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ACWA Weekly Wrap Vol. X, Issue 23 (Week of June 24, 2019)

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News

CEQ Issues Draft NEPA GHG Guidance

The White House Council on Environmental Quality (CEQ) issued draft guidance clarifying the treatment of greenhouse gas (GHG) emissions in environmental impact reviews of federal projects under the National Environmental Policy Act (NEPA). CEQ is accepting comment July 20, 2019. The new guidance replaces Obama administration guidance that began requiring all environmental impact statements conducted under NEPA to include an estimate of how a project would contribute to climate change in terms of greenhouse gas emissions. The Trump administration withdrew that guidance in 2017.  The new guidance, if finalized, would require agencies to project a federal project’s greenhouse gas emissions only when they are “substantial enough to warrant quantification, and when it is practicable” to do so.

SCOTUS Issues Decision on Agency Deference

This week, the United States Supreme Court issued its decision in Kisor v. Wilkie.  The case, involving a dispute with the Veterans Administration had big implications for administrative agencies.  The justices declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation – a doctrine sometimes known as Auer and/or Seminole Rock deference. But in an opinion by Justice Elena Kagan, the court made clear that the doctrine has limits, and it will not apply in every scenario in which an agency is interpreting its own rules.

Justice Kagan explained that courts should not reflexively defer to an agency’s interpretation of its own regulation. Instead, she explained, deference should be given only if the agency’s regulation is genuinely ambiguous. If it isn’t ambiguous, she continued, the “regulation then must mean what it means—and the court must give it effect, as the court would any law.” And she suggested that courts must try hard to resolve any ambiguities that it thinks it sees in a regulation: She acknowledged that “regulations can sometimes make the eyes glaze over,” but emphasized that “hard interpretative conundrums, even relating to complex rules, can often be solved.”  Even when a regulation is genuinely ambiguous, Kagan continued, that is not enough for deference. First, she indicated, the agency’s interpretation must also be reasonable – which, she warned, is “a requirement an agency can fail.” And the interpretation must also reflect the agency’s official position in an area of its expertise. “The upshot of all this,” Kagan concluded, is that, when it applies, “Auer deference gives an agency significant leeway to say what its own rules mean.” “But,” she cautioned, “that phrase ‘when it applies’ is important—because it often doesn’t.”

To view the opinion, go here.  For commentary on the opinion, Scotusblog.com is hosting an online symposium here.

House Passes Appropriations Package

The House passed a five-bill appropriations package this week which included FY20 funding for the EPA. This bill provided $9.53 billion for the EPA, $677 million above current levels. This bill is unlikely to make it out of Congress in its current form due to the republican controlled Senate. For more information, please see the House Committee on Appropriations website (minority press release available here).

Senate Passes PFAS Legislation in Defense Bill

On Thursday, June 27, the Senate approved, by 86-8 vote, to include an amendment to the National Defense Authorization Act that has provisions requiring EPA and other federal agencies to monitor for and regulate PFAS under the Safe Drinking Water Act and Toxic Substances Control Act. The Environment and Public Works committee approved this legislation on June 19. The legislation does not include a mandate to declare the chemicals “hazardous substances” under the Superfund law. The House is expected to vote on the legislation after the July 4th recess.

USDA Provides Update on 2018 Farm Bill Implementation Progress

This week, U.S. Secretary of Agriculture Sonny Purdue announced an update on the implementation status of the 2018 Farm Bill.  For the Conservation title, the announcement offered updates on CRP, RCPP, CSP, technical changes to conservation programs, and CIG:

Conservation Reserve Program (CRP):

  • FSA began accepting applications on June 3, 2019, for certain practices under the continuous CRP, offering a one-year extension to existing CRP participants who have expiring CRP contracts of 14 years or less, and reopening enrollment for existing Conservation Reserve Enhancement Program (CREP) agreements.
  • FSA plans to offer a General CRP sign-up in December 2019.

Regional Conservation Partnership Program (RCPP): On April 26, 2019, Natural Resources Conservation Service (NRCS) released guidance to State committees to identify RCPP coordinators in each State.

Conservation Stewardship Program (CSP): On May 10, 2019, NRCS posted guidance for state conservationists regarding the handling of participant requests to apply for new contracts, as well as extending unexpired contracts from 2014. Additional guidance was posted regarding changes needed for existing RCPP partnership agreements to enroll in new CSP contracts.

Technical Changes to NRCS Conservation Programs: On May 6, 2019, NRCS published an interim final rule to make existing regulations consistent with the 2018 Farm Bill. These include:

  • Waiving duplicative requirements under the Watershed Protection and Flood Prevention Program;
  • Expanding the purposes of the Healthy Forests Reserve Program to allow protection of at-risk species and allowing permanent easements on Tribal lands;
  • Authorizing that certification of technical service providers be through a qualified non-federal entity; and
  • Requiring that $3 million of funds to implement the Voluntary Public Access and Habitat Incentive Program be used to encourage public access for hunting and other recreational activities on wetlands enrolled in the Agricultural Conservation Easement Program.

Conservation Innovation Grants (CIG):

  • On May 15, 2019, NRCS announced that it is investing $25 million per year over the next five years to help support On-Farm Conservation Innovation Trials, part of the CIG and available to farmers eligible to participate in the Environmental Quality Incentives Program. NRCS will accept proposals through July 15, 2019 for the new On-Farm Trials.
  • On May 30, 2019, NRCS announced the availability of $12.5 million to support CIG on agricultural lands. NRCS will accept proposals through July 30, 2019.

Also, the announcement included some relevant updates in the Rural Development title:

Interagency Task Force on Rural Water Quality: The Rural Utility Service will host the kick-off meeting on July 10, at the USDA Whitten Building.

Council on Rural Community Innovation and Economic Development: Rural Development is holding the next meeting with support from the Office of Science Technology Policy on July 10, at the Eisenhower Executive Office Building.

Implementation Outreach

  • Presented at the P3 Water Summit and the Council on Infrastructure Financing Authorities (CIFA) in San Diego, California and at the Infrastructure Investment Summit in Washington, DC on the Interagency Task Force on Rural Water Quality that will examine drinking water and surface water contamination in rural communities.
  • The Innovation Center hosted a Human Experience (HX) Lab on May 23 rd focused on the Lender’s experience and interaction with Rural Development related to the Community Facilities and Water & Waste Disposal Guaranteed Loan Programs.

For the entire announcement, go here.

FY20 NWQI Bulletin Released

This week, NRCS posted the FY20 NWQI Bulletin for watershed selection.  As discussed on the June 17 ACWA webinar on NWQI, there are updates to the requirements for NWQI FY20 and onward, including the new requirement that all NWQI watersheds (new or existing) have a watershed assessment.

Please review the Bulletin and work with your NRCS counterparts to determine the path for each existing NWQI watershed, and any new watersheds, in FY20. Please note, watershed selection is due by NRCS state offices on September 20, 2019. If you have questions about the FY20 bulletin and watershed  selections, feel free to contact Erika Larsen (Larsen.erika@epa.gov, 202-566-0048) or Chris Solloway (Solloway.chris@epa.gov, 202-566-1202).

As communicated in the FY19 bulletin and in the ACWA NWQI Webinar on June 17th,  ALL NWQI watersheds must have a watershed plan or assessment that informs implementation. Please see attachment B in the bulletin for the NWQI watershed assessment guidance. NRCS does not require a specific type of plan or methodology, but all plans must contain these specific requirements:

      1. Sufficient assessment to guide the siting and implementation of conservation practices at the HUC-12 level (or within Source Water Protection Area) for greatest water quality benefit.
      2. Identification of critical source areas for identified pollutants of concern (a map showing these areas within the watershed is required).
      3. Established goals for water quality improvement, with specific metrics that can establish progress towards these goals.
      4. Outreach strategies for implementation on vulnerable acres.

NRCS is again providing support for the development of these assessments by NRCS state offices and partners through their NWQI readiness phase. Any existing NWQI watershed without a plan/assessment may apply for the readiness phase to prepare such an assessment. For currently approved implementation watersheds, NRCS offices may continue to provide financial assistance for implementation during FY20 while readiness assessments are completed for the watershed which will inform implementation in FY21 and beyond.

In addition to impaired watersheds, NRCS is also soliciting requests to propose areas for drinking water protection in the NWQI. State water quality agencies may be interested in identifying opportunities and synergies with state and local drinking water/source water programs, where appropriate, to collaborate on the source water projects, including watershed selection and/or partnerships. For questions about the NWQI Source Water Protection Program, please feel free to contact Karen Wirth (wirth.karen@epa.gov,) or Bo Williams (williams.james@epa.gov) or reach out to your regional/state drinking water contact.

Association Updates

No Wrap Next Week – 07/01 to 07/05

In observance of Independence Day, ACWA staff will be out of office.

Nutrients Policy Committee Hosts Webinar on USGS Tool

This week, the Nutrients Policy Committee hosted a webinar on the USGS Point Source Load Estimation Tool (“PSLoadEsT”).  Kenneth Skinner of USGS presented the user friendly tool which can be used for consistent and reliable data for nutrient concentrations released by point source discharges, specifically total nitrogen (TN) and total phosphorous (TP).  PSLoadEsT estimates point-source nutrient loads, annual total nitrogen (TN) and total phosphorus (TP), for all major point-source facilities. Although there are almost 3 times as many minor wastewater treatment facilities (WWTFs) as major WWTFs, the TN load contributed by major WWTFs to streams is estimated to be 15 times larger. Similarly, major WWTFs contribute about 13 times more TP to streams. For more details see Point-source nutrient loads to streams of the conterminous United States, 2012: U.S. Geological Survey Data Series 1101 and Annual wastewater nutrient data preparation and load estimation using the Point Source Load Estimation Tool (PSLoadEsT): U.S. Geological Survey Open-File Report 2019-1025.  To view the presentation slides, go here.  If you have questions on PSLoadEsT, you can contact Kenneth Skinner at kskinner@usgs.gov.

Meetings

ACWA ASDWA Water Reuse State Regulators Summit – September 8th 2019

ACWA and ASDWA will be holding a Water Reuse State Regulators Summit prior to Annual WateReuse Symposium. The goal of this workshop is for states to discuss barriers and research needs and for state to state information sharing on water reuse.  There is no registration fee associated with this summit and states can register for the WaterReuse Symposium for a discounted rate. Funding is available through ACWA for travel assistance. To register for this summit or for more information please email Frances Bothfeld.

2019 National NPDES Permit Writers Workshop – September 2019

Meeting SOLD OUT !! – Please do still register if you want be considered part of the waitlist.

The 2019 National NPDES Permit Writers Workshop is now at full capacity. If you were previously provided communication that your state could receive travel support from ACWA/EPA but you did not yet register, please do not book your travel until your registration has been confirmed. If you have questions about this, please contact Sean Rolland. We wish it were possible to accommodate everyone that it is interested in participating but the hotel venue space is the limiting factor for this workshop. At this point we are building a “wait list” for the event. To add yourself to the wait list, please follow the instructions for registering – the system will automatically put you on that wait list and you will receive a notification should slots open up. It is completely possible we will get a few cancellations as folks make their way through the travel approval process.

Registration Link:

https://acwa.member365.com/public/event/details/398bb63152a5c9a13514740f6213fcc6b100b296/1

The State/EPA 2019 National NPDES Permit Writers Workshop will be held September 17-19, 2019 in Washington, DC. This meeting is intended to help support states and EPA to showcase permit writer innovations, assist with analysis of training, guidance, tools, and other support material needs, improve administrative efficiencies, clarify roles and responsibilities, build stronger linkages to WQS & TMDLs, modernize permit terms and data management, discuss program performance measures, and identify program areas where targeted technical assistance would be most beneficial. For more information, contact Sean Rolland or see our website.

ACWA Nutrients Permitting Workshop – November 2019

Registration for the November 2019 Nutrients Permitting Workshop located in Alexandria, Virginia at the AlexRenew facility November 5-7, 2019 is live.  To register, go here.  The workshop will focus on identifying challenges and building solutions regarding water quality standards and permitting for nutrients.  To view a draft agenda, go here.

Lodging is available at the Embassy Suites Alexandria Hotel.  To reserve your lodging, call direct 703-684-7900 or 1-800-EMBASSY and ask for the Association of Clean Water Administrators group of rooms, or reserve online here.