Water funded as expected in omnibus bill U.S. Congress is poised to pass a massive omnibus appropriations bill to fund federal government operations for the remainder of fiscal year 2023, including funding for water programs. However, one concerning trend continued from FY2022 – using the state revolving loan fund (SRF) programs to fund “congressionally directed spending,” also known as earmarks. Funding in this bill is in addition to the funds provided in last year’s Infrastructure Investment and Jobs Act , or H.R. 3684 . The drinking water SRF program will receive $1.126 billion in FY2023, while the wastewater SRF will get $1.64 billion. However, congressional earmarks will take $609 million out of the drinking water SRF and $863 million out of the wastewater fund. Due to the huge increase in SRF funding in last year’s IIJA, that is currently not a major problem. However, the IIJA funding is for five years, so if the practice of taking earmarks out of the SRFs continues, it could have a debilitating effect on the programs after IIJA funding ends. AWWA will be bringing this issue to Congress’ attention in the upcoming session. Other funding highlights regarding drinking water include: $68 million for the Water Infrastructure Finance and Innovation Act (WIFIA) program, with an additional $7.6 million administrative costs (a slight increase from 2022) $36 million for water and wastewater projects on the U.S.-Mexico border $30 million for removing lead from schools $30 million for technical assistance and training for small and disadvantaged systems $27 million for grants to non-profits for technical assistance for small, rural and tribal systems $25 million for lead in drinking water programs $7 million for resilience efforts at small and disadvantaged communities $6 million for water workforce efforts $5 million for resilience projects at medium and large water systems DOJ asks court to halt litigation The U.S. Department of Justice (DOJ) filed a motion asking the U.S. Court of Appeals for the District of Columbia to halt a challenge to Lead and Copper Rule Revisions (LCRR) in light of the U.S. Environmental Protection Agency’s (EPA) announcement that it is reconsidering aspects of the LCRR. In Newburgh Clean Water Project v. EPA, Newburgh Clean Water Project (NCWP) and other groups, as well as a group of state attorneys general, filed petitions asserting that the LCRR was flawed because EPA had not considered setting a maximum contaminant level at the tap, had not complied with the Safe Drinking Water Act’s anti-backsliding provisions by setting a lower mandatory lead service line removal rate, and that the action level should have been lowered. The petitioners consented to DOJ’s motion. AWWA, an intervenor in the case, also supported the motion, which avoids needless litigation while EPA takes the steps it previously announced in December 2021 to review and potentially revise the LCRR by initiating a new rulemaking. If the court agrees to EPA’s request, it would not change the agency’s stated plan to review and potentially revise the LCRR (See Dec. 17, 2021, Federal Register notice ). EPA’s request does not alter LCRR compliance requirements or timelines. EPA’s request indicates the agency plans to issue a new proposed rule by September 2023 and a final rule by Oct. 16, 2024. PFAS communication resources released The Water Research Foundation (WaterRF) this week released a toolkit of resources to help water systems communicate about per-and polyfluoroalkyl substances (PFAS). The materials are available via the WaterRF website. One key focus of the new resources is on preparing to communicate with customers in anticipation of the fifth cycle of Unregulated Contaminant Monitoring Rule sampling and on communications during that sampling. UCMR5 begins next year for many water systems. The materials also address communicating to customers about PFAS holistically, from consumer purchasing preferences to source water protection, to its presence in drinking water, and ultimately, about presence in wastewater, biosolids and other waste streams. NDWAC working group focuses on Legionella , EJ The fifth meeting of EPA’s Microbial/Disinfection Byproduct workgroup – functioning under the National Drinking Water Advisory Council – focused on the risk posed by Legionella associated with exposures from water in buildings. Legionella researchers summarized work by the National Academies on upward trends in occurrence, contributing factors, and emphasized the role of building water management plans in controlling risk posed by Legionella and other opportunistic pathogens like Mycobacteria . They also cited research illustrating a connection between higher morbidity and race . Much of the discussion focused on how water systems manage their distribution systems and how that might have unequitable effects within a particular community. It is not clear how environmental justice or a recognized need for greater investment by building owners will be featured in the working group’s recommendations. Time is beginning to run short for developing those recommendations. The next meeting in January may see a first attempt at setting priority issues, which may require revisions for recommendations as prepared by the working group’s facilitator and EPA. Commenters question whether Cr(VI) is mutagenic Formal comments on EPA’s October draft toxicological review of hexavalent chromium (Cr(VI)) question the agency’s finding of mutagenic properties. The draft was released for public comment earlier this fall under EPA’s Integrated Risk Information System (IRIS) and review by the agency’s Science Advisory Board (SAB). This review could lead to a maximum contaminant level goal (MCLG) of zero if EPA sets a drinking water standard. Based on typical agency assumptions and practices, the review suggests a drinking water health advisory level, if calculated, would be on the order of 35 ng/L. ToxStrategies, which has spearheaded a research program funded through the American Chemistry Council (ACC), submitted the most substantial technical comments available in the docket , citing significant flaws in EPA’s analysis. EPA has not announced when the SAB will meet, but a meeting is anticipated in the first quarter of 2023. AWWA also commented , asking the SAB to assure EPA’s analysis is fit for purpose, as the agency must comply with a consent order requiring it to evaluate setting a drinking water standard based on the final IRIS toxicological review. EPA seeks OMB review of cybersecurity memo EPA has submitted to the White House Office of Management and Budget a notice for review titled “ Memorandum to State Drinking Water Administrators on Public Water System Cybersecurity .” The details of this memo are not publicly available, but we know that since 2021, the agency has been evaluating an approach to add cybersecurity to the sanitary survey program. In prior discussions, agency leadership indicated that this action would occur through a direct final interpretive rule, meaning there would be no opportunity for public notice or comment. Concerns with this approach were expressed in a December 2021 joint letter from AWWA, Association of Metropolitan Water Agencies (AMWA), Water Environment Federation (WEF), National Association of Water Companies (NAWC) and National Rural Water Association (NRWA). The primary points in that letter included recognition that state agencies have neither the capacity nor technical knowledge to properly examine cyber issues, and those agencies have limited ability to protect sensitive information. In addition, there are questions about statutory authority to impose new requirements via the sanitary survey program since evaluation of cybersecurity is explicitly included in §2013 of America’s Water Infrastructure Act of 2018 (AWIA), a provision that cannot be delegated to a primacy agency. This point was highlighted in a recent report prepared by EPA’s Inspector General that reviewed the Office of Water’s implementation of AWIA §2013. Following the conclusion of a year-long effort by an EPA-state workgroup on the issue, the Association of State Drinking Water Administrators concluded that “the sanitary survey program is an inadequate mechanism” to address cybersecurity and provided cautionary direction to EPA should it proceed with implementing this approach. No such collaborative engagement or options evaluation was offered to representatives of water utilities. AWWA and partner associations have requested a meeting with OMB to express concerns about the approach EPA proposed. EPA has not responded to requests to consider alternative approaches to enhance cybersecurity in the water sector, such as the coregulatory model that AWWA recommended in 2021, which is also supported by NAWC.