President Biden recently signed the Flood Level, Observation, Operations, and Decision Support Act (FLOODS Act), codifying an important leadership and management tool that helped modernize federal water policy in the United States. In 2018 a “federal water sub-cabinet” was informally established to coordinate water policy across the major federal agencies responsible for developing, managing, funding, regulating, and researching water resources in the United States. The original members included senior water officials within the Department of the Interior, Environmental Protection Agency, Department of Agriculture, Army Corps of Engineers, Department of Energy, and National Oceanic and Atmospheric Administration. The subcabinet was formally established in October 2020 under Executive Order 13956, “Modernizing America’s Water Resource Management and Water Infrastructure.”

Section 13 of the FLOODS Act enshrines the same basic structure and policy focus of Executive Order 13956, while changing the name of the water subcabinet to the “Interagency Committee on Water Management and Infrastructure” or the “Water Policy Committee” for brevity. The Water Policy Committee will continue to be co-chaired by the Department of the Interior and the Environmental Protection Agency, helping to ensure that water quality and water resource management remain on equal footing as major decisions regarding the future of water in this country are debated and decided.

The focus of the Water Policy Committee will include several key areas: water sector workforce development, data management and modeling, water forecasting, water reuse and desalination, drinking water and wastewater management, flood control, nutrient management, source water protection, water supply, drought resiliency, and the promotion of restoration activities, among other topics. The original goal of the federal water subcabinet was to help ensure that America plans for the development and operation of a reliable supply of clean water for generations to come, and the FLOODS Act will help ensure the realization of that goal.

Better late than never, but on January 4, EPA published its Fall 2022 Unified Regulatory Agenda. The Reg Agenda includes a few new rulemaking initiatives and a number of schedule changes that were largely expected since EPA has been running a few months behind on most of their major rulemakings (e.g., WOTUS, 401 Water Quality Certification, Steam Electric ELG, Lead and Copper Rule Improvements).

One rather unexpected item on the Reg Agenda is a direct-final rule EPA is planning to issue in January 2023 that would retroactively extend a key deadline from the 2020 Steam Electric ELG Reconsideration Rule. Under the 2020 ELG Rule, coal-fired steam electric units were required to provide initial notification to their regulators by October 13, 2021 if they planned to retire on or before December 31, 2028. Units providing this notification were included in the permanent cessation of coal combustion (PCCC) subcategory and would not need to comply with the stringent new discharge limits in the 2020 ELG Rule. The direct-final rule EPA is planning to issue in January 2023 would retroactively extend that October 13, 2021 deadline to 90 days after Federal Register publication of the direct-final rule, which is likely to fall sometime in March or April 2023.

This direct-final rule will come just as EPA will be publishing a new steam electric ELG proposed rule, which is expected to be significantly more stringent and costly than the 2020 ELG Rule. The agency’s strategy could be to allow stakeholders to see just how stringent and costly their new proposed ELG rule will be and then provide coal-fired units another opportunity, through the direct-final rule PCCC notification extension, to choose retirement over compliance. Such a strategy would encourage more coal units to retire and promote the Biden administration’s climate and carbon goals.

Like any direct-final rule, it will automatically become final and effective if, at the end of the public comment period, the agency has not received any adverse public comments. EPA typically doesn’t pursue a direct-final rule approach for issues that would be very controversial; however, in case the agency does receive adverse public comments, the direct-final rule is typically also published as a proposed rule that can be finalized later, after the agency responds to public comments. In the Reg Agenda, EPA explains that this direct-final rule will be incorporated into its forthcoming steam electric ELG proposal and would be finalized at a later date, if not finalized via the direct-final process.

John Goodin takes a break from his recent retirement to share invaluable insights with Dave and Anna from his 32-year career in EPA’s Office of Water. John talks about the long-running “waters of the United States” rulemaking, provides an insider’s perspective on federal decision-making, and connects his passion for travel with EPA’s mission to restore and protect our nation’s waters.

Continue Reading H2-OWOW! – A Reflective Conversation with John Goodin, Former Director of EPA’s Office of Wetlands, Oceans, and Watersheds

Yesterday, EPA announced a proposed rule that would revise the agency’s regulations to include a requirement that water quality standards protect reserved tribal reserved rights. This proposal is a major milestone for the agency that has tried to incorporate reserved tribal reserved rights into its water quality standards program since at least 2015.

According to the proposal, states and authorized tribes would be required to (1) designate uses of waterbodies that expressly incorporate protection of tribal reserved rights, and (2) establish water quality criteria to protect those rights, and/or (3) use antidegradation requirements to protect water quality to the level deemed necessary to protect tribal reserved rights.

The proposal would specifically require water quality standards promulgated by states, tribes, or EPA “to protect the exercise of the tribal reserved rights unsuppressed by water quality or availability of the aquatic or aquatic-dependent resource” to the extent supported by available information. In other words, if water quality or other circumstances have resulted in fewer fish being available in modern times, and therefore less consumption of those fish by comparison to what may have been consumed decades or generations ago (suppressed consumption), the water quality standards must be set to protect that historic unsuppressed fish consumption rate. According to the proposal, the “heritage rate” of fish consumption, which is “the amount of fish consumed prior to non-indigenous or modern sources of contamination and interference with the natural lifecycle of fish, in addition to changes in human society” can be reflective of a current unsuppressed consumption rate. Previous EPA guidance cited in the proposal explains that the heritage rate of consumption “is generally extrapolated or reconstructed from information available in anthropological or historical literature” and that “[i]n many cases, heritage rates may be the only practical way to estimate unsuppressed rates… .” The proposal does explain that the unsuppressed analysis “should balance heritage use of a resource with what is currently reasonably achievable for a particular waterbody,” but also states that it should consider plans for future restoration activities that could improve current conditions. If past is prologue, there will certainly be disagreements among states and stakeholders about what may be reasonable and achievable currently and in the future.

The proposal identifies some challenges that may arise in implementing the proposed rule, including that some areas may have multiple right holders that require different standards of water quality protection, that some tribal reserved rights for a particular water resource “may span across multiple states,” and that there may be missing or conflicting information or “a difference of opinion” between a state and one or more tribes about the level of water quality necessary to protect a reserved right. The proposal indicates that strong coordination across jurisdictions and agencies may help mitigate some challenges. The proposal also explains that, in the case of a difference of opinion about the required level of water quality necessary to protect a reserved right, “EPA will take action based on the best available information in the same way that EPA currently makes [water quality standards] decisions in these circumstances in other contexts, e.g., determining whether criteria are scientifically defensible in situations where there is conflicting science, there are gaps in the science, and/or there are different conclusions among stakeholders.” There is likely to be much interest in — and potential litigation over — the dynamic between existing requirements for scientific rigor in the water quality standards program, the potential for standards to be developed under this proposal based on reconstructed or extrapolated historical information, and EPA’s role in mediating disputes between states and tribes.

Notably, in its proposal, EPA acknowledges that its existing regulations do not explicitly require consideration of tribal rights in setting water quality standards. The proposal also acknowledges that the agency previously attempted to require such consideration for individual state water quality standards packages (i.e., Maine, Idaho, Washington), effectively attempting to broaden the agency’s regulatory authority through individual decisions and guidance. For example, EPA recently finalized a federal regulation that displaces Washington state’s human health criteria water quality standards, which EPA originally disapproved in part because in EPA’s view, those standards did not adequately consider tribal reserved rights. It is interesting that EPA would move forward with a federal standards regulation in Washington, which relies on tribal considerations prior to promulgating regulations that specifically require consideration of tribal reserved rights. The legal defensibility of the Washington decision would presumably be enhanced following a formal notice and comment rulemaking expressly codifying tribal reserved rights as a consideration in developing state water quality standards.

It is also interesting that EPA has concluded that under Executive Order 13132, the proposal “does not have federalism implications” and that it will “not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various level of government.” EPA’s ability to override state standards based on tribal reserved rights raises what seem like quintessential federalism issues, and EPA’s proposed conclusion under the executive order is likely to be challenged by states in the forthcoming public comment period.

History has shown that implementation of the Clean Water Act is highly dynamic, and its regulatory programs adapt to modern issues and trends. EPA’s proposal yesterday is a major development in Clean Water Act law and policy and raises an interesting set of issues that a broad range of stakeholders will want to closely follow.

The proposal will be open for public comment for 90 days once it is published in the Federal Register.

On October 28, the EPA published the Final Fifth Drinking Water Contaminant Candidate List. Under the Safe Drinking Water Act (SDWA), the EPA is required to publish a new Contaminant Candidate List (CCL) every five years. The CCL contains a list of contaminants that are currently not subject to any national primary drinking water regulations but are anticipated to occur in public water systems and may require regulation.

The CCL 5 lists 66 chemicals, three chemical groups, and 12 microbial contaminants. The list includes some of EPA’s emerging contaminants of concern, such as 1,4-Dioxane (which was recently the subject of an EPA risk evaluation under the Toxic Substance Control Act (TSCA)) and 1,2,3-Trichloropropane (for which EPA has already set a screening level in tap water).

The CCL 5 also includes per-and polyfluoroalkyl substances (PFAS) as a chemical group. The EPA noted that because there may be over 4,000 different types of PFAS chemicals, listing and considering PFAS as a class, rather than individually, will ease the administrative burden of gathering data, analyzing, and evaluating these chemicals. Notably, the two most infamous types of PFAS — PFOA and PFOS — are specifically excluded from the CCL 5 since they are already subject to an EPA regulatory action. Proposed national drinking water standards for PFOA and PFOS are currently pending interagency review with the Office of Management and Budget.

The CCL 5’s definition of PFAS appears to be broader than prior definitions that the EPA has recently used. For example, the CCL 5’s definition of PFAS includes more chemical structures than the definition of PFAS contained within a recently proposed rule under TSCA, which only includes around 1,364 out of the 4,000 different types of PFAS. EPA has indicated that it will eventually provide a list of the PFAS that meet the CCL 5 definition on its CompTox Chemicals Dashboard.

Although PFAS have been listed on the CCL 5 as a class, that does not necessarily mean that EPA will decide to regulate PFAS as a class under the SDWA. This is just the first step of a longer screening and evaluation process.

The New Jersey Department of Environmental Protection posted interim soil remediation standards for several per- and polyfluoroalkyl substances (collectively PFAS) to include perfluoro nonanoic acid (PFNA), perfluorooctanoic acid (PFOA), perfluoro octane sulfonate (PFOS), and hexafluoropropylene oxide dimer acid and its ammonium salt (GenX). Posted in the October 17 NJ Register, the interim standards pertain to the direct contact and migration to groundwater exposure paths, and apply immediately.

Given there are thousands of PFAS compounds, additional interim and final standards for various exposure routes are anticipated for various media — soil, groundwater, surface water, and sediment.

HDR Utility Services Director Trent Stober joins Dave and Anna to close out their PFAS miniseries, focusing on the real-world application of regulatory developments in the water sector. Trent provides perspective on how engineering consultants advise their water and wastewater utility customers on risk management, integrated planning, and other response strategies to the developing PFAS regulatory framework.

Continue Reading PFAS in Focus: Forever-Engineering With Trent Stober, HDR

Dave Ross and Anna Wildeman provide high-level reactions to the Supreme Court’s oral arguments in the Sackett v. EPA case, the latest legal battle in a long-running dispute over the meaning of the phrase “waters of the United States” under the Clean Water Act. They discuss the Court’s surprising focus on a little-known parenthetical in the section 404 program, EPA’s potential reactions to the arguments, and whether anyone can reasonably predict the outcome of the case in what may be the most closely watched environmental decision of the current term.

Continue Reading Reflections on Sackett

Anna and Dave continue their Missouri Water Seminar PFAS miniseries with Assistant Director of Engineering-Environmental Compliance Jay Hoskins of the Metropolitan St. Louis Sewer District. Jay, Anna, and Dave discuss integrated planning, source control, rate setting, and risk communication in a rapidly changing regulatory environment.

Continue Reading PFAS in Focus: Wastewater Utility Perspectives From Jay Hoskins, Metropolitan St. Louis Sewer District

The Biden administration has enormous climate and carbon management goals, which rightfully include the geologic sequestration of carbon dioxide as a core part of its climate adaptation strategy. The administration, to its credit, has worked with Congress to provide tax credits and billions of dollars of new funding for programs targeting the transportation and sequestration of carbon, but without equal commitment to the regulatory side of the house, the administration’s ambitious goals are at risk.

The U.S. Environmental Protection Agency (EPA) has direct regulatory authority over carbon sequestration projects through its administration and oversight of the Underground Injection Control (UIC) program. The UIC program was created by Congress through the Safe Drinking Water Act (SDWA) to prevent injection wells from contaminating underground drinking water sources. EPA has established, by federal rule, the minimum requirements for six classes of UIC wells that the agency administers unless states, tribes, or territories obtain primary enforcement authority (primacy). EPA’s website helpfully explains that the UIC program requirements “are designed to be adopted by states, territories, and tribes.”

EPA established the Class VI program for carbon dioxide geologic sequestration wells in 2010. At that time, EPA was anticipating that several states would seek primacy for the new Class VI program right away and delayed the effective date of the new federal regulation to provide states time to apply and obtain authorization before EPA became the permitting authority for the new program. EPA therefore delayed the effective date by 270 days to provide states “a reasonable amount of time to develop and submit their application to EPA for approval.”[1] In the final rule, EPA committed to help states obtain primacy within that 270-day window by developing implementation materials, providing training, assisting states with developing regulations that meet the federal minimum requirements, and by using “an expedited process for approving primacy.”[2]

Under the 2010 rule, states were authorized to seek primacy for only the Class VI well program, which marked a shift in EPA’s approach for the UIC program. As the rule preamble explains: “EPA believes that this shift in its longstanding policy of discouraging ‘partial’ or ‘independent’ primacy is warranted to encourage States to seek primacy for Class VI wells and allow States to address the unique challenges that would otherwise be barriers to comprehensive and seamless management of [geologic sequestration] projects.”[3] EPA noted that “[a]llowing States to apply only for Class VI primacy will also shorten the primacy approval process.”[4]

On June 21, 2013, North Dakota became the first state to seek Class VI primacy. It took less than three months for EPA to determine that the state’s package was complete, but then it took nearly four years for EPA to publish a proposal in the Federal Register to approve North Dakota’s primacy. It was another 11 months before EPA published a final rule approving North Dakota’s Class VI UIC primacy. All in, this EPA review and approval process took nearly 1,800 days, more than six and a half times as long as EPA stated would be reasonable for a state to develop a Class VI primacy application and obtain EPA approval. This incredible delay occurred despite the agency’s recognition that carbon capture would be critical to the success of its climate priorities.

Less than two years later, Wyoming submitted its Class VI primacy package for EPA approval. Again, it took EPA less than three months to determine that the state’s package was complete, but that is where the processes diverge. It took EPA only six months after proposal to publish a final rule approving Wyoming’s Class VI UIC primacy. This approval process took about 250 days, which is in line with EPA’s original 270-day estimate for how long it thought the process should take for states to apply for and obtain Class VI primacy.

A third state, Louisiana, is now in the process of seeking Class VI primacy. At the time of publication, it has already been approximately 500 days since Louisiana submitted its application to EPA, and EPA has yet to publish a completeness determination or a proposal for decision. At this rate, the Louisiana process is looking much more like North Dakota than Wyoming, and several other states preparing their primacy applications are surely taking note.[5]

The SDWA and EPA’s federal UIC program regulations provide the agency with mandatory timelines to act on state primacy applications. Specifically, 40 C.F.R. § 145.22 provides that: “Within 30 days of receipt by EPA of a state program submission, EPA will notify the state whether its submission is complete.” Additionally, “[a]fter determining that a State’s submission for UIC program approval is complete the administrator shall issue public notice of the submission in the Federal Register … .”[6] EPA’s determination of completeness then triggers the SDWA statutory timeline for EPA to conduct a formal review of the primacy application. Accordingly, EPA’s regulations provide: “Within 90 days of the receipt of a complete submission …, the Administrator shall by rule either fully approve, disapprove, or approve in part the State’s UIC program taking into account any comments submitted.”[7] These timelines for EPA action are reiterated in Appendix A of EPA’s UIC Program Class VI Primacy Manual for State Directors.

The “completeness determination” process is the Achilles’ heel in federal and state permitting programs. Despite careful thought and planning in the legislative and rulemaking process to encourage, and indeed mandate, efficient government decision-making, when to start the clock is an age-old problem and is frequently used to buy time in an otherwise abbreviated permitting timeframe. Asking for additional information or clarifying questions, while reasonable in certain circumstances, leads to significant delays and permitting or regulatory decision-making backlogs. The Louisiana Class VI program application process, like North Dakota a decade ago, seems caught in this decision-making quagmire, and raises questions for other states to consider as they plan their appropriations, staffing, and other key program implementation strategies that necessarily depend on a predictable federal decision-making process.

EPA would be wise to consider process improvements that help accelerate its state program delegation process, as its limited program staff faces growing demand on their time and resources. With the exception of projects in North Dakota and Wyoming, every carbon sequestration project must obtain UIC approval from EPA. To date, EPA has issued only two Class VI UIC approvals, both for projects in Illinois. There are currently 28 Class VI applications pending before EPA, 15 of which are for projects in Louisiana. The number of Class VI applications pending before EPA has doubled since May 2022, and with the significant federal incentives and the Biden administration’s climate goals, the number of applications is certain to increase in the very near future. The sooner EPA approves Louisiana’s primacy and shifts to assisting Texas, West Virginia, and Arizona with obtaining primacy in a timely manner, the sooner it will realize the climate adaptation and carbon capture potential of the Class VI program.

[1] 75 Fed. Reg. 77230, 77242 (Dec. 10, 2010).

[2] Id.

[3] Id.

[4] Id.

[5] Texas, West Virginia, and Arizona are working toward submitting Class VI primacy packages, but they are still in the “pre-application” process.

[6] 40 C.F.R. § 145.31(b).

[7] Id. § 145.31(e).