Proposal to Reissue and Modify Nationwide Permits
The U.S. Army Corps of Engineers (Corps) Proposal To Reissue and Modify Nationwide Permits was published in the Federal Register this week. Nationwide Permits (NWPs) authorize certain activities under Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act of 1899. The Corps is proposing to reissue its existing NWPs and associated general conditions and definitions with some modifications, as well as to issue five new NWPs. Two of the new proposed NWPs would authorize certain categories of mariculture activities (i.e., seaweed and finfish mariculture) that are not authorized by NWP 48. The Corps is also proposing to divide the current NWP that authorizes utility line activities (NWP 12) into three separate NWPs that address the differences in how different linear projects are constructed, the substances they convey, and the different standards and best management practices that help ensure those NWPs authorize only those activities that have no more than minimal adverse environmental effects. Specifically, the Corps is proposing to modify the current utility line NWP 12 to authorize only oil and natural gas pipeline activities. Two new proposed NWPs would authorize activities associated with the construction, maintenance, repair, and removal of electric utility lines/telecommunication lines and utility lines that convey water, sewage, and other substances. The fifth new proposed NWP would authorize discharges of dredged or fill material into jurisdictional waters for the construction, expansion, and maintenance of water reuse and reclamation facilities. According to the proposal, these modifications simplify and clarify the NWPs, reduce burdens on the regulated public, and continue to comply with the statutory requirement that these NWPs authorize only activities with no more than minimal individual and cumulative adverse environmental effects. The Corps is requesting comment on all aspects of these proposed nationwide permits which are due by November 16, 2020.
ACWA is currently evaluating whether the association will submit comments on this proposal. If you have specific comments or concerns with the proposal, please send those to at Janastasio@nullacwa-us.org.
SNC Compliance Advisory
This week EPA released the general SNC NCI Compliance Advisory. EPA is hoping to distribute this document to all NPDES permittees to help educate them on the SNC NCI initiative. The goal of this NCI is to ensure “all NPDES permittees—not just industrial contributors—are complying with their permits.” NPDES permittees, regardless of facility size or type, will see an increase by EPA, and its state and tribal partners, in identifying and addressing SNC violations using compliance tools, including enforcement. The SNC NCI aims to cut significant non-compliance by 50% and to also ensure that the most serious SNC violations are timely and appropriately addressed. States, interstates, territories, industry groups, municipal groups, and other entities that communicate regularly with NPDES permittees are encouraged to circulate this Compliance Advisory. If you would like assistance developing other forms of communication on this SNC NCI initiative beyond the Compliance Advisory itself, please contact Rachel McAnallen (Mcanallen.Rachel@nullepa.gov).
EPA Proposes New Financial Capability Assessment for the CWA
EPA announced its proposed 2020 Financial Capability Assessment (FCA) for the Clean Water Act, which will help communities plan for water infrastructure improvements. Through the 2020 FCA, EPA is seeking to support water utilities that serve economically disadvantaged communities and provide vital clean water services that support public health, the environment and local economies. This is the first time in more than 20 years this document has been updated.
As part of the 2016 Appropriation, Congress directed EPA to contract with the National Academy of Public Administration (NAPA) to create a framework for “community affordability.” The resulting report from NAPA included several recommendations for improving EPA’s 1997 FCA Guidance and 2014 FCA Framework. The proposed 2020 FCA reflects these recommendations and updates EPA’s methodology for evaluating a community’s capability to fund CWA projects/programs. EPA also engaged with various stakeholders to ensure the Agency understands the full range of issues and views. Additional information about the proposed 2020 FCA is available here.
The 2020 FCA proposal explores how customers’ ability to pay for service impacts planning for capital expenditures and operation and maintenance needed to support Clean Water Act compliance. This guidance is used to evaluate the financial capability of a community when developing a schedule (i.e., plan) for water infrastructure improvements. EPA’s proposed FCA 2020 guidance includes new metrics to inform a community’s implementation schedule, including indicators that more accurately reflect how much low-income communities can afford to pay for water infrastructure upgrades. When finalized, the 2020 FCA will support negotiations of schedules for implementing Clean Water Act requirements for municipalities and local authorities. Upon publication in the federal register, EPA will accept comment for 30 days via the Federal eRulemaking portal referencing Docket ID No. EPA–HQ– OW–2020–0426.
Florida Seeks 404 Assumption
EPA has received a request from the Governor of Florida to administer their own permit program for the discharge of dredged or fill material into navigable waters, other than those waters that the CWA reserves as subject to Corps jurisdiction. Pursuant to CWA Section 404(h) and EPA’s implementing regulations, EPA will hold public hearings and is opening a 45-day comment period. EPA is also initiating a programmatic consultation under Section 106 of the National Historic Preservation Act (NHPA) and is soliciting comments pursuant to NHPA implementing regulations during the 45- day comment period. Comments on EPA’s decision to approve or disapprove under CWA Section 404 must be received on or before November 2, 2020. Comments associated with the consultation under section 106 of the NHPA may also be submitted on or before November 2, 2020. EPA intends to approve or disapprove the State of Florida’s request to assume administration of a CWA Section 404 program by December 17, 2020.
Termination of Temporary Advisory
On September 15, 2020, OECA announced the termination of the Temporary Advisory for NPDES Reporting in Response to COVID-19. Termination of the Temporary Advisory is reflective of the August 31, 2020 deadline associated with EPA’s decision to use enforcement discretion associated with COVID-19 violations consistent with OECA’s Assistant Administrator memo issued March 26, 2020 and titled COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program. The Temporary Advisory originally announced the use of a new NODI Code (Code Z) to indicate a permittee believes they did not have sampling or monitoring data to report due to the COVID-19 pandemic. In the September 15, 2020 memo EPA confirms use of Code Z is generally no longer allowed except in those scenarios where COVID-19 related noncompliance occurred prior to August 31, 2020. The September 15, 2020 memo confirms EPA will still temporarily accept scanned versions of signed paper/subscriber agreements as long as the wet signature is mailed out within two business days. A copy of the September 15, 2020 Termination memo was circulated to the ACWA membership on September 17, 2020.
NOAA Releases State-specific Index of Drought Vulnerability and its Drivers
In recognition that drought is one of the costliest natural hazards in the U.S., a new National Oceanic and Atmospheric Administration-funded assessment indicates the susceptibility to and preparedness for drought in each state. The tool is intended to help states and stakeholders identify which specific vulnerabilities they should address, to enhance drought planning, preparedness, and resiliency. The assessment evaluated state vulnerability as a function of exposure (local frequency of drought and the number of people, ecosystems, and assets impacted), sensitivity (likelihood of economic decline as a function of water-reliant goods and services), and adaptive capacity using eleven socioeconomic, climatic, and environmental indicators. In this way, the assessment captures drought’s adverse affects to local economies and freshwater ecosystems as well as drought risk and climatic heterogeneity.
Overall, the assessment finds high vulnerability, sensitivity, exposure, and inability to adapt across the nation and sub-regions, even within historically “wet” climates. Find NOAA’s graphical summary here and the full assessment here.
USGS Study Confirms Mixture of Multiple Pesticides Common in Contiguous US Waterways
USGS NWQP recently released the results of pesticide sampling of 72 waterbodies in the contiguous U.S. between 2013 and 2017. In 88% of the 5,000+ samples (which were representative of varying watershed and land use configurations), a blend of five or more pesticides were confirmed. While concentrations varied, ~12% of samples were predicted to have potential acute or chronic toxicity to aquatic invertebrates. The study was a step towards identifying primary contributors to toxicity in pesticide mixtures (i.e., the pesticide(s) most responsible for aquatic life toxicity, among all pesticides present) to enhance the quality of rivers and streams and support aquatic life health. Find the study here.
EPA Guidance; Administrative Procedures for Issuance and Public Petitions
On September 14, 2020 EPA Administrator Andrew Wheeler signed the final rule titled EPA Guidance; Administrative Procedures for Issuance and Public Petitions. This summary is derived from the prepublication version which was submitted for publication in the Federal Register. This final official version will be available through the Federal Register at Docket EPA-HQ-OA-2020-0128.
This final rule establishes EPA procedures and requirements for how the agency will manage the issuance of guidance consistent with E.O. 13891. This rule provides a definition of guidance documents, establishes general requirements and procedures, incorporates additional requirements for “significant” guidance documents, and provides a process for public petition to modify or withdrawal/rescind current guidance. The final rule becomes effective 30 days after publication in the Federal Register, but the petition process applies to all current active guidance documents. Certain documents are exempt from this rule including contracts, cooperative agreements, grants, legal briefs/opinions, rules, adjudications, press releases, and news.
A short summary of what is in the rule can be found below:
Section 2.502 Scope
Procedures for significant guidance applies to those as determined by E.O. 12866 and 13891
Petition to modify/withdrawal guidance applies to all active guidance documents, regardless of when finalized
Petition to reinstate a rescinded guidance applies to all guidance regardless of when finalized
All active guidance documents will be listed in EPA’s Guidance Portal
Regional guidance must receive approval from EPA headquarters
Guidance must avoid mandatory language such as “shall”, “must”, “should”, “requirement”, etc.
EPA will pursue significant determination through OMB’s Office of Information and Regulatory Affairs
Draft significant guidance will be subject to notice and comment via the Federal Register
Withdrawal of significant guidance will also be subject to notice and comment via the Federal Register
Notice and comment will be a minimum of 30 days, EPA will respond to major comments
No public comment where emergency, immediate public health concern, infeasible, impracticable, unnecessary, or contrary to public interest
Significant guidance must comply with E.O.s 12866, 13563, 13609, 13771, 13777, and 13891
Public may petition EPA for modification, withdrawal, or reinstatement
EPA will make available to public list of all petitions received
EPA will respond to petitions within 90 days, EPA can extend 90 days further if warranted
Senate Environment and Public Works Committee Hearing on Stakeholder Reactions to the Navigable Waters Protection Rule
On Wednesday, September 16, 2020, the Senate EPW Committee held a hearing for stakeholders to share their reactions to the new Navigable Waters Protection Rule. The hearing featured testimony from Ray Gaesser of Gaesser Farms in Iowa, Douglas Davis Jr. of the National Association of Home Builders, and Rebecca Roose of the New Mexico Environment Department’s Water Protection Division.
A major theme running through all three testimonies was uncertainty. While Gaesser and Davis Jr. focused on the issues that farmers and developers faced with President Obama’s WOTUS rule such as permitting delays (sometimes delaying projects up to 10 years), Roose brought up concerns about states like New Mexico, which has lost 90% of its CWA protections under the Navigable Waters Protection Rule, that lack the state resources or regulations necessary to protect watersheds in the absence of federal regulations.
EPW senators’ questioning fell predictably along party lines. Republican senators focused on landowners’ right to manage their own land, economic impacts, bureaucratic red-tape, and broad, regulatory overreach, while Democratic senators pushed for answers supporting strong protections and accountability in watershed preservation.
The final rule went into effect on June 22, 2020.
Former ACWA Members Win EPA Awards
Ronald Poltak, former Executive Director of NEIWPCC and past ACWA President, was given the Ira Leighton “In Service to States” annual award for environmental achievement that has had an outsized impact in the state, the region, and nationally. The award recognized Poltak for his work at the helm of the NEIWPCC for 37 years until his retirement in 2017.
The Ira Leighton “In Service to States” award recognizes an individual or organization that has made significant strides in facilitating state and federal partnerships through innovative sustainable solutions addressing critical environmental challenges in New England. The NEIWPCC, the Northeast States for Coordinated Air Use Management, the Northeast Waste Management Officials’ Association in coordination with New England state Commissioners and the US EPA, Region 1 initiated this award as a tribute to Ira Leighton. He was a U.S. EPA Deputy Regional Administrator who dedicated over forty years as a public servant to protecting the environment, and passed away in 2013.
Alicia Good, recently retired from RIDEM as director of the water program from 2000 until her retirement in 2019, was given the Lifetime Achievement Award. Her career spanned 37 years with RIDEM and she was a long-time active member of ACWA, serving as the Region 1 Board Representative and chair of the Stormwater Workgroup.
2020 National CAFO Roundtable – September 22-24
This year, the 2020 National CAFO Roundtable will be held virtually in the afternoons of September 22 – September 24 from 12:30-5:00 PM Eastern Time. ACWA invites states and interstates to share this meeting information with other state agencies. A draft agenda and meeting registration link are available on ACWA’s website. This meeting is not open to the public, but there will be several non-regulatory guests invited to present. To ensure the meeting is as accessible as possible, there will be no registration fee. If you have any questions about this meeting visit the website or contact Sean Rolland directly.
Introduction to Surface Water Quality Modeling – October 19-20
Due to the postponement of the 2020 Modeling Workshop, ACWA will be hosting a 2-day event: Introduction to Surface Water Quality Modeling, starting Monday, October 19, 2020. This series is designed as an introductory course for those new to modeling or interested in a refresher. This series will cover a variety of topics, including: modeling principles, model selection, data needs, how to get data, and overviews of the different model types. Please note that this series is for State, Tribal, and EPA staff.
2020 Virtual Nutrients Permitting Workshop – October 26-29
ACWA’s next Nutrients Permitting Workshop, the fifth in a series of seven, will be held virtually. Sessions will take place October 26-29, 2o2o from 1:00-5:00 PM Eastern Time. This workshop will focus on nutrients permitting flexibilities such as water quality trading and other market-based methods, integrated planning, and more. Sessions will take place through GoToWebinar, and a draft agenda with registration links may be found on the workshop event page. If you have any questions about this meeting visit ACWA’s website or contact Jasper Hobbs directly.
DOE Webinar: Water Resource Recovery Prize
Date: September 21, 2020 from 1-2 PM Eastern Time
Registration: Click here
The Wastewater Resource Recovery Prize, part of the Water Security Grand Challenge, offers up to $1m towards the development of innovative water treatment technology system configurations and plans that will help lower the overall cost of treatment at small- and medium-sized facilities. The webinar will introduce the Challenge, pitches from Phase 1 of the Prize, options and solutions discovered during Phase 1, and Q&A.
EPA Webinar: Wildfires and Resulting Impacts to Water Bodies Used as Drinking Water Sources
Date: September 29, 2020 from 2-3 PM Eastern Time
Registration: Click here
This presentation will provide information on the impacts of high- and low-severity wildfires on dissolved organic matter concentrations in water bodies used as drinking water sources and disinfection by-products formation during treatment, as well as decision support for utilities impacted by wildfire using real-world examples.
EPA Webinar: SARS-CoV-2 in Wastewater Monitoring: Linking Research and Application to Meet Immediate Needs
Date: September 30, 2020 from 2-3 PM Eastern Time
Registration: Click here
This webinar will focus on collaborative efforts of EPA’s SARS-CoV-2 wastewater monitoring research team to reduce uncertainties around method development within the lab, application in sewersheds with distinctive levels of industrial and stormwater impacts (in coordination with Cincinnati Metropolitan Sewer District) and development of a wastewater surveillance systems in Ohio (in support of the Ohio Department of Health).