The U.S. Supreme Court just issued its long-awaited Sackett decision in which it significantly narrowed the scope of federal jurisdiction over “waters of the U.S.” under the Clean Water Act. Written by Justice Alito (with four other justices joining him), the decision contained three separate concurring opinions, with its operative holding as follows:

  1. The CWA extends to only those “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right,” so they are “indistinguishable” from those waters.
  2. This requires the party asserting jurisdiction over adjacent wetlands to establish “first, that the adjacent [body of water constitutes] … ‘water[s] of the United States,’ (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”

The court squarely rejected EPA’s :significant nexus” approach as inconsistent with both the text and structure of the statute. Significantly, the decision is 9-0 on the absence of EPA jurisdiction over the Sackett’s property, but 5-2-4-3 on the reasoning for why EPA lacked jurisdiction.

EPA has proposed to establish “baseline” water quality standards that would apply to all Indian reservation waters where the tribe has not received “treatment as a state” (TAS) authority, the state does not have authority, and the federal government has not already promulgated water quality standards. Under the proposal, tribes will have a limited opportunity to request that certain waters be excluded from the federal baseline standards, but that decision will ultimately be made by the EPA regional administrator. If a tribe receives TAS, promulgates its own water quality standards, and obtains EPA approval of those standards, the federal baseline standards would no longer apply.

This is EPA’s second recent proposed rule aimed at tribal interests and water quality. The first proposal would require states to protect tribal reserved rights in establishing state water quality standards. EPA’s baseline proposal explains that there are 574 federally recognized tribes, but only 84 have received TAS for the water quality standards program, and only 47 of those have submitted Clean Water Act (CWA)-compliant water quality standards for EPA approval.

As a refresher, the CWA directs states to establish water quality standards. Federally recognized tribes are also authorized to pursue TAS authority to administer CWA programs, including establishing water quality standards, issuing Section 401 certifications, and issuing and enforcing Section 402 NPDES permits. For this reason, many CWA regulations direct “states and authorized tribes” to take certain actions — authorized tribes are those with TAS.

Water quality standards are made up of three components: designated uses, criteria, and antidegradation provisions. Designated uses identify what the water feature is used for; examples include a cold water fishery, agricultural use, primary and secondary recreation, or as a drinking water source. The criteria are the standards that the water feature must achieve in order to protect the designated use; criteria can be numeric (maximum numeric limits) or narrative (description of acceptable conditions). Antidegradation requirements are used to prevent high-quality waters from becoming degraded through new uses or new discharges. When states and authorized tribes set water quality standards, it is typically a lengthy process that includes significant public engagement, legislation, rulemaking, and then implementation plans to ensure activities authorized in the jurisdiction do not impair water quality standards. States and authorized tribes are also responsible for evaluating the quality of their waters on a regular basis, determining if waters are “impaired” and if they require the development of a total maximum daily load (TMDL) to restore the water quality to meet applicable standards.

It is within this otherwise relatively local, resource-intensive process that EPA has proposed to establish uniform water quality standards that would be applicable to most Indian reservation waters across the nation. Importantly, these would be federal water quality standards that are administered by EPA, not tribal water quality standards. This means that EPA will evaluate water quality on tribal lands, identify impairments, develop implementation plans and TMDLs for impaired waters, and presumably implement those plans and TMDLs on tribal land. At a minimum, this proposal is likely to raise questions about EPA’s authority to establish and administer uniform national water quality standards, not to mention the wisdom of the federal government doing so on sovereign tribal land.

Setting aside those big picture questions, the proposal raises a host of other, more nuanced questions for practitioners in the water quality and CWA world, questions that are unlikely to be answered until well after the rule is finalized, and more likely months, if not years, into implementation.

EPA proposes to establish three designated uses that would “apply to all Indian reservation waters,” except as otherwise specified: aquatic life, primary contact recreation, and cultural and traditional uses. The proposal also includes nationally applicable narrative water quality criteria intended to protect those uniform designated uses.

For implementation of the narrative criteria, the proposal includes four options for “binding numeric translations.” In and of themselves, the four options are curious and do not seem to be translations in the traditional sense. For example, one translation option would allow EPA to replace its national narrative criteria with any applicable EPA CWA Section 304(a) recommended criteria. This translation option seems like a streamlined way for EPA to implement and enforce (as law) its 304(a) recommendations on reservations and in upstream state and tribal waters. Another translation option would allow EPA’s national narrative criteria to be swapped out for a water quality standard developed by a tribe that does not have TAS and for which no CWA procedures were followed. This particular option seems less like a translation and more like a workaround to avoid the burden of obtaining TAS and establishing CWA-compliant water quality standards. As a last resort, if no other binding translation option is available, EPA proposes to “rely on existing CWA implementation provisions.” This begs (at least) two important questions, including (1) why are existing CWA implementation provisions the option of last resort; and (2) are existing CWA implementation provisions no longer appropriate or sufficient for translating narrative standards?

The proposal also includes new regulations on mixing zones; new federal administrative procedures for an EPA regional administrator to modify a designated use or establish a variance, and for a tribe to request changes in designated uses and variances; implementation procedures, including an explanation of EPA’s oversight authorities if an upstream state issues a NPDES permit that does not protect downstream federal baseline standards; and an explanation of how the baseline standards must be considered in the CWA Section 404 permit process and the CWA Section 401 certification process.

EPA proposes to conclude that the establishment of federal baseline water quality standards on Indian reservation waters would have no direct economic impacts and would have no federalism implications.

The public comment period on the proposal closes on August 3, 2023.

With little fanfare, EPA has finally proposed to approve Louisiana’s Class VI underground injection control (UIC) well program. The proposal to approve Louisiana’s program comes nearly two years after the state submitted its package for consideration.

The pre-publication version of EPA’s proposal walks through the agency’s process and substantive consideration of Louisiana’s statutes, regulations, and enforcement authority. EPA proposes to conclude that the state program “meets all applicable requirements for approval under [Safe Drinking Water Act] section 1422 and the State is capable of administering a UIC Class VI program in a manner consistent with the terms and purposes of SDWA and all applicable UIC regulations.”

EPA also explains that it compared the state’s commitments on environmental justice (EJ) to EPA’s December 9, 2022 memorandum to state governors, which set out recommendations for states to incorporate EJ into Class VI programs. Though EPA concludes that Louisiana’s Class VI program “addressed all EJ elements that were discussed in the December 9, 2022 letter,” EPA is careful not to suggest that the letter establishes any new requirements for state UIC programs. Indeed, EPA references several times “LDNR’s commitments” to EJ and equity in the state-run UIC program, underscoring that these commitments are policy choices made by the state, not mandates from the federal government. This messaging may be welcomed by other states pursuing Class VI primacy, including those that have not yet memorialized EJ concepts into state law or regulation.

The proposed approval will be available for public comment for 60 days after publication in the Federal Register. A public hearing is scheduled for June 15 at the Louisiana Department of Natural Resources in Baton Rouge. EPA encourages the public to pre-register to speak at the hearing by contacting Lisa Pham at 214-664-8326 or pham.lisa@epa.gov.

After the U.S. District Court for the District of North Dakota’s April 12 ruling, the majority of the United States can no longer implement or enforce the Biden administration’s definition of waters of the United States (WOTUS). This comes as a major blow to the administration that has repeatedly touted the so-called “durability” of its 2023 WOTUS definition.

The North Dakota decision enjoining rule in 24 states follows a Texas District Court decision enjoining the rule in Texas and Idaho. This means that the majority of states must now implement the pre-2015 framework to determine if waters are federally regulated.

The pre-2015 framework also remains in the crosshairs as the U.S. Supreme Court prepares its decision in the Sackett case.

On March 13, the Environmental Protection Agency (EPA) took the long-anticipated step of proposing maximum contaminant level goals (MCLGs), as well as individual maximum contaminant levels (MCLs), for six PFAS compounds under the Safe Drinking Water Act. PFAS are a large family of synthetic chemicals that have been in use since the 1940s. Many PFAS have unique physical and chemical properties that make them highly stable and resistant to degradation in the environment, which is why they are sometimes referred to as “forever chemicals.”

An MCLG is the maximum level of a contaminant in drinking water at which no known or anticipated adverse effect on the health of persons would occur, allowing an adequate margin of safety. An MCL is the maximum level allowed of a contaminant or a group of contaminants (i.e., mixture of contaminants) in water that is delivered to any user of a public water system (PWS). The SDWA generally requires EPA to set an MCL “as close as feasible to” the MCLG.

For PFOA and PFOS, EPA is proposing to set the MCLGs at zero and the MCLs at 4.0 ng/L (which is also the lowest level that these compounds can be quantified using currently available analytical methods). For PFHxS, PFNA, PFBS, and Gen X, EPA is proposing to set both the MCLGs and MCLs at a Hazard Index (HI) of 1.0. According to EPA, an HI is a commonly used risk management approach for mixtures of chemicals in which a ratio called a hazard quotient (HQ) is calculated for each chemical by dividing an exposure metric (here, the measured level of each of the four PFAS in drinking water) by a health reference value for each chemical. The individual ratios (HQs) are then summed across the mixture to yield the HI. If the resulting HI is greater than one (1.0), then the exposure metric is greater than the health metric, and potential risk is indicated.

Water systems with PFAS levels that exceed the proposed MCLs (once finalized) would need to take action to provide safe and reliable drinking water (e.g., installing treatment or switching to an uncontaminated water source). Activated carbon, anion exchange (AIX), and high-pressure membrane technologies have all been demonstrated to remove PFAS from drinking water systems, but often at significant capital cost and ongoing operational expense. Given the anticipated impact of the proposed MCLs on public water systems, EPA is proposing to delay the compliance date for three years, following publication of the final rule.

The proposed MCLGs and MCLs are lower in certain respects and higher in others when compared to EPA’s 2022 health advisories for the same chemicals, signaling the potential for a healthy debate of the underlying science. Further, a number of states have adopted their own state-based MCLs, which now will need to be reconsidered if they are less stringent than EPA’s proposed levels.

A 60-day public comment period will begin after EPA’s proposal is published in the Federal Register. In addition, EPA has scheduled a virtual public hearing on the proposal for May 4. EPA is scheduled to finalize the new MCLGs and MCLs by September 3, 2024.

Separately, EPA has proposed to designate PFOA and PFOS as hazardous substances under CERCLA. The comment period on that proposal closed last fall, and EPA is scheduled to finalize the designations in August 2023.

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.

Dive in and subscribe

Receive notifications of new content direct to your inbox
Subscribe by email