On June 1, EPA Administrator signed a final rule seeking to increase predictability for applicants by clarifying the Clean Water Act section 401 state water quality certification process.
Continue Reading EPA Finalizes CWA Section 401 Water Quality Certification Regulation
The California State Water Resources Control Board is poised to become “the first regulatory agency in the world to specifically define ‘Microplastics in Drinking Water.’” Health and Safety Code section 116376 adds microplastics regulations to California’s Safe Drinking Water Act. It requires the State Board to adopt a definition for Microplastics in Drinking Water by July 1, 2020. Additionally, before July 1, 2021, the State Board must: (1) adopt a standard methodology for testing drinking water for microplastics; (2) adopt a requirement for four years of testing and reporting of microplastics in drinking water, including public disclosure of the results; (3) consider issuing a notification level or other guidance to help consumers interpret the testing results; and (4) accredit laboratories in California to analyze for microplastics. Water suppliers in California will be the first in the nation to test for microplastics in drinking water.
Continue Reading Regulating Microplastics in Drinking Water: California Retains its Vanguard Status
Yesterday the Supreme Court of the United States issued its most significant Clean Water Act decision in more than a decade, resolving a split among lower courts over the reach of the Clean Water Act’s “point source” or National Pollutant Discharge Elimination System (NPDES) program. Pollutants travel to bodies of water in many ways: by pipe, ditch, or runoff, for example. The Clean Water Act defines some of those ways of moving pollutants as “point sources”—specifically, pipes, ditches, and similar “discernible, confined and discrete conveyance[s]”—and bans the “addition of any pollutant to navigable waters from any point source” without an NPDES permit. But no similar permitting requirement applies to pollution added from nonpoint sources, which is instead controlled by state and other federal environmental laws.
Continue Reading County of Maui v. Hawai’i Wildlife Fund: Supreme Court Rejects Ninth Circuit’s Expansive Test for NPDES Permitting Under Clean Water Act, Requires Direct Discharges to Navigable Waters or Functional Equivalent of a Direct Discharge
On March 20, the California Water Boards issued guidance about complying with regulatory requirements during the COVID-19 shelter-in-place orders. The guidance directs regulated entities to “immediately” notify the Board if compliance is not possible and to seek appropriate relief. Water Board staff committed to “do their best to respond within 24/48 hours.” It has now been a month, and preliminary data about the extent to which regulated entities have sought relief, and how the Regional Water Boards have responded is available. Information was presented today providing detail about extension requests and delays by regulated entities as of the week of April 20 (i.e., at the conclusion of the first month of the policy).
Continue Reading In First Month of COVID-19 Guidance, the California Regional Water Quality Control Boards Have Issued Hundreds of Approvals for Compliance Extensions Submitted by Regulated Entities
EPA is attempting to thread the needle in responding to the COVID-19 pandemic: offering clarity about ongoing federal environmental obligations to the broad swath of regulated entities faced with the threat of significant disruptions and other challenges, while contending with intense opposition from others who perceive its temporary enforcement policy as a “free pass to pollute” and a failure to enforce legal requirements. Notwithstanding the mounting scrutiny from U.S. Senators, states, and citizens groups, and now a legal challenge, EPA’s Office of Enforcement and Compliance Assurance (OECA) has continued implementing its temporary policy regarding the exercise of enforcement discretion due to the COVID-19 pandemic via issuance of additional guidance on National Pollutant Discharge Elimination System (NPDES) reporting. Other state and federal agencies, including the U.S. Department of Justice, the Texas Commission on Environmental Quality, the Railroad Commission of Texas, and the California Environmental Protection Agency have followed EPA’s lead in issuing their own temporary policies related to the pandemic.
Continue Reading EPA Continues Temporary COVID-19 Policies Despite Senators’, States’, Citizens Groups’ Scrutiny
Regulated industry has been expressing significant concern about disruption as a result of the COVID-19 pandemic and seeking assurance from the US Environmental Protection Agency (EPA) that the extraordinary circumstances across the United States would be taken into account in the event of any unanticipated noncompliance. Yesterday, March 26, 2020, EPA’s (EPA) Office of Enforcement and Compliance Assurance (OECA) Assistant Administrator Susan Parker Bodine responded to these concerns with the issuance of a memorandum addressing the impact of the current global COVID-19 pandemic on EPA’s enforcement program. In it, OECA commits EPA to a “temporary policy” of exercising enforcement discretion for noncompliance “resulting from the COVID-19 pandemic,” provided that regulated entities follow the steps required in the policy.
Continue Reading Deciphering EPA’s Temporary Enforcement Discretion Policy for COVID-19
Regulatory staff continue to advance the Administration’s regulatory agenda, including issuing proposed and final rules. This blog post highlights the status of key natural resource regulatory actions.
Continue Reading COVID-19 and the CRA Deadline: Status of the Natural Resources Regulatory Agenda
The California State Water Resources Control Board (State Board) and the nine Regional Water Quality Control Boards (the Regional Water Boards) recently published guidance on complying with regulatory requirements during the COVID-19 shelter-in-place orders.
Continue Reading Compliance with State Water Board Requirements and Permits During California’s Shelter-in-Place Order Associated with COVID-19
At least some courts applying the Supreme Court’s recent decision in Kisor v. Wilkie are rejecting agency regulatory interpretations that create “unfair surprise” for regulated parties.
Continue Reading No Unfair Surprises Under Kisor
On March 2, 2020, the Environmental Protection Agency proposed an updated Multi-Sector General Permit, which authorizes the discharge of stormwater industrial activities and is the model for most states’ industrial stormwater NPDES permits. The proposal makes numerous updates to the MSGP and, notably, incorporates recommendations from the National Academy of Sciences report on improving permitting of industrial stormwater. EPA will be accepting public comments on the proposal until May 1, 2020.
Continue Reading EPA Proposes New Multi-Sector General Permit for Industrial Stormwater