Leaked White House Infrastructure Plan
Since taking office the President has been discussing a $1 trillion infrastructure plan to build and maintain roads, bridges, and water systems. This plan is expected to be released soon after the January 30, 2018 State of the Union address. This week, a six page document was leaked that many believe represents portions of the draft plan. This draft document discusses eligibility, incentives, performance measures, prioritization, process, limitations, preferred projects and programs, partnerships, and principles for infrastructure improvements. What is conspicuously missing from this draft is a budget, funding sources, minimum match requirements, and details on how funds will be leveraged.
Water infrastructure is mentioned throughout the document and appears to be a recognized priority for the plan. Of particular note was language that expanded the scope of the WIFIA loan program related to enable more private sector funding and involvement, along with also financing land rehabilitation and Superfund cleanups. Expanding eligibility is a common theme in the draft plan – it also shows up in the incentives section. “Federal incentive funds will be conditioned on achieving milestones within an identified timeframe.” Eligible projects would include drinking water facilities, stormwater facilities, Brownfields and Superfund sites. The document also calls for authorizing the use of SRF funds for “privately owned public purpose treatment works.”
Senate overwhelmingly confirms R.D. James to head the Army Corp
R.D. James was confirmed by voice vote 89-1 yesterday. Prior to this appointment, James was a self-employed farmer in Missouri and owned multiple cotton gins and grain elevators. He was appointed to the Mississippi River Commission for three nine-year terms in 1981, 1991, and 2003.
WOTUS Update: SCOTUS rules district courts, not appeals courts, proper venue for challenges
On Monday, SCOTUS ruled in National Association of Manufacturers v. Department of Defense et al. that the appropriate venue for challenges to the 2015 Clean Water Rule are district courts, not appeals courts. You can read the opinion here. The decision has implications for the current and future WOTUS landscape, as the 6th circuit court of appeals, which previously issued the nationwide stay on the 2015 rule, is now widely expected to formally lift the stay in February, in accordance with the ruling of the Supreme Court. Following that, district court litigation disputing the 2015 rule is widely expected to continue in circuits where, prior to the consolidation of cases in the 6th circuit court of appeals, there were already challenges. Additionally, other district courts which previously ruled that appeals courts were the appropriate venue for WOTUS litigation will likely begin to take up cases filed by states (and other stakeholders) challenging the rule.
The most notable concrete example of the fallout from the Supreme Court decision is that there are 13 states (AK, AZ, AR, CO, ID, MO, MT, NE, NV, SD, ND, WY, NM) where the 2015 rule was stayed by a district court in North Dakota prior to the 6th circuit consolidation. Those states are currently operating under the pre-2015 rule WOTUS landscape, because of the North Dakota district court stay which now remains active.
The other 37 states will be operating under the 2015 rule until either of the following happens:
1) Other district courts issue stays on the 2015 rule, similar to the one mentioned above. The U.S. District Court for the Southern District of Georgia, for example, will likely soon receive a request to stay the rule from an 11-state coalition led by Georgia.
2) EPA finalizes their proposed rule repealing the 2015 rule or their proposed rule adding an applicability date to it and pushing back its implementation two years. These proposed rules will also likely be the immediate focus of litigation questioning both substance of the proposed rules as well as the process behind their proposal and expected finalization.
EPA Sends WOTUS Applicability Date Rule to OMB
Today, EPA sent their proposed rule adding an applicability date to the 2015 Clean Water Rule, pushing back implementation until 2020, to the Office of Management and Budget. When finalized, the rule would effectively delay implementation of the 2015 Clean Water Rule while EPA continues forward developing a new definition of Waters of the US in a separate rule making effort. It should also be noted that this applicability date rule is widely expected to be challenged in court by environmental organizations as well as several states. For more information contact Julian Gonzalez.
EPA Hosting WOTUS Webinar for States on February 20th
The Environmental Protection Agency (EPA) and the Department of the Army are inviting states to a webinar to discuss EPA direction and progress as they consider revising the definition of “Waters of the United States” (WOTUS). This webinar is limited to states and their representative associations, such as ACWA. The webinar will be held Tuesday, February 20, from 3:30-4:45 p.m. EST. Please save the date! Registration information will follow by the week of February 5; all participants must register by February 16.
At this webinar, the agencies will share information on:
- Progress on WOTUS rulemaking efforts
- Baseline information being collected to inform the economic analysis and technical support document (methodology and, where possible, draft results)
- Initial high-level policy direction
There will be an opportunity for questions and answers following the presentation. Stay tuned for more information in the coming weeks. For more information contact Julian Gonzalez.
USDA Farm Bill Priorities Paper Released
This week, the United States Department of Agriculture released the 2018 Farm Bill & Legislative Priorities position paper. In the document, USDA states that they support legislation that will ensure that voluntary conservation programs balance farm productivity with conservation benefits so the most fertile and productive lands remain in production while land retired for conservation purposes favor more environmentally sensitive acres, as well as support conservation programs that ensure cost-effective financial assistance for improved soil health, water and air quality and other natural resource benefits.
2018 National Pretreatment Meeting
Event and hotel registration for this meeting is live! The 2018 National Pretreatment Meeting will be held April 17-18, 2018 in Silver Spring, Maryland at the Tommy Douglas Conference Center (“TDCC”), 10000 New Hampshire Ave, Silver Spring, MD 20903. If you plan to attend the meeting, you must register. Please do so by Monday, April 2, 2018. To register for the meeting, go here.
Lodging is available on site at TDCC at rates of $209 for single room and $249 for a double room (plus tax). To reserve a room, please call 240-645-4000 or email firstname.lastname@example.org. Please ask for the Association of Clean Water Administrators block of rooms when making your reservation. If you choose to stay at TDCC as part of the ACWA room block, complimentary breakfast and dinner are included with your room. The deadline for the room block is Monday, April 2, 2018. For more information on TDCC, go here.
For more information on the meeting, please contact Mark Patrick McGuire.
2018 Mid-Year Meeting
Early Bird Registration is extended to February 12, 2018
Why wait? Register Now! for the 2018 Mid-Year Meeting and receive the early bird rate! This meeting is planned as a day and a half state and EPA round table discussion, and is a closed meeting for ACWA members and invited guests. State attendees will kick off the morning with a states only discussion and then we will welcome our partners from EPA, Office of Water to join us at noon and stay with us for the remainder of the meeting. Our goal is to generate a conversation among the states and EPA. Go here to reserve your lodging accommodations. To register and pay for your registration, go here. If you encounter problems logging into ACWA’s new AMS system, Member 365, go here for more information, or email Katie Foreman. If you encounter issues paying for your registration, contact Annette Ivey. View the updated draft agenda here.
Rural Workgroup Call
This week ACWA’s Rural Workgroup participated in a call with EPA to discuss the EPCRA/CERCLA reporting requirements. Following a reportable hazardous substance release, a facility owner/operator must notify federal authorities under CERCLA and state and local authorities under EPCRA. In December of 2008, EPA published a final rule that exempted most farms from certain reporting requirements under CERCLA and EPCRA. Generally speaking, all farms were relieved from reporting hazardous substance air releases from animal waste under CERCLA, and only large CAFOs were subject to EPCRA reporting. On April 11, 2017, the Court struck down the final rule, eliminating the reporting exemptions for farms. On January 19, 2018, EPA filed a motion to further delay issuance of the mandate – no reporting is required until the Court issues its final order/mandate to eliminate the reporting exemptions for farms. States on the call requested that EPA continue to share with ACWA any EPCRA/CERCLA program updates as stats CAFO program managers are getting lots of questions.
EPA continues to update its webpage with fact sheets, guidance, and other related information. On the RWG call we also discussed the need for the 2012 NPDES Permit Writers Manual to be updated. States were encouraged to share with EPA, through ACWA, any sections of the manual they believe are outdated, and or need revisions. ACWA also shared with states the proposed dates of September 25 -27, 2018 for the 2018 National CAFO Roundtable in Boise, Idaho. A save the date email will likely be going out next week.
Monitoring Standards and Assessment Webinar: New EPA Nutrient Web Tool
January 31 at 3:00-4:00pm EST
Contact Frances Bothfeld for more information.
Dental Amalgam Rule Webinar from ADA
Wednesday, January 31 at 3:00 pm Eastern
For registration information, contact Mark Patrick McGuire.
Legal Affairs Committee Quarterly Call
Thursday, February 15 at 1:00 pm Eastern
For more information, contact Mark Patrick McGuire.