Agriculture Executive Order
On April 25, 2017 President Trump issued an executive order titled Presidential Executive Order on Promoting Agriculture and Rural Prosperity in America , which sets out the policy that regulatory burdens should not “unnecessarily encumber agricultural production, harm rural communities, constrain economic growth, hamper job creation, or increase the cost of food for Americans and our customers around the world.” The EO also establishes a Task Force to identify legislative, regulatory, and policy opportunities for rural America and outlines thirteen areas of focus. The EO also call for a report to be submitted to the President within 180 days.
Conduit Theory Case in VA
On April 21, Dominion Virginia Power filed an appeal to the 4th Circuit in Sierra Club, et al. v. Dominion Virginia Power. In the case, the U.S. District Court for the Eastern District of Virginia ruled that the plant was liable under the Clean Water Act for pollution leaks from coal ash into groundwater that lead to protected surface waters. The district court stated, “Where the facts show a direct hydrological connection between ground water and surface water, [the] goal [of the CWA] would be defeated if the CWA’s jurisdiction did not extend to discharges to that groundwater.” A 4th Circuit decision upholding the district court’s ruling could expose a host of power plants to citizen suits or other enforcement actions over similar leaks.
New WOTUS Case May Offer Fresh Questions
Pending in the 9th Circuit, USA v. Joseph Robertson has the potential to complicate the Trump Administration’s plans to use the “Scalia Test” instead of the “Kennedy Test” with regard to Clean Water Act jurisdiction. The case involves a Montana man’s appeal of his conviction for criminal CWA violations for filling in wetlands on his property without a permit. A new appellate ruling on which test to apply in CWA jurisdiction cases could foster fresh uncertainty on which of the two competing Supreme Court tests on the subject is valid — just as the Trump Administration is preparing to reverse prior policies that used an expansive interpretation of the two standards, and instead adopt a single, more restrictive test. Stay tuned!
Senate Environmental and Public Works Committee Holds Hearing on WOTUS
On April 26th, 2017 the Senate Committee on Environment and Public Works held a hearing entitled: “A Review of the Technical, Scientific, and Legal Basis of the WOTUS Rule.” The hearing was attended by ten committee members (5 republicans, 5 democrats). Questions and comments fell along traditional bipartisan lines with the majority stating that the rule is not supported by the best available science nor were local governments and the US Army Corp of Engineers properly consulted. The minority argued that the process was open and transparent and included the best available science. Additionally, there was an increased focus from the minority on the proposed budget , although not in the purview of the hearing.
Chairman Barrasso released a joint statement with Administrator Pruitt following the hearing in which The Chairman stated, “Today’s hearing demonstrates that the WOTUS rule is not supported by technical expertise, science, or the law. By including states and local governments, Administrator Pruitt has shown he will not repeat the mistakes made by the last administration, as he begins the important work of rewriting this fundamentally flawed rule.” An archived webcast and written testimony from the hearing can be found here.
ACWA 2017 Water Quality Trading Workshop
On June, 27, 2017, ACWA is hosting a Workshop in Washington, DC on water quality trading. The Workshop will be a venue for face-to-face information sharing between the states with various levels of involvement in water quality trading, including states with robust programs, states in the process of starting programs, and states looking to learn more about trading. The goal of the Workshop is to establish open lines of communication between practitioners nationwide. For more information, contact Mark Patrick McGuire.
EPA Begins Regulatory Reform Initiative
This week, EPA has begun the rollout process related to implementation of Executive Order 13777 “Enforcing the Regulatory Reform Agenda”. This EO creates, at each agency, designated staff positions (“Regulatory Reform Officers” making up “Regulatory Reform Task Forces”) designed to oversee the process of modifying and repealing regulations and to report progress on this initiative to agency leadership. EPA leadership has expressed strong interest in ACWA member thoughts on what regulations, guidance, and other related policy can be repealed, streamlined, or modified in some capacity.
On Wednesday, ACWA attended two meetings at EPA to have very early stage discussions on how EPA should implement EO 13777. One meeting was attended by water associations such as ACWA, ASDWA, and GWPC, the other by a wider swath of intergovernmental associations not limited to water. ACWA is currently strategizing how best to provide EPA with input on their implementation of the EO. In the meantime, if your agency/office either plans on developing a list of regulations and/or guidance for EPA to modify or repeal, or plans on submitting formal comments, please get in touch with Julian Gonzalez.
Lastly, as part of its public outreach EPA Office of Water is planning a virtual listening session for the public with a limited number of available phone lines. To learn more about that, click here.