EPA issues CWA Section 401 Guidance
Today, June 7, 2019, EPA released guidance for states, tribes, and federal agencies, titled Clean Water Act Section 401 Certification Guidance for Federal Agencies, States, and Authorized Tribes. The guidance clarifies the existing Section 401 regulations and provides recommendations on coordination between federal agencies, states, and authorized tribes. The guidance also provides clarification on Section 401 requirements and procedures on a variety of topics including: Statutory and regulatory timelines for review and action on a Section 401 certifications; the appropriate scope of CWA Section 401 certification conditions; and information within the scope of a state or authorized tribe’s CWA Section 401 review.
For background, on April 10, 2019 the President issued an Executive Order directed at increasing clarity on Clean Water Act Section 401 certification and federal permitting processes to allow for greater investment in energy infrastructure in the United States. The Executive Order directed EPA to issue new guidance for federal permitting agencies and state and tribal authorities within 60 days of the Executive Order (no later than June 10, 2019), and propose new rules within 120 days (no later than August 8, 2019) to clarify Section 401 certification procedures. The President has directed the agency to consult with EPA’s state and tribal co-regulators to determine how to clarify and modernize the 401 certification process.
Executive Order 13868 also directed EPA to propose a new rule that modernizes the agency’s rules implementing Section 401 regulations by no later than August 8, 2019. The agency has initiated formal consultations with its state, local, and tribal partners, as well as outreach with its federal partners on this rulemaking effort and invited written pre-proposal recommendations through a public docket. EPA is carefully reviewing the input it received through these engagements and the docket prior to issuing a proposal. The agency will continue to engage with states, tribes, and federal agencies throughout the rulemaking process to determine how to improve the 401 certification process.
EPA Issues Memo to Increase the Agency’s Compliance with Clean Water Act Deadlines
The Office of Water, in a memorandum to regional administrators, directed regional offices to comply with statutory deadlines for acting on state and tribal CWA submittals while improving responsiveness in the agency’s oversight role. This policy applies to EPA ‘s review of all CWA program submittals. The memo directs regional offices to approve or disapprove state and tribal CWA submittals within the timelines established by Congress. For example, EPA must approve new or revised water quality standard submittals within 60 days of the date of the submission or disapprove within 90 days, and the agency must approve or disapprove biannual lists of waters determined to be impaired and total maximum daily loads within 30 days.
EPA’s memo underscores the importance of restoring the agency’s oversight role to be more consistent with congressional intent. Should the agency disapprove a state or tribal submittal on the basis that it fails to meet CWA requirements, the memo directs regional offices to develop a plan to ensure all required follow up actions are consistent with CWA requirements and statutory deadlines. This plan must be put into place prior to issuing the disapproval.
EPA & FEMA Sign MOU to Support Rapid Recovery and Restoration of Water Infrastructure After Disaster Strikes
On May 31, 2019, the Administrator of the U.S. Environmental Protection Agency (EPA), Andrew R. Wheeler, and the Acting Director of the Federal Emergency Management Agency (FEMA), Pete T. Gaynor, signed a Memorandum of Understanding (MOU) between the agencies, that streamlines coordination between FEMA and the State Revolving Fund (SRF) programs so funding to restore vital water infrastructure can be provided as quickly as possible in times of disaster.
The MOU between the EPA and FEMA establishes a framework for the SRF programs to assist and collaborate with FEMA disaster assistance grant programs. The SRFs have worked cooperatively with FEMA and state, local, tribal, and territorial governments to allow local entities to recover quickly and restore their vital infrastructure after a Presidential-declared disaster.
Traditionally, to fund the rebuilding of water infrastructure after a disaster, a community would have to expend its own funds first and wait for reimbursement through a FEMA grant or wait for emergency supplemental funds from Congress. But in disaster situations, cash reserves are often stretched thin. This MOU provides a tribe or local government access to a no- or low-interest loan from its SRF to help pay for the immediate restoration of vital drinking water and wastewater infrastructure.
The MOU also makes clear that SRF funds derived from prior loan repayments, state match, and interest earnings are state funds and may be reimbursed by FEMA. Additionally, the MOU explains that the SRFs can act as a cost-share financing source for a municipality applying for FEMA disaster assistance grant funding.
Providing clean drinking water and effective wastewater treatment are critical to protecting public health and the environment. These essential services need to be repaired as soon as possible following a disaster. For more information, please contact Nick Chamberlain in the Drinking Water SRF Program at firstname.lastname@example.org or (202) 564-1871, or Shelia Platt in the Clean Water SRF Program at email@example.com or (202) 564-0686.
EPA Construction General Permit
Last week EPA finalized and published updates to the 2017 Construction General Permit (CGP) for those construction activities in areas where EPA is the permitting authority. This updated permit will take effect on June 27, 2019. Updates to the permit included: 1.) removing the examples of the types of parties that could be considered operators in the definition of operator; 2.) better aligning three requirements that implement the Construction and Development Effluent Limitations Guidelines (ELG) and New Source Performance Standards (NSPS) with the ELG text; and 3.) clarifying individual operator responsibilities in multiple operator scenarios. The updated 2017 CGP does not affect the eligible coverage area, the number or type of entities eligible for coverage, or the five-year permit term. The updated 2017 CGP will expire on February 16, 2022. A copy of the Federal Register Notice can be found here.
Below are links to other key documents:
- Federal Register Notice for the final modification
- Excerpt of changes
- Final modified permit
- Fact sheet
EPA Rule Added Animal Waste Exemption Under EPCRA
This week EPA Administrator Wheeler signed a rule amending regulations under the Emergency Planning and Community Right-to-Know Act (EPCRA). The amendments clarify that reporting of air emissions from animal waste at farms is not a requirement under EPCRA. Administrator Wheeler said “this action eliminates an onerous reporting requirement and allows emergency responders and farmers to focus on protecting the public and feeding the nation, not routine animal waste emissions.” The changes to EPCRA now provide consistency with CERLCA, which was amended last year to exempt air emissions from animal waste at farms. The final rule and more detail can be found here.
Webinar on Natural Disaster Preparedness and Recovery for Communities Served by Decentralized Wastewater Systems
On June 19 from 1:00-3:00pm EDT EPA is hosting a webinar titled Natural Disaster Preparedness and Recovery for Communities Served by Decentralized Wastewater Systems sponsored by the EPA Decentralized Wastewater MOU Partnership.
Speakers for this webinar include experts from the National Environmental Health Association (NEHA), EPA officials in Puerto Rico and a local official in coastal Connecticut. For more information, see the announcement flyer. All attendees should register for the webinar here: https://register.gotowebinar.com/register/4199872033856646668
ACWA Submits Comment Letter on Groundwater Interpretive Statement
This week, ACWA submitted comments on EPA’s Interpretive Statement on Application of the Clean Water Act National Pollutant Discharge Elimination System Program to Releases of Pollutants from a Point Source to Groundwater. According to EPA, the Clean Water Act only applies to lakes, rivers, and other bodies of water on the surface, not groundwater, even if pollution is discharged into groundwater and then migrates into a surface water. However, due to circuit court decisions, the Statement only applies in jurisdictions other than the states in Fourth and Ninth Circuit. EPA also plans a full rulemaking process once a decision in the U.S. Supreme Court case County of Maui v. Hawaii Wildlife Fund is reached. To view ACWA’s letter, go here.
Clean Water Act Implementation: Revisiting State Resource Needs
Over the last 4 months, post-graduate study students at the George Washington University Trachtenberg School of Public Policy and Public Administration have been working on an ambitious research project that analyzes funding for state Clean Water Act programs. Excerpts from the Executive Summary from this report can be found below.
“Since 1972, U.S. states have assumed increasingly complex compliance and enforcement responsibilities under the Clean Water Act (CWA). In 2002, the U.S. Environmental Protection Agency (EPA) convened a State Water Quality Management Resource Analysis Task Force (“Task Force”) that found an estimated annual gap ranging from $735 million to $960 million between state expenditures and state resource needs for managing water programs under the CWA (National Academy of Public Administration [NAPA], 2002). In the 17 years since, CWA regulations and the universe of regulated entities have changed. Consequently, the Task Force’s 2002 State Water Quality Resource Management Analysis likely does not represent the current status of state expenditures and need…”
“If we used medians to extrapolate to the national level, our data suggested a national gap of approximately $280 million between federal spending and Actual spending; in other words, states were hundreds of millions of dollars short of what they needed to meet their minimum obligations under the CWA. Extrapolating to the national level also suggested a national gap of approximately $210 million between Actual and Ideal spending. Together, these approximations totaled a national gap of $490 million between what states actually spent and what they needed to meet their CWA goals.”
“Our analysis demonstrated that a funding gap persists nearly two decades after the EPA conducted its resource needs assessment. Surprisingly, our results showed a smaller gap between funding availability and needs than the EPA found in 2002. This may have been influenced by our respondent states being more arid— in other words, our respondents may have smaller CWA programs than other states. This finding would seem to conflict with anecdotal and quantitative evidence recounted in our literature review that suggested a widening needs gap.”
A copy of the report can be found here.
ACWA Holds Legal Affairs Committee Quarterly Call
This week, the ACWA Legal Affairs Committee held its quarterly call. The call featured presentations on two harmful algal bloom cases. First, Melanie Davenport and John Kennedy of Virginia DEQ presented on Potomac Riverkeeper v. Wheeler, a case in which Potomac Riverkeeper challenged EPA’s approval of Virginia’s 2016 impaired waters list. Second, Madeline Fisher of the Environmental Law and Policy Center presented on Environmental Law and Policy Center and Advocates for a Clean Lake Erie v. EPA, a case arguing that the EPA has allowed Ohio to evade its legal duty to address nutrient pollution causing harmful algal blooms in western Lake Erie. For more information on the Legal Affairs Committee, contact Mark Patrick McGuire.
ACWA Nutrients Permitting Workshop – November 2019
Registration for the November 2019 Nutrients Permitting Workshop located in Alexandria, Virginia at the AlexRenew facility November 5-7, 2019 is live. To register, go here. The workshop will focus on identifying challenges and building solutions regarding water quality standards and permitting for nutrients. To view a draft agenda, go here.
Lodging is available at the Embassy Suites Alexandria Hotel. To reserve your lodging, call direct 703-684-7900 or 1-800-EMBASSY and ask for the Association of Clean Water Administrators group of rooms, or reserve online here.
ACWA offers a limited number of scholarships for state travel support to ACWA state members who would not otherwise be able to able to send a representative to an ACWA meeting. Preference will be given to member organizations that have not been able to send a representative to a Mid-Year or Annual Meeting in several years and Members who are seeking assistance to bring another staff member to the meeting who would not otherwise be able to attend. The scholarships will cover meeting registration fee, airfare, local travel, hotel and associated taxes.
To apply for a scholarship, please contact Sean Rolland, Deputy Director, at firstname.lastname@example.org or (202) 465-7179.
Coastal States Organization
Federal Affairs Associate – The Coastal States Organization (CSO) seeks an energetic, proactive, team oriented leader to educate Congress about coastal, ocean, and Great Lakes issues. Primary duties will center on legislative strategy implementation. The Associate will also lead CSO’s communications effort. CSO is a small, 501(c)4 not-for-profit, non-partisan organization founded in 1970 to represent the interests of the Governors of the nation’s coastal states and territories on legislative, regulatory, policy, and program matters related to coastal, ocean, and Great Lakes resources. For more information and how to apply, go here.