Municipal Utilities.” Read more>> 

 

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 Regulatory News Update

 

Draft Stainless Steel Nuts and Bolts Waiver Extension

This week, the US EPA Office of Ground and Drinking Water posted a draft extension of the national waiver for stainless steel nuts and bolts (in pipe restraint type products). The extension will be open for a 15-day public comment period.

The memorandum begins, “The EPA is hereby granting a one year extension of the Short-Term National Product Waiver for Stainless Steel Nuts and Bolts used in Pipe Couplings, Restraints, Joints, Flanges and Saddles for State Revolving Fund Projects, pursuant to the “American Iron and Steel” requirements of the Clean Water Act Section 608 and P.L. 114-113, the “Consolidated Appropriations Act, 2016.” The original waiver was signed on February 18, 2015 and with the one year extension, the waiver will now expire February 18, 2017. This waiver permits the use of non-domestically produced stainless steel nuts and bolts in bolting-type pipe couplings, restraints, joints, and repair saddles in iron and steel products for projects funded by a Clean Water or Drinking Water State Revolving Fund that may otherwise be prohibited absent this waiver,” and a full copy can be read here.

For more information, please visit this webpage.

 

Congress Takes More Time to Finish FY16 Budget (December 2015) 

The House and Senate passed a short term continuing resolution (CR) this week to give themselves until next Wednesday, Dec. 16, to complete an omnibus appropriations package to fund the federal government for the remainder of fiscal year 2016.  An overall budget agreement was reached in October 2015 that set top-line funding levels for the next two fiscal years, which included a slight increase in the FY16 funding level above the amount prescribed under sequestration.  Congress was supposed to have the final omnibus package complete by Dec. 11, but negotiations have stalled a number of policy provisions and program funding amounts, further delaying the final package.  Congress will work over the weekend to try to reach an agreement before the current short term CR expires.  

House Passes Ban on Microbeads (December 2015)  

 

By voice vote this week the House passed a ban on the manufacturing, sale, and distribution of plastic microbeads that are added to personal care products.  The Microbead Free Waters Act of 2015 (H.R. 1321) would ban the use of these plastics in over the counter drugs as well as rinse off cosmetics and would prohibit the use of alternatives beginning January 1, 2018. The legislation defines microbeads as "any solid plastic particle that is less than five millimeters in size and is intended to be used to exfoliate or cleanse the human body or any part thereof," and completely forbids the production of toothpaste to include microbeads. The bill has been sent to the Senate for consideration.

 

Federal Strategy for Restoring Gulf of Mexico Released (Updated Dec 9, 2011) 

The Gulf Coast Ecosystem Restoration Task Force, chaired by EPA Administrator Lisa Jackson, has released its final strategy for long term ecosystem restoration for the Gulf Coast. Read more >> 

EPA To Provide Nearly $2 Million to Revitalize U.S. Urban Waters (Updated Dec 9, 2011) 

EPA announced on December 7 that it will provide up to $1.8 million for projects across the country to protect Americans’ health and help restore urban waters by improving water quality and supporting community revitalization. Read more >> 

EPA to Hold Regional Public Meetings on Framework for Integrated Municipal Stormwater and Wastewater Plans in New Year (Updated Dec 9, 2011) 

At an EPA meeting on December 8 with water stakeholders, including Jeff Eger and WEF staff, EPA Water Permits Director Deborah Nagle indicated that EPA intends to hold public meetings early in the new year in five regional offices to present and discuss their framework for integrated municipal stormwater and wastewater plansRead more >> 

EPA Study Finds Coal-tar Sealants Creates Polycyclic Aromatic Hydrocarbons Runoff (Updated Dec 2, 2011) 

EPA issued a September 2011 report - Assessment of Water Quality of Runoff from Sealed Asphalt Surfaces- that found coal-tar sealants create polycyclic aromatic hydrocarbons (PAHs) runoff in amounts up to 1,000 times greater than the alternative asphalt-emulsion sealant, which is used mostly in western states.  Read more >> 

WEF Encourages Innovative Beneficial Uses of Biosolids; Approves Updated Position Statement (Updated Dec 2, 2011) 

On December 2, the WEF Board of Trustees adopted an updated position statement supporting a comprehensive approach to wastewater treatment and solids management that ensures the recycling and recovery of all valuable resources including water, nutrients, organic matter and energy. Read more >> 

EPA Sends OMB Revised Effluent Guidelines for Stormwater Runoff from Construction Sites (Updated Nov 18, 2011) 

On November 16, EPA sent to the Office of Management and Budget (OMB) a revised construction and development effluent limitations guidelines (ELG) that will set numeric turbidity limits for stormwater runoff based on new data on treatment performance. Read more >> 

EPA Seeks Nominations for New Science Advisory Board Committee (Updated Nov 18, 2011) 

EPA announced in the November 18 Federal Register that it is requesting public nominations of scientific experts for appointment to EPA’s Science Advisory Board (SAB) Chemical Assessment Advisory Committee.  Read more >> 

Environmental Groups Challenging District of Columbia MS4 Permit (Updated Nov 11, 2011) 

The Natural Resources Defense Council, along with Earthjustice, Potomac Riverkeeper, Friends of the Earth and Anacostia Riverkeeper, filed a petition on November 4 with EPA's Environmental Appeals Board (EAB) requesting that they review the discharge permit for the District of Columbia's municipal separate storm sewer system (MS4). Read more >> 

EPA Outlines Preliminary Evaluation of Florida DEP Numeric Criteria for State Waterways (Updated Nov 4, 2011) 

EPA sent a letter on November 2 to Hershel Vinyard, Secretary of the Florida Department of Environmental Protection (FDEP), outlining the Agency’s preliminary evaluation of FDEP’s proposed rule establishing numeric criteria for Florida waters.  Read more >> 

Ken Kopocis will be Senior Advisor to Nancy Stoner, EPA (Updated Nov 4, 2011) 

Nancy Stoner, Acting Assistant Administrator for EPA's Office of Water, has announced that the President's nominee for the Assistant Administrator in the Office of Water, Ken Kopocis, will be joining EPA on November 2 as a Senior Advisor while he awaits final Senate Confirmation.  Read more >> 

New EPA Publication on Using Biological Assessment to Support Water Quality (Updated Nov 4, 2011) 

Management EPA has published A Primer on Using Biological Assessment to Support Water Quality Management.   Read more >> 

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 Regulatory News Archives

Please click on the below link to read more Regulatory News.

More Regulatory Archives >>

For more information, contact: Claudio Ternieden, Director of Government Affairs, 703-684-2400, x. 2416 or cternieden@wef.org.

 

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