Water and Wastewater Outlook 2021

All indicators point to a 180-degree turn from the Trump de-regulatory effort.  The question becomes where will the Biden administration start?   On his first day in office, President Biden published a “List of Agency Actions for Review.” (See Fact Sheet: List of Agency Actions for Review | The White House) that identifies more than 100 regulations and executive actions issued by the Trump administration between January 20, 2017 and January 20, 2021,  including 48 regulations issued by the Environmental Protection Agency (EPA).  Several of these identified regulations address water and wastewater issues:

Waters of the United States.  The issue of what is, or is not, a navigable water subject to Clean Water Act protections has been subject of dispute for over 20 years.  In 2015, the Obama administration passed a controversial regulation that applied a broad definition  of  “Waters of the United States,” which extended protections to isolated waters beyond what many contend were the limits of the Clean Water Act.  The Trump administration moved quickly in its attempt to replace the Obama rule with its own less restrictive rule.  The Trump Navigable Waters Protection Rule is now in effect in all states although it remains the subject of multiple legal challenges.  It is anticipated that the Biden administration will seek to pause most of this litigation while it determines its next regulatory moves.  Many observers predict that the Biden administration will seek to repeal the Navigable Waters Protection Rule and replace it with a new rule, which will find a “middle ground” by incorporating some of the concepts of both the Obama and Trump rules.  The recently appointed Administrator of EPA, Michael Regan, has echoed this view.[1]   However, until that time, various district court rulings are likely to result in inconsistent interpretations of what qualifies as a regulated “Water of the United States.”  Any final Biden regulation will similarly be subject to extensive litigation and challenges, resulting in a never-ending quagmire of confusion until the Supreme Court speaks once again on the subject.

Section 401 Water Quality Certification.  Applicants seeking a federal permit or license for an activity that may result in a discharge to navigable waters must obtain a water quality certification from the impacted State finding that the discharge will not violate state water quality standards.  This certification process has been used as a cudgel to delay controversial projects, including pipelines. In response to issues presented by this certification process, the Trump administration tasked EPA with promulgating regulations to restrain the breadth of the §401 certification powers.  The final regulation limits the scope and timing of the §401 certification review process and places limits on the conditions that can be placed on the issued certification. This controversial rule is the subject of a number of court challenges by states and environmental groups.  EPA requested and received a stay in at least one of the cases, signaling President Biden’s intent to review the rule.  Although the Biden Administration could seek to repeal the rule, a more likely result may be to promulgate specific changes to the regulation where it perceives that the pendulum swung too far from the state to the regulated entity.  The §401 certification process has not been addressed in a comprehensive regulation since the 1971.  The ambiguities contained in the original regulation  have led to a history of court challenges leading all the way to the Supreme Court. The Biden administration now has the opportunity to address §401’s ambiguities and create a streamlined and balanced certification process.

Lead and Copper Rule.  Exposure to lead in drinking water can be a serious problem for children’s health as demonstrated by crises in Flint, Michigan, New Jersey and other locations in the past few years.  The Trump administration recognized these threats promulgated the first update to the Lead and Copper Rule since 1991. The updated rule seeks to impose new testing procedures, improve protections for elementary age students and add requirements on lead service line replacements.  Although this rule was seen as making progress in addressing loopholes and deficiencies in the original rule, others believe that the rule did not go far enough to address the risks, with many focusing on the slow pace and triggers for lead service line replacements. On February 9, 2021, EPA announced that it would delay the start date of various requirements under the Lead and Copper Rule to allow additional comment and evaluation.  It is unlikely that the Biden administration will repeal the Lead and Copper Rule but rather will seek to improve the rule to address concerns of stakeholders.  Some anticipated changes include the requirements to inventory and replace lead service lines as well as the 10 ppb “action level,” which triggers a public water system to address lead service lines.  Although these rules appear narrow in their “regulatory” impact, with the new requirements imposed on municipalities and water utilities, the impact of the Lead and Copper Rule is broad as it impacts a quality of life issue, balancing health and safety with ratepayer impacts by new costs.

National Pollutant Discharge Elimination System (NPDES) Electronic Reporting.  In 2015, EPA adopted a rule requiring EPA and the state to modernize NPDES reporting through replacing most paper-based reporting with electronic reporting, with the most recent deadline of December 21, 2020.  However, before that deadline expired, states governments requested additional time for implementation from EPA.  The Phase 2 Electronic Reporting Rule extends the compliance date to December 21, 2025 and allows states to request more time if necessary. It is unclear how this “wonkish” rule came to be included on Biden’s list of regulations for review.  It is possible that it simply got swept up with the original more policy-driven rules.  Alternatively, there may be issues with the continuous extensions of the compliance date and the new “wiggle room” provided by the regulation to provide even more time to comply. 

Further, beyond these regulations identified in the List of Agency Actions for Review, EPA is presented with other water and wastewater issues including the regulation of per- and polyfluoroalkyl substances  (PFAS) in drinking water; NPDES groundwater discharge “functional equivalent” guidance; and the potential reauthorization of the Clean Water Act 319 non-point source program for the first time in 30 years.[2]  In addition, EPA will remain focused on infrastructure initiatives to help fund desperately needed water and wastewater upgrades to water and wastewater treatment plants and piping. Further, the anticipated timeline for the EPA to address these water and wastewater issues is unclear as they are just a sliver of the issues to be faced by EPA over all its regulated environmental programs.  Regardless, whatever the pace of regulatory development, significant changes are anticipated around the bend.

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