Draft EPA Memo: Applying Maui Decision NPDES & Groundwater
ACWA is very interested in hearing whether your state believes we should comment on this draft guidance.
This week, EPA published in the federal register a draft memorandum intended to provide “focused guidance to the regulated community and permitting authorities, including the U.S. Environmental Protection Agency (EPA), on applying the recent decision of the United States Supreme Court in County of Maui v. Hawaii Wildlife Fund, 140 S. Ct. 1462 (2020) (“Maui”), on a case by case basis, in the Clean Water Act (CWA or the Act) Section 402 National Pollutant Discharge Elimination System (NPDES) permit program.” The Maui decision outlines seven non-exclusive factors for permitting authorities to consider when evaluating whether a discharge to ground water is the “functional equivalent” to discharging directly to a water of the United States.
The seven factors outlined by the Supreme Court in Maui includes: (1) transit time, (2) distance traveled, (3) nature of the soil/substrate, (4) impact on pollutant (diluted or chemically altered), (5) amount of pollutant entering navigable waters, (6) how the pollutant enters the navigable waters, and (7) the degree to which the pollution has maintained its specific identity.
The guidance indicates that Maui did not alter the overall statutory or regulatory structure but rather “identified an additional analysis that should be conducted in certain factual scenarios to determine whether an NPDES permit is required.” But the guidance also has added a factor not presented by the court: consideration must be given to whether a facility was actually designed and is performing to discharge pollution or minimize/reduce it. The guidance says that some facilities may be less likely to need a permit if the facility uses a waste storage or treatment system rather than if it discharges pollutants “consistently and predictably” into groundwater.
EPA has also outlined three major concepts for how this analysis should occur.
- An actual discharge of a pollutant to a water of the United States is a threshold condition that must be satisfied before the need for an NPDES permit is triggered.
- The discharge of pollutants that reaches, or will reach, a water of the United States must be from a point source to trigger NPDES permitting requirements.
- Only a subset of discharges of pollutants to groundwater that ultimately reach a water of the United States are the “functional equivalent” of a direct discharge to a water of the United States.
EPA notes that historically, few NPDES permits have been issued for point source discharges of pollutants that reach waters of the United States via groundwater. There is a 30-day comment period for this guidance ending on January 11, 2021.
House Passes 2020 Water Resources Development Act
The House approved a $9 billion package authoring WRDA 2020 this week. WRDA 2020 provides authority for the U.S. Army Corps of Engineers (Corps) to carry out water resources development projects and studies. It also reforms and provides policy direction to the Corps for implementation of its civil works missions. While both the House and Senate Committee versions of WRDA 2020 included reauthorization and increase in funding to the CWSRF and NPDES permit term changes, the conference bill is limited to the Corps titles. The path in the Senate is less clear, but one possibility would be for the WRDA to become part of a larger 2021 spending measure-coronavirus relief bill or a an infrastructure stimulus bill. That legislation is still being negotiated. More information, including bill text, can be found here.
House Passes Continuing Resolution to Fund Government as Deadline Approaches
On Wednesday, the House of Representatives passed a short-term Continuing Resolution (CR) to avoid a government shutdown beginning tonight at midnight. The CR extends government funding through December 18, 2020, giving Congress additional time to pass a comprehensive coronavirus relief bill and broader funding for FY21.
With a midnight deadline looming above the Capitol, the pressure is on the Senate to pass the CR as soon as possible – but partisan squabbles over the NDAA, additional COVID-19 relief checks, scheduling logistics, and more are holding up the process. As of right now, there is no indication of when the Senate will convene to hopefully avoid a government shutdown.
EPA to Provide $17.7 Million to Small Communities
This week, EPA announced the availability of $17.7 million in grant funding to nonprofit organizations for technical assistance and training providers to support small wastewater and drinking water systems. Specifically, funding will help small systems achieve and maintain compliance with the Clean Water Act and Safe Drinking Water Act. Eligible applicants for this competitive agreement are nonprofit organizations, nonprofit private universities and colleges, and public institutions of higher education. The application for competitive grants must be received by February 12, 2021. For more information, click here.
EPA Regulatory Agenda Released
This week, EPA released its Fall 2020 Regulatory Agenda. Some of the rules/guidance that ACWA is or has been tracking include:
EPA Seeks Information on Beneficial Use and Piles of Coal Ash
EPA is releasing a notice seeking information and data related to the beneficial use and piles of coal combustion residuals (CCR, commonly known as coal ash). Coal ash can be beneficially used to make new products, such as wallboard or concrete. Due to the many potentially useful properties of coal ash, a vast array of businesses from construction to agriculture and manufacturing choose coal ash as a substitute for other materials. In 2015, EPA published a final rule that encouraged the continued beneficial uses of coal ash. Certain provisions were subsequently challenged in court.
In August 2019, EPA proposed a rule to address two provisions of the 2015 coal ash rule remanded to the agency by the DC Circuit Court:
- 12,400-ton threshold for an environmental demonstration in the beneficial use definition; and
- Different requirements for “piles” of coal ash located on-site of a utility and those that are located off-site but destined for beneficial use
EPA has held further technical discussions with a broad array of stakeholders and has decided to defer finalizing the rule to gather additional information and data, including:
- Information on how coal ash is beneficially used to help the Agency distinguish among the different types of beneficial use applications
- Information on the management of coal ash at each point in its distribution system
- Information on federal, state, and local program provisions and regulations related to beneficial use and piles of coal ash
EPA will use this new information to help inform the reconsideration of the beneficial use definition and provisions for piles of coal ash. There will be a 60-day comment period following Federal Register publication.
All comments on the notice should be submitted by 60 days from publication and should be identified by Docket ID No. EPA-HQ-OLEM-2020-0463.
For more information on coal ash and to read a pre-publication version of the notice, click here.
GAO Report on EPA’ Enforcement Activities
On December 9, 2020, GAO released a report titled ENVIRONMENTAL PROTECTION: Action Needed to Ensure EPA’s Enforcement and Compliance Activities Support Its Strategic Goals. Excerpts from the report can be found below.
“…[i]n partnership with states, EPA oversees about 1.2 million regulated entities’ (e.g., industrial facilities and local governments) compliance with federal environmental laws and regulations, including those governing air, water, and hazardous waste. OECA conducts much of this oversight through EPA’s 10 regional offices and a range of enforcement and compliance activities. OECA selects national initiatives to focus its resources on advancing EPA’s strategic plan.”
“…GAO was asked to review EPA’s enforcement efforts. This report examines how (1) EPA’s enforcement and compliance priorities have changed since 2015 and the extent to which EPA implements them, (2) EPA’s coordination with states to enforce and ensure compliance with environmental laws has changed since it shifted priorities, and (3) EPA has assessed whether its activities to enforce and ensure compliance with these laws meet its objectives. GAO reviewed EPA documents and interviewed officials from EPA and 10 states with a high number of enforcement cases.”
“…GAO recommends that EPA (1) communicate final guidance for national initiatives to all states before they go into effect, (2) incorporate lessons learned when coordinating with states on future initiatives, and (3) document assessment of regional enforcement and compliance activities. EPA agreed with GAO’s recommendations.”
A copy of the full report can be found here.
Criminal Negligence Standard for State Clean Water Act 402 and 404 Programs
Last week, EPA Administrator Andrew Wheeler signed a proposed rule that is intended to support state NPDES programs and would confirm that EPA can approve state or tribal programs that allow for prosecution based on any criminal negligence standard—including gross negligence, recklessness negligence, and simple negligence. The agency believes that this authority already exists under its current regulations but is proposing modifications to make this interpretation of the statute more clear. EPA is accepting comment on this proposal for 30 days after publication in the Federal Register. A copy of the prepublication version of the rule can be found here.
New Funding Opportunity from NFWF: Five Star and Urban Waters Restoration Grant Program
The National Fish and Wildlife Foundation (NFWF) and the Wildlife Habitat Council (WHC), in cooperation with the U.S. Environmental Protection Agency (EPA), USDA Forest Service (USFS), U.S. Fish and Wildlife Service (USFWS), FedEx, Southern Company and BNSF Railway are soliciting proposals for the Five Star and Urban Waters Restoration grant program. Local water quality, water quality monitoring, and source water protection plans are specifically mentioned, among other activities and priorities relevant to source water protection.
Proposals are due on January 28, 2021 by 11:59 PM Eastern Time. Eligible applicants include non-profit 501(c) organizations, state government agencies, local governments, municipal governments, Indian tribes and educational institutions. Grant program priorities include:
- On-the-Ground Restoration
- Environmental Outreach, Education & Training
- Community Partnerships
- Measurable Results
Approximately $1,500,000 is available nationwide for projects meeting program priorities. There is one round of full proposals annually for this program. Awards range from $20,000 to $50,000 with an average size of $35,000 and 40-50 grants awarded per year. Grants should span 12 to 18 months with a start date in late summer/early fall 2021. More details can be found here.
USDA’s NRCS to Host Listening Session on Water in the West
On November 5, 2020, USDA’s National Resources Conservation Service (NRCS) announced it had selected 31 priority areas to receive $13 million in Environmental Quality Incentives Program (EQIP) funding as part of the WaterSMART Initiative (WSI). NRCS is now seeking public input about water quantity in the west related to existing NRCS programs. Acting NRCS Chief Kevin Norton will host a virtual, open public listening session Thursday, December 17 at 10:00 AM Eastern. If additional time is deemed necessary to hear all input, a second session will be held Friday, December 18 at 10:00 AM Eastern. If someone does not consent to the recording of the virtual public listening session, they should not attend.
The virtual listening session will allow stakeholders to provide feedback on the following questions:
- For agricultural producers: What is the most pressing water-related issue that may constrain or currently constrains your operations?
- For partners and organizations: What are the most pressing water-related needs in the agricultural community you assist?
- For producers and organizations: What is the most pressing water-related issue that NRCS can address through a technical or financial assistance or through facilitating collaboration?
- How can NRCS best coordinate with other federal, state, and local efforts to address water-related issues?
- How can State Technical Committees assist in addressing your most pressing water-related issues?
- What additional issues do you confront that NRCS should have awareness of?
NRCS will gather input regarding the challenges, needed breakthroughs, and priorities through this virtual listening session and through submission of comments either by e-mail or mail delivery. NRCS will then consider this information in its evaluation of existing programs and efforts.
For more information on attending the event and providing feedback, please see instructions in the Federal Register Notice. Feedback may also be provided in writing via the Federal Register Notice before January 19, 2021.
International Standardization Organization Updating Select Standards on Water Reuse and Water Quality
The International Standardization Organization (ISO), an independent, non-governmental international organization with a membership of 165 national standards bodies, is updating its multi-part series, Guidelines for Treated Wastewater Use for Irrigation Projects.
“Treating wastewater to make it available for other uses such as irrigation is a powerful solution to water scarcity, yet it can pose risks to health and the environment if water quality and methods of treatment are not appropriate. ISO has a series of standards to facilitate this safely and effectively, and some have just been updated to be even more useful in today’s environment.
ISO 16075-1, Guidelines for treated wastewater use for irrigation projects – Part 1: The basis of a reuse project for irrigation, and ISO 16075-2, Guidelines for treated wastewater use for irrigation projects – Part 2: Development of the project, can help maximize the benefits and reduce any related risks incurred in agricultural irrigation systems. These guidelines outline the factors to be taken into account in such projects, namely water quality, soil and climate, the effects these can have on water quality, and ways of improving it. Updates to these standards include additional information such as that related to public and private garden irrigation and further examples of how to improve quality.
The standards are joined by others in the series, also being updated, which include:
- ISO 16075-3, Guidelines for treated wastewater use for irrigation projects – Part 3: Components of a reuse project for irrigation
- ISO 16075-4, Guidelines for treated wastewater use for irrigation projects – Part 4: Monitoring
The revised versions of these are due to be published in 2021.
ISO/TC 282/SC 1 is a subcommittee of ISO/TC 282, Water reuse, which has 22 published standards and a further 19 in development, covering all aspects of water reuse including urban and industrial use, biopharma, and the risk and performance of water reuse systems.” Learn more here.
2021 ACWA Mid-Year Meeting Will Be Virtual
Due to the continuing pandemic, the Association has made the decision to cancel the live portion of the 2021 Mid-Year Meeting. The 2021 Mid-Year Meeting will, once again, be held virtually and with no registration fee. Please mark your calendars for the afternoons of March 17-18, 2021. Additional details on the agenda will be coming soon!
Meetings and Webinars
EPA Virtual Roundtable: EPA’s Integrated Planning Virtual Roundtable on January 13, 2021
Date: January 13, 2021 | 11:30 AM-2:30 PM Eastern Time
Registration for States/EPA: Click here
This January, EPA will be hosting a virtual roundtable on Integrated Planning with state permitting authorities to give an update on EPA’s Integrated Planning efforts, explain technical assistance opportunities, and provide an opportunity for peer-to-peer exchange among states and EPA. The agenda for the roundtable includes the following:
- Update from EPA
- State experiences with incorporating a municipality’s integrated stormwater and wastewater plan in NPDES permits:
- Shelly Shores-Miller from the Kansas Department of Health and Environment
- Michael Abbott from the Missouri Department of Natural Resources
- Adam Eller from the Virginia Department of Environmental Quality
- Small-group breakout sessions to answer questions and discuss ideas for making it easier to review and incorporate integrated plan elements in NPDES permits or other Clean Water Act obligations
Environmental Analyst II (Water Resource Protection) at NEIWPCC
Location: Lowell, MA
Closing Date: January 4, 2021
NEIWPCC is a regional commission that helps the states of the Northeast preserve and advance water quality. They engage and convene water quality professionals and other interested parties from New England and New York to collaborate on water, wastewater, and environmental science challenges across the regions, ecosystems, and areas of expertise.
This person will assist the Director of Water Resource Protection Programs with various program issues, activities, and grants related to source water protection, emerging contaminants, and non-point source pollution. They will oversee NEIWPCC staff working in the New York Source Water Assessment and Protection Program.