Cybersecurity rule challenged by state AGs The attorneys general (AG) for the states of Missouri, Arkansas and Iowa have filed a petition for review in the U.S. Court of Appeals for the Eighth Circuit challenging the legality of the March 3 U.S. Environmental Protection Agency’s (EPA) cyber rule that mandates cybersecurity assessments be a part of sanitary surveys. The states’ petition “asks the Court to hold unlawful and set-aside EPA’s cybersecurity rule requiring States to impose new and burdensome cybersecurity infrastructure mandates on Public Water Systems.” The AGs’ challenge states that “EPA promulgated this rule without any statutory or Congressional support” and that by reinterpreting its authority the agency “seeks to evade (rather than obey) the procedures required for promulgating a new rule.” They emphasize that the “Administrative Procedure Act and other statutory obligations cannot be reduced to a speed bump so easily avoided.” The new cyber rule directs states to assess the cybersecurity of public water systems as part of the sanitary survey program, which the AGs say “ignores the scheme by which Congress intended to regulate cybersecurity under America’s Water Infrastructure Act of 2018 (AWIA), which requires only community water systems serving over 3,300 people to, among other actions, assess the risk and resilience of “electronic, computer, or other automated systems (including the security of such systems).” AWWA issued a press statement supporting the petition filed by the states of Missouri, Iowa and Arkansas, noting that EPA’s approach is not only unwise, but legally flawed. In a related administrative record, AWWA and the U.S. Conference of Mayors, submitted comments to EPA and the Office of Management and Budget (OMB), highlighting the agency's failure to fulfill a statutory obligation under the Paperwork Reduction Act. The cyber rule creates new obligations for state and public water systems that do not exist in the current sanitary survey program and therefore requires an assessment of the associated burden. In the absence of an OMB approved information collection request, state primacy agencies are not authorized to collect this information and public water systems are not required to respond to requests for information. The comments ask EPA “for the withdrawal of the rule due to procedural failures and an inadequate consideration of the burden associated with the rule.” Water groups recommend low-income aid program AWWA and four other water associations issued a joint recommendation this week that Congress and the Biden Administration learn from the current temporary assistance program for low-income water customers now housed at the U.S. Department of Health & Human Services (HHS), and place an improved, permanent program at HHS. AWWA, the Association of Metropolitan Water Agencies (AMWA), the National Association of Clean Water Agencies (NACWA), the National Association of Water Companies (NAWC), and the Water Environment Federation (WEF) released those policy recommendations in a joint appearance at the National Press Club in Washington, D.C. The recommendations were accompanied by a detailed analysis, “ Low-Income Water Customer Assistance Program Assessment Study ,” which documents how water affordability is a significant challenge for 20 million U.S. households. It estimates the annual need for federal funding to address this challenge is $2.4-$7.9 billion. Bill on advanced refunding of muni bonds introduced U.S. Reps. David Kustoff, R-Tenn., and Dutch Ruppersberger, D-Md., have introduced a bill that would restore the tax-exempt benefits from advanced refunding of municipal bonds – a specific request made by participants in AWWA’s annual Water Matters! Fly-In in March. H.R. 1837, the Investing in Our Communities Act , would restore a benefit to local municipal entities that was lost in 2017 overhaul of U.S. tax codes. H.R. 1837, the Investing in Our Communities Act would restore a benefit to local municipal entities that was lost in 2017 overhaul of U.S. tax codes. Co-sponsors so far are Reps. Andy Barr, R-Ken.; Brian Fitzpatrick, R-Penn.; Andrew Garbarino, R-N.Y.; Dan Kildee, D-Mich.; Derek Kilmer, D-Wash.; Gwen Moore, D-Wis. In a prepared statement, Kustoff said, 'I am proud to introduce the Investing in Our Communities Act, with Congressman Ruppersberger, that will give state and local governments a critical financing tool to stimulate economic development, create jobs, and save taxpayer dollars.” Ruppersberger said, 'This is a complicated finance issue that has a simple end result – saving American taxpayers money. By empowering local governments to refinance outstanding bonds for projects such as new roads, schools, hospitals and fire stations, we reduce their borrowing costs and free up resources for other community improvements. We create even more jobs and, ultimately, reduce the need to raise taxes.' Consent agreement proposed for pesticides EPA is proposing to enter a consent agreement in Center for Biological Diversity (CBD) v EPA over issues surrounding the application of pesticides on or near water, and is seeking public comment until May 24. The application of pesticides directly to water and for the control of pests over or near water will unavoidably be deposited in water and are therefore regulated under the Clean Water Act. While only applicable in those states where EPA directly administers it, the Pesticide General Permit (PGP) sets the bar for not only federally administered pesticide applications to water bodies, such as copper sulfate, but also state program efforts. Protection of sensitive species is central to managing pesticide residuals but completing consultations with the federal wildlife resource agencies seldom occurs in a timely fashion. Hence the Center for Biological Diversity (CBD)’s filing in the U.S. Court of Appeals for the 9th Circuit. General permits are designed to streamline routine activities. A key effect of EPA implementing this consent order will be facilitating United States Fish and Wildlife Service (FWS) reviewing Notices of Intent (NOI) for permit applications and providing a 30-day review period – this will begin shortly after final signature of the agreement. EPA will post existing biological opinions to inform NOI preparation and include species on the Endangered Species Act and designated critical habitat under FWS’s jurisdiction in the PGP eligibility tool . There are also commitments that will inform the 2026 re-issuance of the PGP. AWWA challenges ‘don’t say safe’ in CCR proposal AWWA is raising questions about EPA’s proposed determination that calling drinking water “safe” would be a violation of a revised Consumer Confidence Rule (CCR). In written comments submitted on EPA’s April 5 proposed revisions , AWWA says EPA should designate this as a significant rule and initiate interagency review and other associated processes because of the agency’s approach to what is safe water. In the proposed revisions, EPA says a statement in a publicly issued CCR that drinking water is safe would be a “false or misleading statement” and thus not allowed. This “don’t say safe” rule is in direct conflict with other water-related federal programs, and conflicts with the Safe Drinking Water Act’s name itself. It also is inconsistent with many other federal programs which utilize relevant definitions of “safe” without assuming the absence of any risk (such as those used in pharmaceuticals or in auto safety testing). The association also requested more time to comment given the complex issues presented in the proposal and that EPA separate the compliance monitoring data provisions into a separate rule since they are not related to the CCR. Although AWWA has not received a response to its requests from EPA at this writing, the Association is preparing substantive comments on the CCR rule (which covers many other topics, as described in the March 31 edition of the Water Utility Insider ) in anticipation of the current May 22 deadline. Please contact Adam Carpenter in the AWWA Washington, D.C., office with any questions or observations regarding the proposed rule. PFAS hazardous constituent designation in development EPA committed to the Gov. Michelle Lujan Grisham of New Mexico that it will designate perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorobutane sulfonic acid (PFBS) and GenX as “hazardous constituents” under the Resource Conservation & Recovery Act (RCRA). EPA is indicating that it will be proposing this designation this summer but acknowledged that the proposal had not yet been submitted to the OMB. OMB review includes interagency review and is typically afforded a 90-day period. OMB review can take substantially longer, however. In this proposal, EPA is not expected to either designate these PFAS as “ hazardous waste ,” which would subject waste containing these PFAS to RCRA’s cradle-to-grave management provisions. This leaves water systems in a difficult position of anticipating the risk of liability under Comprehensive Environmental Response, Compensation and Liability Act when EPA completes its ongoing rulemaking later this year, but not yet having a formal regulatory structure to guide disposal of PFOA and PFOS contaminated waste streams. EPA launches website showing funding status under IIJA EPA launched a new webpage to show the status of each state’s funding status in infrastructure finance programs authorized or expanded in the Infrastructure Investment and Jobs Act (IIJA) of 2021 . To procure IIJA funding, a state must publish an “Intended Use Plan” and then apply for funding. The act provides for specific pots of funds for different purposes: wastewater state revolving loan (SRF) general supplemental funding, wastewater SRF emerging contaminants funding, drinking water SRF general supplemental funding, drinking water SRF emerging contaminants funding and drinking water SRF lead service line replacement funding. In a written statement, EPA noted, “Because each state manages these funds differently, statuses may vary across states and funding categories.” The IIJA provided about $50 billion for water, wastewater and stormwater infrastructure upgrades. Congress wrote the law so that about 85% of this funding flows through the wastewater and drinking water state revolving fund programs because there was existing administrative frameworks there for distributing such money. Youth invited to submit digital creations on water To raise awareness of careers in water, EPA and the Interagency Working Group on Youth Programs are cooperating in a digital contest for those aged 13-24 through May 8, part of the government’s observances of Earth Day and Water Week, which ends this week. Entries may be submitted online . To enter, contestants must submit one of the following: A video essay, featuring acting, singing, poetry, or other spoken word (no more than 1 minute in length); Artwork, such as an illustration, graphic design, comic, meme, infographic, animated .gif, digital painting, etc.; Photograph, collage, or vision board; or Written essay, story, or poem (no more than 500 words). The working group was created in 2008 by an executive order and includes staff from 18 federal agencies with programs targeting youth services. White House to have chief environmental justice officer The Biden Administration issued an executive order creating a new office, the Office of Environmental Justice, for the federal chief environmental justice officer (CEJO) in the Council on Environmental Quality (CEQ). EO 14096 also directs federal agencies to prevent “disproportionate and adverse environmental and health impacts on [EJ] communities” and include consideration of cumulative impacts of pollution and other burdens, like climate change, cumulatively. The announcement also highlighted the administration’s “ Environmental Justice Scorecard .” Infrastructure Investment and Jobs Act (IIJA), Title VI complaints, technical assistance, and lead risk reduction dominated the EPA scorecard . There are specific instructions in the EO to federal agencies with substances on-site that may warrant Emergency Planning and Community Right-to-Know Act (EPCRA) Section 304(a) release notification . The EO will require those agencies to have procedures to assure that notices of a public meeting are distributed to the potentially affected community within 72 hours and that public meetings are held within six weeks of such a release event. In a curious departure from the main themes in the EO, it includes the formation of a new interagency policy committee (IPC) on Plastic Pollution and a Circular Economy. IPCs typically operate behind closed doors. The announcement gave this committee a broad charge but lacked a clear statement of expectations.