In November 2011, EPA held a federalism briefing for state and local government organizations on the Agency’s forthcoming proposed regulatory revisions to the Lead and Copper Rule (LCR), pursuant to Executive Order 13132: Federalism. The LCR is a drinking water regulation that requires monitoring and treatment techniques to control lead and copper corrosion in drinking water systems. EPA is considering changes to the current rule in five key areas: sample site selection criteria, lead sample protocol, public education for copper, measures to ensure optimal corrosion control treatment, and lead service line replacement. On January 13, 2012, NLC and the U.S. Conference of Mayors submitted a joint letter to EPA outlining our comments and concerns. EPA aims to publish the proposed rule revisions late 2012, with a final rule expected in 2013. The LCR revisions will become effective in 2016.
In October 2011, the U.S. Environmental Protection Agency (EPA) announced a new integrated planning policy to help state and local governments identify opportunities to achieve clean water by controlling and managing releases of wastewater and stormwater runoff more efficiently and cost effectively. In a memo issued jointly by the EPA Offices of Water and Enforcement and Compliance to EPA Regional Administrators, the agency expressed its commitment to and support for working with state and local governments on a new comprehensive and integrated planning approach to implement “the most important projects first.”
In the memo, the agency recognizes that many local governments face difficult financial conditions and commits to developing a planning framework that will allow communities to evaluate all of their Clean Water Act stormwater and wastewater obligations and prioritize their investments in a manner that maximizes water quality gains. The framework will spell out: 1) the essential components of an integrated plan; 2) steps for identifying municipalities that might best make use of such an approach; and 3) how best to implement the plans with state partners under the Clean Water Act permit and enforcement programs.
NLC hosted a conference call with EPA in early December to discuss the integrated planning policy and testified at a hearing on Capitol Hill later in the month on the need for EPA and Congress to work more effectively with local governments in making cost-effective and affordable investments in water quality. NLC will continue to provide feedback to EPA as the framework development process moves forward.
In May 2011, EPA and the U.S. Army Corps of Engineers (Corps) released “Draft Guidance on Identifying Waters Protected by the Clean Water Act” (Draft Guidance) to help determine whether a waterway, water body or wetland would be jurisdictional under the Clean Water Act (CWA). The guidance is a component of a larger national clean water framework released by the Obama Administration that emphasizes the importance of partnerships and coordination with states, local governments, key stakeholders and the public to protect public health and water quality and promote the nation’s energy and economic security.
In July 2011, NLC submitted comments on the Draft Guidance, requesting that EPA and the Corps move forward with a rulemaking process that features an open and transparent means of proposing and establishing regulations and ensures that state, local, and private entity concerns are fully considered and properly addressed. Additionally, the joint comments raise concerns with the fact that the draft guidance failed to consider the effects of the proposed changes on all CWA programs beyond the 404 permit program, such as Total Maximum Daily Load (TMDL) and water quality standards programs and the National Pollutant Discharge Elimination System (NPDES) permit program.
In response to these comments, EPA indicated that it would not move forward with the Draft Guidance, but rather a rulemaking pertaining to the “Waters of the U.S.” definition. In November 2011, EPA and the Corps initiated a formal federalism consultation process with state and local government organizations. NLC submitted comments on the federalism consultation briefing on December 23, 2011. In early 2012, however, EPA changed course, putting the rulemaking on hold. EPA has sent a final guidance document to the Office of Management and Budget (OMB), with an anticipated release in April 2012. NLC submitted a letter to OMB in March, again expressing concerns with moving forward with a guidance document.
EPA has initiated a national rulemaking to establish a program to reduce stormwater discharges from newly-developed and redeveloped sites and to make other regulatory changes to its stormwater program. The rulemaking aims to take a new approach to stormwater management by shifting from managing stormwater at a treatment facility toward managing it where it falls, using green infrastructure practices such as infiltration, evapotranspiration, and harvesting/use.
As part of the rulemaking, EPA is: (1) exploring options for expanding the universe of federally-regulated municipal separate storm sewer systems (MS4s); (2) considering developing performance standards for discharges from new and redeveloped sites; (3) evaluating options for establishing municipal retrofit requirements; (4) exploring the desirability of establishing different requirements for transportation facilities; and (5) establishing Chesapeake Bay-specific requirements. While the rule was initially planned for proposal in September 2011, EPA has pushed the date back several times. There is no expected release date at this time.
For the first time, EPA is considering regulating coal ash from the disposal of the wastes generated by electric utilities and independent power producers. Two possible options are being considered for the management of coal ash: (1) EPA would list these residuals as special (hazardous) wastes subject to regulation under subtitle C of the Resource, Recovery and Conservation Act (RCRA), when destined for disposal in landfills or surface impoundments; and (2) EPA would regulate coal ash under subtitle D of RCRA, the section for non-hazardous wastes. Currently, coal ash is considered exempt wastes under RCRA. EPA has not yet stated when the final rule will be released.