On September 12, with exactly three weeks until the U.S. Supreme Court hears oral argument in the Sackett v. EPA case, EPA sent the latest iteration of a final rule to define “Waters of the U.S.” (WOTUS) to the Office of Management and Budget for interagency review. While the Court may not issue an opinion
The Tide
Short alerts designed to keep legal and water sector professionals up-to-date on important developments
First Major CERCLA Move for PFAS
By Anna Wildeman & Dave Ross on
Posted in The Tide
Today, the U.S. Environmental Protection Agency (EPA) announced that Administrator Regan signed a proposed rule to designate two of the most widely studied per- and polyfluoroalkyl substances (PFAS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The proposed designation for PFOA and PFOS, if and when finalized, would provide EPA…
401 Certification Proposal Hits the Street
By Anna Wildeman on
Posted in The Tide
EPA released a pre-publication version of its proposal to re-write the Clean Water Act 401 Certification Rule. The proposed re-write comes after the Northern District of California vacated EPA’s 2020 Certification Rule, which the U.S. Supreme Court later reinstated. The proposal also includes conforming amendments to EPA’s certification regulations for the Section 402 NPDES…
EPA Sets Screening Levels for Five PFAS Compounds
By William Droze on
Posted in The Tide
The U.S. Environmental Protection Agency (EPA) this week added five PFAS chemicals for a total of six PFAS chemicals to a list of risk-based values. EPA uses these values to determine if response or remediation activities are needed. The five PFAS additions include: hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA — sometimes referred…
First Circuit Reverses Its Stance on the Diligent Prosecution Bar
By Houston Shaner, Anna Wildeman & Dave Ross on
Posted in The Tide
On April 28, the U.S. Court of Appeals for the First Circuit, sitting en banc, overturned its own 30-year-old precedent on the Clean Water Act (CWA), North & South Rivers Watershed Ass’n v. Town of Scituate, 949 F.2d 552 (1st Cir. 1991). Under Town of Scituate, “diligent prosecution” of a federal administrative…
Supreme Court Re-Instates the Clean Water Act Section 401 Certification Rule
By Chuck Sensiba, Morgan Gerard & Misha Tseytlin on
Posted in The Tide
Today, in a 5-4 decision, the Supreme Court re-instated the U.S. Environmental Protection Agency’s (EPA’s) 2020 Clean Water Act (CWA) section 401 rule (Certification Rule). The Court stayed a decision by the U.S. District Court for the Northern District of California, which had vacated and remanded the Certification Rule back to EPA without first…
Draft 401 Certification Rule Proposal Sent to OMB
By Anna Wildeman & Dave Ross on
Posted in The Tide
On March 25, EPA sent a proposed Clean Water Act Section 401 Water Quality Certification rule to the Office of Management and Budget (OMB) for interagency review. Once cleared by OMB, the proposal will be published in the Federal Register for public review and comment. According to the OMB dashboard, EPA considers this proposed…
EPA Budget Includes CCS Injection Program Investment
By Anna Wildeman & Dave Ross on
Posted in The Tide
EPA’s budget, approved by Congress last week, increases investment in the agency’s Safe Drinking Water Act Underground Injection Control (UIC) program. A joint statement accompanying the budget specifies that $5 million is available for EPA to develop expertise and capacity in the UIC Class VI well program, and these dollars should be used to process…
EPA Issues Guidance for Use of Infrastructure Dollars
By Anna Wildeman & Dave Ross on
Posted in The Tide
EPA’s Office of Water recently issued guidance on the Implementation of the Clean Water and Drinking Water State Revolving Loan Fund Provisions of the Bipartisan Infrastructure Law. The memorandum itself is eight pages long and covers a range of issues, including reiterating the inherent flexibility in state revolving fund programs, which allows states to prioritize the use of federal funds based on local water needs. The guidance also encourages agencies to prioritize increasing investment in disadvantaged communities, while using the funding to address emerging contaminants, replace lead lines, and improve the climate resilience of water infrastructure. Additionally, the guidance promotes investment in America’s water workforce — a frequently overlooked priority initiated in the prior administration that is designed to shore up an essential but aging water sector workforce.
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EPA IRIS Program Releases Draft Review of PFHxA (Another PFAS)
EPA’s Integrated Risk Information System (IRIS) program released a draft toxicological review of perfluorohexanoic acid (PFHxA) today, signaling another step in the agency’s ongoing research and regulatory initiatives focused on per- and polyfluoroalkyl substances (PFAS). This particular PFAS will be interesting to monitor because it is a breakdown product of other PFAS that may enter…