News

EPA Request Comments on Sec. 404 & ESA Consultation

EPA will soon be publishing a Federal Register Notice requesting public comment regarding whether Endangered Species Act (ESA) Section 7 Consultation is required when EPA approves a state or tribe’s Clean Water Act Section 404 dredge and fill permit program. Specifically, EPA is seeking comment on whether the Agency should reconsider its current position that consultation under ESA Section 7(a)(2) is not required when the EPA approves a State or Tribe’s request to assume the Section 404 dredged and fill permit program under Section 404(h) of the Clean Water Act (CWA). Comments are due by July 6, 2020.

Draft Recommendations for Numeric Nutrient Criteria for Lakes and Reservoirs Released

This week, EPA released draft recommendations for developing numeric nutrient water quality criteria for lakes and reservoirs for public comment. When finalized, these recommendations will replace EPA’s previously recommended ambient nutrient criteria for lakes and reservoirs that were published in 2000 and 2001.

“When finalized, the Agency’s criteria recommendations will serve as important tools that states and authorized tribes can use to protect public health and the health of pets and aquatic life from certain adverse effects of excess nutrients, including harmful algal blooms. In 2000 and 2001, EPA published recommended numeric nutrient criteria for most lakes and reservoirs. The Clean Water Act (CWA) requires the Agency to periodically revise these recommendations to reflect the latest scientific knowledge. Since 2001, scientific understanding regarding nutrient concentrations’ effects has increased and new data collected from lakes and reservoirs across the U.S. have become available. The draft criteria recommendations represent the latest scientific knowledge of the concentrations of nitrogen and phosphorus that are protective of drinking water sources, recreational uses and aquatic life in lakes and reservoirs. EPA developed national statistical models that provide a flexible tool for deriving numeric nutrient criteria. States and authorized tribes can incorporate local data into the national models to help develop numeric nutrient criteria that are consistent with national relationships while accounting for unique local conditions.”

The recommendations appeared on the Federal Register (here) on May 22. Public comments are due July 21, 2020.

Executive Order on Regulatory Relief to Support Economic Recovery

The President issued a new Executive Order directing agencies to consider deregulatory actions that will spur economic growth.  The Executive Order directs agency heads to meet the “economic emergency” created by the COVID-19 pandemic “by rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.” The Order also instructs agencies to consider making permanent the enforcement actions, such as the OECA COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program memo, they take in response to the pandemic.

Coalition of States Seeks WOTUS Injunction

California, New York and 15 other states are urging a federal district court to issue a preliminary national injunction blocking the implementation of the Navigable Waters Protection Rule (NWPR), warning the injunction is vital to “prevent widespread harm to national water quality.” The coalition argues a preliminary national injunction is necessary because the NWPR effective date is June 22, 2020. This same coalition of states filed suite in early May challenging the legality of the new rule and they say that a nationwide injunction is necessary to avoid significant and imminent harm while they litigate their claims.

EPA to Propose Rule on Guidance Transparency

Summary

This week EPA announced a new rule to “promote transparency through improved agency guidance.” This new rule is intended to increase transparency of EPA’s practices around guidance issuance by:

• Establishing a formal petition process for requests that EPA modify or withdraw a guidance document
• Ensuring guidance documents are developed with appropriate review and are accessible by the public
• Providing for increased public participation in the development of significant guidance documents

Specifically, EPA plans to use an online portal to clearly identify EPA guidance documents for the public, proposing definitions to distinguish “guidance document” from “significant guidance document”, standardize  elements for such documents, develop procedures for the public to request that a guidance document be modified/withdrawn, and establish procedures for the EPA to enable the public to comment on proposed significant guidance documents. The proposed rule will have a 30 day comment period after it is published in the Federal Register. For additional information on the proposed rule, click here.

Further Details on the Proposed Rule

For the purposes of this rule, “guidance document” would mean an Agency statement of general applicability, intended to have future effect on the behavior of regulated parties, that sets forth a policy on a statutory, regulatory, or technical issue, or an interpretation of a statute or regulation. The definition is subject to the following exclusions:

1. Rules promulgated pursuant to notice and comment under 5 U.S.C. 553 or exempt under 5 U.S.C. 553(a)
2. Rules of Agency organization, procedure, or practice
3. Decisions of Agency adjudications under 5 U.S.C. 554, or similar statutory provisions
4. Guidance directed to the EPA not intended to have substantial future effect on the behavior of regulated parties
5. Agency statements of specific applicability such as advisory or legal opinions directed to particular parties, correspondence with individual persons or entities, congressional correspondence
6. Agency statements that do not set forth a policy on a statutory, regulatory, or technical issue or an interpretation of a statute or regulation
7. Grant and contract solicitations and awards

For the purposes of this rule, “significant guidance document” would mean a guidance document determined that may reasonably be anticipated to:

1. Lead to an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities
2. Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency
3. Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs
4. Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles of E.O. 12866.6

The proposed rule will also standardize elements in new guidance. For example, as guidance documents not legally binding, the document must refrain from including mandatory language such as “shall,” “must,” “required” or “requirement,” unless these words are used to describe a statutory or regulatory requirement. This proposed rule would establish a public review and comment opportunity for all significant guidance documents, whether that document is new or a modification or withdrawal of an active guidance document. This would include publication in the Federal Register, a 30 day comment period, public access to those comments, Federal Register publication of the final document or its withdrawal, and publication to responses to major commenters on the guidance.

EPA is also proposing procedures to allow the public to petition EPA for the modification or withdrawal of an active guidance document. The EPA would respond to petitions in a timely manner, but no later than 90 calendar days after receipt of the petition. If the EPA requires more than 90 calendar days, the EPA would inform the petitioner that more time is required and indicate the reason why and provide an estimated decision date.

For more information, click here.

Association Updates

Experts Directory

As per the FY2018-FY2022 ACWA Strategic Plan, over 70 state staff volunteered to be part of an Experts Directory, which is a new ACWA service provided in Member365. These subject matter experts (SMEs) volunteered to make themselves available should their peers in other states have programmatic related questions. This new Directory has been added as a drop down on the Memebr365 dashboard page and is organized by Expert Subject Area. The subject matter areas include 316(b), 401 Certification, 404 Assumption, CAFO/Animal Agriculture, Enforcement and Compliance, Funding, Legal Affairs, Monitoring & Assessment, Nutrients Policy, NPDES Permitting, Nonpoint Source, Oceans and Coastal Issues, Pesticides, Pretreatment, State Implementation of CWA Programs, Steam Electric, Stormwater – Municipal, Stormwater – Industrial, Technology and Innovation, Water Quality Trading, Water Quality Standards, Water Quantity, and Watersheds & TMDLs. If you have programmatic questions, this may be another option to help you find out how other states are addressing the issue. Several volunteers offered to help research a question if they did not have an answer readily available. Beyond answering Member questions, ACWA may also ask the SMEs to identify:

• challenges & barriers to program implementation
• opportunities for state program improvement & enhancement
• state advances and innovations
• needs for training, guidance, tools, and other support materials
• positions the Associations wishes to take on specific issues

If you would like to volunteer as an SME, please contact Sean Rolland. For more details on Member365, please check out our FAQ Page.

No Weekly Wrap the Week of June 25, 2020

ACWA will not produce a Weekly Wrap next week due to the shortened holiday week.

Job Opportunities

Coming Soon…

EPA Webinar: Anaerobic Digestion Project Development Handbook

Date: Wednesday, May 27, 1:00 PM- 2:00 PM Eastern Time

Registration: Participation in the webinar is free and registration is now open. Register here!

The AgSTAR Program is pleased to invite you to participate in a webinar on Wednesday, May 27, 2020 from 1:00 – 2:00 PM Eastern Time. Industry leaders will review the Anaerobic Digestion Project Development Handbook, which outlines necessary development steps and questions industry professionals must address to increase the chances of farm-based digester project success.

The webinar will offer an overview of the handbook, as well as in-depth look at the following chapters and related topics:

• Process Fundamentals & Technical Insights – This segment of the webinar will highlight chapters 1 through 5 of the Handbook, focusing on questions to consider when initially planning a new system.
• Economic and Financial Factors, Business Relationships, Screening and Feasibility Studies, Permitting, Operations, Safety and Maintenance – This segment will cover Chapters 6 through 9 and 11, focusing on the important business aspects of project development.
• Public and Community Outreach – This segment will cover Chapter 10, with discussion on the value the Handbook can bring to communities and farms managing organics.

Bring your own questions to ask during the question-and-answer session. Presenters for the webinar include:

• Nick Elger, U.S. EPA, AgSTAR Program
• Nora Goldstein, Editor, BioCycle
• Keith Henn, Vice President, Tetra Tech
• David Palmer, Senior Energy Project Manager, Tetra Tech
• Dana Kirk, Ph.D., P.E., Manager of the Anaerobic Digester Research and Education Center (ADREC) and Assistant Professor, Michigan State University

Nutrients Policy Committee Webinar: RCPP Case Studies

Date: Tuesday, June 16, 2:00 PM Eastern Time

Registration: Click here

ACWA’s Nutrients Policy Committee will be holding a webinar on the Regional Conservation Partnership Program. The Kansas Water Office and Milwaukee Metropolitan Sewerage District have kindly agreed to present on their RCPP-funded projects.

Please contact Jasper Hobbs for more information on the webinar and the Nutrients Policy Committee.

EPA Webinar: Introduction to ECHO

Date: Tuesday, June 23, 2020 1:30 PM – 2:30 PM Eastern Time

Register: Click here

Join U.S. EPA for its next Enforcement and Compliance History Online (ECHO) webinar on Tuesday, June 23, 2020, 1:30-2:30 PM Eastern Daylight Time. This webinar will provide an overview of the data in ECHO and guide users through using the site to answer environmental compliance and enforcement questions. The focus of this session will be a collection of short, step-by-step demonstrations geared toward new and infrequent users. We will demonstrate the capabilities of the ECHO Facility Search to answer questions such as:

• How do I search for a specific facility?
• How do I search for facilities in my community?
• How do I search for facilities releasing a pollutant?

If you can’t make it, don’t worry, ECHO tutorials and recorded webinars are available at any time.

EPA Tools & Resources Training Webinar:  CompTox Chemicals Dashboard

Date: Wednesday, June 3, 2020, 3:00 PM – 4:00 PM Eastern Time

Register: Click here

EPA’s Computational Toxicology (CompTox) Chemicals Dashboard is a “first-stop-shop” for chemistry, toxicology and exposure information for over 875,000 chemicals. This information is available to support federal agencies, state environmental and health agencies, international governmental agencies and industries make decisions about chemicals related to human health and the environment. Data and models within the Dashboard also help with efforts to identify chemicals of most need of further testing. Data and enhancements to functionality are added with each new release of the Dashboard.

This training webinar will provide an overview of the Dashboard for new users as well as demonstrating new functionality and data for veteran users. The first part of the webinar will provide a general overview of the CompTox Chemicals Dashboard including what it is used for, why it was developed, and who can benefit from using it. The second portion of the webinar will be a step-by-step tutorial on how to use the Dashboard followed by a Q&A session.