Federal District Judge rules against WOTUS Applicability Date Rule
Last week, on August 16th, Judge David C. Norton of the US District Court for the District of South Carolina struck down the EPA’s WOTUS “applicability date rule” as arbitrary and capricious in South Carolina Coastal Conservation League et al., v. Andrew Wheeler, et al.
Judge Norton sided with environmentalists, ruling that the EPA violated Administrative Procedure Act requirements concerning adequate notice-and-comment for the applicability date rule. The opinion explained that the EPA could not narrow the scope of comments solicited (i.e. ask only for comments on applicability date rule and not the substantive 2015 rule itself), nor limit the comment period’s duration to only 21 days, because the rule in effect is not merely a procedural rule but actually, practically causing a change in definitions of WOTUS throughout the country. For a rule of that import, Judge Norton explained, precedent dictated that neither a 21-day comment period nor a very topically-limited comment solicitation was appropriate.
The effect of this on states is as follows: the 2015 rule is now reinstated in 26 states. In the remaining 24 states (GA, AL, FL, IN, KS, NC, SC, UT, WV, WI, KY, SD, MO, AL, ND, NM, ID, AZ, NE, MT, AK, NV, CO, WY) which have stays in place from prior court decisions, implementation of the 2015 rule is still halted.
ACWA will continue to monitor WOTUS developments and keep you informed as developments occur. If you have questions please contact Julian Gonzalez or Julia Anastasio.
Coal Combustion Residuals Rule Decision
On August 21, 2018 the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion remanding several parts of the Coal Combustion Residuals (CCR) Disposal Rule, published April 17, 2015. This rule defined how coal-fired energy utilities could dispose of coal ash, a byproduct of burning coal to generate electricity. The Final Rule sets minimum criteria for the disposal of Coal Residuals in landfills and surface impoundments. Issues raised in the litigation included the location restrictions on landfills and surface impoundments, requirements pertaining to lining, structural integrity, and groundwater monitoring, and criteria for recycling Coal Residuals for beneficial uses, such as substituting for cement in road construction, in lieu of keeping it in disposal units. “The Final Rule also sets compliance deadlines, procedures for closing non-complying landfills and surface impoundments, and requirements that operators of these disposal sites make records of their compliance with the Final Rule publicly available.” Per environmental groups requests, the Court vacated the parts of the rule that allowed the continued operation of unlined impoundments, the treatment of clay lined impoundments as though they were lined, and the exemption of legacy ponds. The Court denied most of the industry petitioners’ claims but did remand part of the rule for further analysis of “coal residuals pile size” and the section on residuals destined for “beneficial uses.” A copy of the decision can be found here.
ECOS, ACWA and ASWM Express Concerns Over Limits on 401 Authority
ACWA joined with ECOS and ASWM in communicating our concerns on recent Congressional efforts to preserve states’ ability to protect water quality under Section 401 of the Clean Water Act. The letter was sent in response to several Congressional efforts aimed at limiting state 401 authority including the introduction of S. 3303, The Water Quality Certification Improvement Act of 2018. S. 3033 would amend the CWA to limit state authority to evaluate potential project impacts to just water quality impacts. This change would diminish states’ authority to manage water quality within their boundaries under Section 401 of the federal Clean Water Act (CWA). To read the letter click here: ECOS ACWA AWSM 401 Letter.
EPA Announces PFAS Community Engagement Session in Leavenworth, Kansas
The EPA is continuing their cross country PFAS engagement session and just announced a stop in Leavenworth, Kansas on Wednesday September 5th. The engagement session will consist of an informative working session and will be followed by a listening session in the evening. For more information, please see the EPA announcement here. For more information on past engagement sessions, please see the EPA PFAS Community Engagement website.
WIFIA Program Receives 62 Letters of Interest
The WIFIA program has received 62 letters of interest requesting $9.1 million in WIFIA credit assistance. This is the second WIFIA selection round, and the program received submittals from 56 borrowers, including 9 repeat prospective borrowers from the FY2017 project selection round. The projects are in 26 different states and territories, including Guam and the District of Columbia, covering all EPA Regions. The program received requests to finance a variety of different types of projects including wastewater, drinking water, water recycling, desalination, stormwater, and a combination of wastewater, drinking water, and stormwater projects.
This year’s WIFIA Notice of Funding Availability (NOFA) highlighted the importance of protecting public health including reducing exposure to lead and other contaminants in drinking water systems and updating the nation’s aging infrastructure. Many projects received fall under these priorities outlined in the NOFA. WIFIA plans to announce selected projects this fall.To learn more about these letters of interest, visit WIFIA’s website or read our Letter of Interest factsheet. More information about the WIFIA program and the application process is available at https://www.epa.gov/wifia.
ACWA 2018-2019 Board of Directors & Leadership Results
Pursuant to the ACWA Constitution, ACWA conducts an election to select the association’s board of directors representatives and leadership. This year the odd numbered regions of the Board of Directors were up for election, along with the President, Vice President and Treasurer. The 2018-2019 ACWA Leadership and Board of Directors are:
- President Allison Woodall (TX)
- Vice President Melanie Davenport (VA)
- Treasurer Andrew Gavin (SRBC)
- Past President Jennifer Wigal (OR)
- Secretary Peter Goodmann (KY)
- Region 1 Alicia Good (RI)
- Region 2 Koon Tang (NY)
- Region 3 Lee Currey (MD)
- Region 4 Peter Goodmann (KY)
- Region 5 Tiffani Kavalec (OH)
- Region 6 Caleb Osbourne (AR)
- Region 7 Jaime Gaggero (KS)
- Region 8 Karl Rockeman (ND)
- Region 9 Krista Osterberg (AZ)
- Region 10 Heather Bartlett (WA)
- Interstates Susan Sullivan (NEIWPCC)
Thank you to those of you who voted in this year’s elections and for your continued support and dedication to ACWA.
ACWA 2018 Annual Meeting – Portland, Oregon
Last week ACWA hosted its 57th Annual Meeting in Portland, Oregon. The theme for this year’s meeting was “[T]he Confluence Of State Expertise And Partnership.”At this meeting states and EPA co-regulators discussed a number important national clean water program topics including: the definition for “waters of the U.S.”; how states use § 401 certifications to protect state waters; infrastructure programs, WIFIA and the CWSRF; the history and use of produced water; updates on the § 404 program and assumable waters; increased demand from the stormwater program for water quality trading solutions; cooperative federalism in the Office of Water; improving coordination between water programs and hazardous waste programs in regards to contaminated sediment; integrating hazard mitigation planning and water quality management; approaches for identifying and prioritizing contaminants of emerging concern; and EPA’s Lean Management System (ELMS) and its impact on planning, priorities, and Core Measures for the water program. Recipients of ACWA awards at this meeting included Mary Anne Nelson (ID) and Traci Iott (CT) receiving Emerging Leader Awards, Andrew Gavin (SRBC) receiving the President’s Service Award, Rebecca Flood (MN) receiving the Exceptional Service Award, Alan Roberson (ASDWA) receiving the Environmental Partnership Award, and Pete LaFlamme (VT) and Shellie Chard (OK) receiving Environmental Statesman Awards.
EPA Numeric Nutrient Criteria Technical Workshop – Dallas
The final EPA Numeric Nutrient Criteria Technical Workshop will take place from September 11-13, 2018 at the Crowne Plaza Dallas Downtown, 1015 Elm Street, Dallas, Texas. This is the final workshop in a series of three. The workshop will focus on scientific advances relevant to numeric nutrient criteria development, examples of novel approaches that have been implemented to protect waters from nutrient pollution impairment, and topics of importance to states and tribes. The workshops will be co-led by staff from EPA’s National Nutrient Criteria Program and the Regional Water Quality Standards Programs, with contributions from regional, state, and tribal experts.
To view the Workshop series flier, go here.
For more information and to register, contact EPA’s Brannon Walsh or Forrest John.
November Nutrients Permitting Workshop
The next 2018 Nutrients Permitting Workshop will be held November 6-8, 2018 in Gulfport, Mississippi at the Courtyard Marriott Gulfport Beachfront, 1600 East Beach Blvd., Gulfport, Mississippi. Secure your lodging now using the group code G-3657 to receive the group rate when making either online reservations or reservations over the phone. You can call the hotel direct at 228-864-4310. To register and for more information, go here.
The draft agenda is available here. It is subject to change.
For more information on the meeting, please contact Mark Patrick McGuire.
ACWA Watersheds Committee Call
Thursday, August 30th, 3:00 – 4:30 pm ET
Contact Julian Gonzalez for more information