Federal shutdown impacts drinking water sector The partial shutdown of the federal government may not be having an immediate, dramatic effect on the drinking water sector, but depending on how long it goes on, it could have some long-term effects. Among the legislation being held up in the dispute over fiscal year 2019 funding and a wall on the southern U.S. border is the bill that would fund the U.S. Environmental Protection Agency (EPA). EPA employees were on the job until agency funding ran out Dec. 28. Drinking water in the United States is regulated under the Safe Drinking Water Act (SDWA) under the jurisdiction of EPA. Under the SDWA, states are the primacy agents for administration of the SDWA once they have adopted standards, at least as strict as federal standards. (Wyoming and the District of Columbia are the only states/governing entities that do not have primacy.) Therefore, enforcement of the SDWA will go on largely as before. That said, state governments do count on assistance for that enforcement and general administration of the SDWA via the federal Public Water System Supervision (PWSS) grant program, plus set-asides in the annual grants for the state revolving loan fund (SRF) programs for drinking water and wastewater and from EPA regions. The PWSS spreads about $100 million across the country to state agencies and certain territories. Legislation passed in the last session of Congress increased the authorized amount of PWSS funding to $125 million. Infrastructure finance Speaking of the SRFs, sources tell us states are still drawing on FY2018 funds, but if the shutdown drags on, states will start feeling the pain this summer. The SRFs are, as the name says, revolving loan programs, meaning that as loans are repaid, funds are deposited back into state accounts. That will help cushion the effects of a prolonged federal shutdown, but after too much time, there will be pain. S. 3021, America’s Water Infrastructure Act of 2018 , authorized $50 million for three new grant programs in fiscal year 2019 - Assistance for Small and Disadvantaged Communities Grant, Reducing Lead in Drinking Water Grant, and Lead Testing in School and Child Care Program Drinking Water Grant. Of these three grant programs, the application process had begun only for the lead testing grant program. Letters of interest are due in February. EPA told its National Drinking Water Advisory Council in December that it would distribute guidance for the other two programs this month. The Water Infrastructure Finance and Innovation Act (WIFIA) program is strictly a federally administered program. That means not only are there no new funds for additional loans right now, but administrative work on existing applications appears to have come to a halt. AWWA staff placed a series of phone calls to WIFIA staff and heard voicemail messages saying that those federal employees will be out of the office for the duration of the shutdown. Rule development When EPA decision-makers are not at work, it further complicates the already challenging administrative process for developing regulations. The agency has statutory and legal deadlines that are not altered by the shutdown. Consequently, EPA will either need to find administrative shortcuts or miss court-ordered deadlines. Meeting the New York Southern Circuit’s expectations for proposing a perchlorate standard is one example. EPA staff were already wondering how they would meet the statutory deadlines assigned to the agency in S. 3021, enacted late in the last Congress, and those fears were before the shutdown. Staff were concerned that a status-quo budget was inadequate to the task. For new requirements, in particular those regarding security and resiliency, water systems still need to move forward to meet statutory deadlines. AWWA’s standards provide a foundation for utilities to take steps to meet the tight statutory deadlines for risk assessments and emergency response plans. EPA has identified revising the Lead and Copper Rule and addressing per- and polyfluoroalkyl substances as priorities for this year. Neither of these activities have specific deadlines that must be met, but administration officials are aware of the need to act. Just as in rule development, the shutdown is delaying steps underway to shift the agency’s enforcement priorities. This transition was already expected to take the better part of this year, so while immediate effects will not be visible, there will be additional delay in seeing impacts. EPA appropriations among the shutdown hostages As mentioned, appropriations legislation funding EPA for FY2019 is among the bills being held hostage in the border wall dispute. It would provide funding for water infrastructure programs at levels equal to the previous year: $1.2 billion for the drinking water SRF, $1.7 billion for the wastewater SRF, $63 million for WIFIA. Overall EPA funding would be very close to the previous year, $8.8 billion. Much of the bill funds the Department of Interior. For the water community, key programs there include the U.S. Geological Survey’s groundwater and streamflow information programs. Funding for those would be $220 million, a 1 percent increase over FY2018. Sovereign immunity threatened in federal court case over lead Legal decisions are made based on the facts of a particular case, existing law and judicial precedents. Yet some decisions have impacts well beyond the immediate parties. This week the Sixth Circuit United States Court of Appeals found that inhabitants of Flint, Mich. during the lead crisis had the constitutional right to pursue legal action against both state staff and the City of Flint. The appeals court upheld a lower court ruling that the plaintiffs could continue to pursue their case despite immunity shields afforded public officials and sovereign immunity. The ruling emphasizes a citizen’s legal right to put facts into evidence in a court of law to have a claim evaluated. The events in Flint, and subsequent criminal prosecution of decision-makers and staff, have already led to an emphasis on exact compliance with regulatory text rather than using regulatory discretion. This latest decision has the potential to further focus state regulators and local government legal counsel on strict adherence to regulatory requirements. Senate confirms EPA officials; Trump formally nominates Wheeler The U.S. Senate confirmed the appointment of two top EPA officials just before the 115th Congress adjourned on Jan. 3. Alexandra Dunn, formerly EPA’s Region I administrator in Boston, is now assistant administrator for the Office of Chemical Safety and Pollution Prevention. Before joining EPA, Dunn was executive director for the Environmental Council of the States. Senators also confirmed William (Chad) McIntosh, formerly of the Ford Motor Co., as assistant administrator for the Office of International and Tribal Affairs. He worked in environmental compliance for Ford for almost 20 years. Before that McIntosh was deputy director for the Michigan Department of Environmental Quality. President Trump on Wednesday formally nominated acting EPA Administrator Andrew Wheeler to become administrator of the agency. He had signaled his intention to do this in November but made it formal this week. The Senate Committee on Environment and Public Works is to hold a hearing on this nomination next Wednesday. With the Republicans holding a 53-47 edge in the Senate, the Senate will likely confirm Wheeler. However, Democrats can put up procedural hurdles to slow the process. With Dunn’s nomination, Democrats agreed to not slow the process after Wheeler committed to working with the committee and possibly revising programs governing regulation of chemicals under the reformed Toxic Substances Control Act. For Wheeler’s nomination to proceed, Democrats may ask for something similar, such as a revisiting of the agency’s efforts to revise air toxics policy initiated in the Obama administration. Fluoridation remains an active topic No new news on when the Centers for Disease Control will finalize its recommended operational range of 0.6 – 1.0 mg/L around the optimal target fluoride dose of 0.7 mg/L, but fluoridation is once again a topic of interest this year. Of particular interest is a peer-reviewed research study by Jennifer Meyer, et al, which investigated the effect of ending community-wide fluoridation in Juneau, Alaska. Meyer found there was a discernible increase in cavities in at least this community five years after cessation of fluoridation. Meanwhile, just this week in Kentucky, legislators started the new year introducing legislation (HB97 and SB37) to clearly allow individual communities’ governing boards to choose not to fluoridate. Current Kentucky state law requires fluoridation by all community water systems serving 1,500 persons or more. New Hampshire proposing MCLs for PFAS New Hampshire’s Department of Environmental Services is proposing drinking water maximum contaminant levels (MCLs) and ambient groundwater quality standards (AGQS) for four per- and polyfluoroalkyl substances – perfluorooctanoic acid (PFOA), perfluorooctanesulfonic acid (PFOS), perfluorononanoic acid (PFNA) and perfluorohexanesulfonic acid (PFHxS). The proposed MCL and AGQS levels are as follows: PFOA (38 ng/L), PFOS (70 ng/L), PFOA & PFOS (combined) (70 ng/L), PFHxS (85 ng/L), and PFNA (23 ng/L). The summary report supporting the MCL proposals notes that these proposed standards are intended to protect against long-term, chronic exposure. They are to apply to community and non-transient non-community water systems but not to transient non-community water systems. New Hampshire also bluntly assesses its own efforts, noting that the state did not have the resources to conduct the benefit-cost analysis at a level comparable to an EPA analysis. This report, Michigan’s review of PFAS risk management actions, and a summary prepared by the Silent Spring Institute all point to significant variability in risk assessment assumptions and relative prioritization of PFAS compounds by individual states. In its comments on EPA’s draft toxicity assessment for perfluorobutane sulfonic acid and GenX chemicals, AWWA will be emphasizing the need for EPA to better support water systems as the sector faces the communication challenge created by the varied state-by-state processes.