Biden Administration reviewing water regulations Shortly after being sworn into office on Wednesday, U.S. President Joe Biden was expected to sign an executive order to have federal agencies review certain environmental rules for potential revisions, including significant drinking water regulations developed late in the Trump Administration. These include the revised (published in the Federal Register on Jan. 15), the perchlorate rule (July 21), the latest definition of the “Waters of the U.S.” (April 21), and a final rule published Jan. 13 by the Army Corps of Engineers for its Nationwide Permit program under the Clean Water Act. This rule contained changes AWWA opposed (see the Jan. 8 issue of the Insider ). The new administration will review a host of other rules related to the environment and climate change issued by the departments of Agriculture, Interior, Defense, Commerce, Labor, Justice and Energy, plus the Council on Environmental Quality. Lead and Copper Rule published in Federal Register With its publication in the Federal Register , it would literally take an act of Congress or another rulemaking by the new presidential administration to prevent the Lead and Copper Rule Revisions just finalized by the Trump Administration from going into effect. With compliance deadlines beginning Jan. 16, 2024, there is time for such a new rulemaking to occur or for litigation to alter the course of implementation. There are already three petitions for review (NRDC, Sierra Club and Earthjustice) filed in the U.S. Court of Appeals for the District of Columbia Circuit. While the final rule differs from the proposal in some respects, it is important that systems with lead service lines recognize that compliance data for lead will be based on fifth-liter samples with sampling rounds beginning in 2025. Meanwhile, at EPA headquarters… U.S. President Biden’s nominee for administrator of the U.S. Environmental Protection Agency (EPA), Michael Regan, North Carolina’s environment secretary, is still awaiting confirmation by the U.S. Senate. In the meantime, Biden’s choice of acting head of EPA is Jane Nishida, formerly principal assistant deputy administrator in the agency’s international affairs office. Reports circulating in Washington say that Radhika Fox, chief executive officer of the U.S. Water Alliance, will be nominated to head EPA’s Office of Water. That has not been formally announced, however. Andrew Sawyers, director of the Office of Wastewater Management, is currently acting head of the water office. Final days of Trump Administration see flurry of PFAS action In the final days of the Trump Administration, EPA released five actions aimed at managing per- and polyfluoroalkyl substances (PFAS). In alignment with the agency’s PFAS Action Plan, these actions address research gaps, drinking water risks and source protection/remediation efforts. On Tuesday, EPA released two pre-publication actions under the Safe Drinking Water Act, a Fifth Unregulated Contaminant Monitoring Rule (UCMR 5) proposal and final regulatory determinations for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). UCMR 5 is expected to dramatically expand the national database for PFAS in drinking water by requiring monitoring of 29 PFAS, with minimum reporting levels generally below 10 ppt based on EPA Methods 533 and 537.1. The final regulatory determination, when effective in the Federal Register , will initiate a two-year timeline for the agency to evaluate and propose drinking water regulation for PFOA and PFOS. While the draft determination requested input on additional PFAS, the agency has determined at this time that additional data is needed before such determinations can be made. EPA does note, however, that a determination for additional PFAS, with adequate information, may be made before another regulatory determination is made. UCMR 5 monitoring data, ongoing toxicity assessments , and the final toxicity assessment for perfluorobutanesulfonic acid , published Jan. 14, may all contribute to such determinations. Beyond drinking water, EPA also initiated two efforts to prevent PFAS contamination and address PFAS in the environment. On Jan. 15, EPA released a pre-publication notice initiating a data collection process to support the development of Effluent Limitations Guidelines for certain PFAS discharges . The notice highlights facilities in the “Organic Chemicals, Plastics and Synthetic Fibers” point source category but broadly requests detailed information about the facilities and processes that may be involved with the formulation or use of PFAS in manufacturing. Another notice left for the Biden Administration to consider solicits public comment to inform designating PFOA and PFOS as hazardous substances in addition to 23 other PFAS. Agricultural conservation program gets final rules The U.S. Department of Agriculture’s Natural Resources Conservation Service published the final conservation program rules on Jan. 15 for the Regional Conservation Partnership Program ( RCPP ). The RCPP is funded at around $300 million per year and is one of the key opportunities for water utilities to engage with NRCS and agricultural partners to address source water protection concerns at the watershed scale. Based partially on AWWA comments , the final version of this rule puts a larger emphasis on the priority of source water protection. AWWA’s Source Water Protection page describes the RCPP in more detail. Interested utilities can reach out to their NRCS State Conservationist or Adam Carpenter in AWWA’s Washington, D.C., office. AWWA, others urge Congress to ‘Build by the 4 th ’ AWWA has joined nearly 200 other organizations in urging Congress to “to enact a fiscally and environmentally responsible infrastructure package by the Fourth of July.” The “Build by the 4 th ” campaign, hosted by the U.S. Chamber of Commerce, also urges Congressional action to stimulate the economy, create middle-class jobs, address climate change, promote fiscally and environmentally responsible policies, improve federal project approvals and address the “digital divide.” “It seems each Congress and every new Administration includes infrastructure as a top priority,” according to the effort’s website. “Despite broad support from diverse coalitions, however, too often they fail to act. Our nation must launch a massive investment program in transportation, energy, water and communications technologies.” EPA invites 55 projects to apply for WIFIA loan EPA announced that 55 new water infrastructure projects from 20 states have been invited to proceed to the formal application phase for obtaining a loan under the Water Infrastructure Finance and Innovation Act (WIFIA) program using federal fiscal year 2020 funds. In this latest round of WIFIA invitations, projects range in scope from traditional drinking water and wastewater infrastructure renewal to efforts to replace lead service lines, treat PFAS and provide aquifer storage. Together, the projects will apply for about $5 billion in loans, which will translate to $12 billion in water infrastructure investment since WIFIA supports up to 49 percent of a project’s costs. Obtaining a WIFIA loan is a two-step process. Interested parties fill out an online “letter of interest.” This begins a dialogue with EPA staff. Then EPA invites those projects most likely to qualify for a loan to proceed to the application phase. EPA offers a series of webinars explaining the program. EPA issues Clean Water Act financial guidance EPA released “ Financial Capability Assessment Guidance for Clean Water Act Obligations ” in a pre-publication form Jan. 14. While it specifically applies to certain Clean Water Act obligations, this guidance is a considerable step forward in assessing affordability because it suggests the use of metrics are more likely to identify impacts to lower income households (the lowest quintile) than exclusively using median household income. This guidance comes after recommendations to EPA from a National Academies of Public Administration report and a subsequent report prepared for AWWA, NACWA and WEF. The guidance was not published in the Federal Register prior to the transfer to the Biden Administration, and therefore may be delayed or modified before going into effect. Drought.gov relaunched with additional tools and data The National Integrated Drought Information System (NIDIS) has re-launched drought.gov with additional features, tools and data, including a number of AWWA products in its water utilities section. Designed to assist different sectors impacted by drought, the site now features information tailored to various entities including water utilities. Maui decision spurs new NPDES guidance EPA issued a Federal Register notice on Thursday intended to assist EPA regions, state NPDES (National Pollutant Discharge Elimination System) offices and potential permittees in instances where a NPDES permit might be necessary for discharges to groundwater that are a “functional equivalent” to a direct discharge. The agency published an associated guidance memorandum for this Jan. 14. The memo is titled “Applying the Supreme Court’s County of Maui v. Hawaii Wildlife Fund Decision in the Clean Water Act Section 402 National Pollutant Discharge Elimination System.” Although NPDES only applies to certain discharges to surface water, the Maui decision sets forth a series of considerations for when a discharge to groundwater might also require a permit. Although the guidance was published, it is likely the Biden Administration will rescind this guidance and reissue a new one. Regardless of the content of the final guidance, this issue will remain on the agenda and it is expected that a limited number of situations will trigger these provisions.