Regulations - Environment

Proposed Rulemaking for New Source Performance Standards and Emissions Guidelines for Municipal Solid Waste Landfills

Proposed National Rulemaking to Strengthen the Stormwater Program

In 2010, the U.S. Environmental Protection Agency (EPA) initiated a proposed 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.

The key focus of the proposed stormwater rule is to establish a retention-based performance standard to reduce pollutants from stormwater runoff. EPA is considering applying this standard to all types of projects, including residential, commercial, industrial and institutional. The standard could apply "nationwide" with different size thresholds depending if the site is inside or outside of the municipal separate storm sewer systems (MS4s) area. EPA is also considering a number of flexibilities for the rule, including delayed implementation to allow time for local governments to update codes and ordinances. It is unclear whether certain provisions that EPA was previously considering in 2010, such as establishing different requirements for transportation facilities, are currently being considered.

In addition to establishing performance standards, EPA is considering expanding the MS4 program area, requiring large regulated municipalities to establish retrofit requirements, and designating government-owned maintenance yards as industrial sources, which would subject them to the stormwater regulations.

After pushing the date back several times, EPA recently laid out a new timeframe for completing the proposed rulemaking: June 10, 2013, with a final rule anticipated by December 10, 2014.

Consumer Confidence Report Rule: Electronic Delivery Options and Considerations

In August 2011, the U.S. Environmental Protection Agency (EPA) identified the Consumer Confidence Report (CCR) Rule in the Agency's Final Plan for Periodic Retrospective Reviews of Existing Regulations.

The purpose of the Consumer Confidence Report (CCR) Rule is to raise customers' awareness of where their drinking water comes from, the quality of their drinking water, what it takes to deliver water to their home and the importance of protecting drinking water sources. The CCR Rule requires each community water system (CWS) to mail or otherwise directly deliver one copy of its CCR to each customer annually.

During the Retrospective Review, EPA identified opportunities for improving the effectiveness of the methods used to communicate drinking water information to the public, while lowering the burden on water systems. In September 2012, EPA published a draft Consumer Confidence Report: Electronic Delivery Options and Considerations, which was open for public comment, that evaluates several electronic delivery methods to determine which forms meet existing CCR Rule requirements. EPA finalized the CCR Rule Retrospective Review in January 2013.

EPA: Integrated Municipal Stormwater and Wastewater Plans

In 2012, the U.S. Environmental Protection Agency (EPA) released an Integrated Municipal Stormwater and Wastewater Planning Approach Framework (Framework) 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. Recognizing that many local governments face difficult financial conditions meeting their Clean Water Act (CWA) obligations, the Framework allows for an integrated planning approach to help local governments meet those requirements in an efficient and cost effective manner through sequencing and scheduling of projects. The Framework outlines key principles to guide the development of an integrated plan, the essential elements of an integrated plan, and provides guidance for EPA regions, states and local governments on developing and implementing integrated plans under the CWA.

In developing the Framework, EPA sought stakeholder input, including from NLC. In a February 29, 2012 letter to EPA, NLC called on the agency to consider affordability issues for communities, to grant local governments flexibility to evaluate and make improvements to the plan, and to rely on the permit process, rather than through consent decrees, for the implementation of long-term integrated plans. NLC emphasized these key concerns to Congress as part of testimony before the House Committee on Transportation and Infrastructure, Subcommittee on Water Resources and Environment in December 2011 and July 2012.

The Framework builds off of an October 2011 EPA memorandum, "Achieving Water Quality Through Municipal Stormwater and Wastewater Plans," in which 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."

Building off of the integrated planning framework, in Jan. 2013, EPA released a memo to the Regions clarifying how the financial capability of a community will be considered when developing schedules for municipal projects necessary to meet CWA obligations. NLC is participating in this affordability dialogue with EPA, the U.S. Conference of Mayors and the National Association of Counties.

Proposed Lead and Copper Rule Long-Term Rule Revisions

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.

Clean Water Act Definition of "Waters of the United States" 

In March 2014, EPA and the U.S. Army Corps of Engineers (Corps) released a proposed rule to change the Clean Water Act (CWA) definition of "Waters of the U.S.," which is used to determine whether individual water bodies are jurisdictional under the CWA and thereby subject to permitting and other CWA requirements.

The proposed rule focuses on three areas: stream systems, including headwaters and tributaries; waters that are adjacent to other waters, including those in riparian areas and floodplains; and "other waters" that would have to meet a "significant nexus" threshold in order to be considered jurisdictional. Under the proposed rule, all tributaries and adjacent waters would be considered jurisdictional.

The proposed rule includes changes to a number of regulatory definitions, which could impact the extent and number of waters covered:

  • First time definition of "tributary," which includes ditches unless otherwise exempt.
  • Change in the term "adjacent wetlands" to "adjacent waters," defined as "bordering, contiguous or neighboring." A first time definition of "neighboring" is included in the proposed rule, as well as first time definitions of "floodplain" and "riparian area" - waters which would be considered jurisdictional
  • First time definitions of "other waters" and "significant nexus."
  • In addition, under the proposed rule, because Municipal Separate Storm Sewer System (MS4) ditches, channels, conveyances etc. are not explicitly exempt under the proposed rule, they could be considered jurisdictional and thereby subject to Section 404 permits, as well as state Water Quality Standards. Moreover, because green infrastructure is not exempt under the proposed rule, Section 404 permits could be required for green infrastructure construction and maintenance.

As background, in May 2011, EPA and the 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 in December 2011. In early 2012, however, EPA changed course, putting the rulemaking on hold and sent a final guidance document to the Office of Management and Budget (OMB). NLC submitted a letter to OMB in March 2012, again expressing concerns with moving forward with a guidance document. 

In September 2013, EPA and the Corps changed course again and sent a draft "Waters of the U.S" rule OMB for interagency review. In doing so, EPA and the Corps withdrew their 2011 Draft Guidance. At the same time, EPA released a draft science report, Connectivity of Streams and Wetlands to Downstream Waters, which the agencies have stated will form the basis for a final rule.

Proposed Rule for Coal Combustion Residuals

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.