U.S. Senate committee ponders two water bills The U.S. Senate Environment and Public Works Committee has floated two draft bills addressing water infrastructure and a host of other issues for comment. Both bills could be considered extensions of similar legislation enacted in 2018. The first, America’s Water Infrastructure Act of 2020 , is largely a regular, two-year water resources development bill with some additional actions. One significant item is a reauthorization of the Water Infrastructure Finance and Innovation Act (WIFIA) that AWWA conceived in 2014. The legislation would make one administrative change to reduce the number of credit ratings required for a WIFIA loan from two to one, a change that AWWA sought. U.S. Environmental Protection Agency (EPA) infrastructure loan staff told us they would be fine with such a change. The second, the Drinking Water Infrastructure Act , provides continued funding for programs addressing lead and per- and polyfluoroalkyl substances (PFAS). It also makes some administrative changes to the Drinking Water State Revolving Fund (DWSRF) and creates a modest grant program for infrastructure needs and preconstruction activities. Rather than hold a hearing on the bills, the committee accepted comments from five selected stakeholders on April 22 and is accepting comments from all other stakeholders until close of business today. AWWA’s Water Utility Council is submitting comments. CDC updates return-to-work guidance The U.S. Centers for Disease Control and Prevention (CDC) updated its guidance to ensure the safety of building water systems and devices after a prolonged shutdown. The topic has received some media coverage, as seen in last week’s Reuters story , as those interested in Legionella exposure work to raise awareness about this potential issue. Beyond the CDC guidance, there are not specific federal protocols for the current situation, though several research groups focused on building water quality, including ESPRI , Purdue and Virginia Tech , have put forward information to help with decision-making. Some states have also been developing guidance as well. AWWA has information on this topic available on its Coronavirus Resource page . CDC seeks input on dropping lead reference level CDC’s newly convened Lead Exposure and Prevention Advisory Committee wrestled this week with whether to revise its blood lead reference level (currently 5 µg/dL). By using more recent data, CDC would lower the reference level to 3.5 µg/dL or lower. CDC’s Board of Scientific Councilors already recommended transitioning to the 3.5 µg/dL value in 2017. However, due to the challenges associated with using a reference level at such a low value, CDC has not made the change. A separate but related theme in the day-long meeting was shifting away from presenting lead as a risk to children but rather presenting lead as a health risk to people of all ages. Major actions impact ‘Waters of the U.S.,’ Clean Water Act Two recent federal actions will impact the definition of “Waters of the United States,” a regulation that defines where the Clean Water Act applies. These actions will also solidify past practices for controlling indirect discharges that go through groundwater by EPA. On April 21, EPA published the final Navigable Waters Protection Rule in the Federal Register . Although the rule was announced and posted in prepublication form on EPA and the U.S. Army Corps of Engineer’s websites in January, this action makes the publication official and starts the clock toward implementation. Compared to the Obama administration’s rule, which never went into full effect, the revised rule places fewer waters under federal jurisdiction, deferring instead to state regulations. The revised rule includes four categories of waters for regulation and excludes 12 categories. Litigation of this rule is all but certain, meaning the timeline for implementation may exceed the 60-day period in the official notice. In a separate action, the U.S. Supreme Court on April 23 decided in County of Maui, HI v. Hawaii Wildlife Fund, et al. , that the Clean Water Act can apply to discharges to groundwater in select situations if the discharge is the “functional equivalent” to a jurisdictional water. Although groundwater itself is not part of the Clean Water Act, the case in question involved the discharge of treated wastewater into groundwater that was then traced to the ocean. In the majority opinion, the court noted that the Clean Water Act’s wording requiring regulation of a discharge “from any point source” to “navigable waters” includes going through an otherwise non-jurisdictional conveyance such as groundwater. Although EPA and state agencies have issued NPDES permits for some such situations in the past, it will now be up to those agencies and potentially the court system to identify which discharges meet the requirement of being a “functional equivalent” to a direct discharge. EPA extends comment period on proposed determinations On March 10, EPA published the Preliminary Regulatory Determinations for Contaminants on the Fourth Drinking Water Contaminant Candidate List in the Federal Register . The proposal would initiate the regulatory process for two perfluoroalkyl substances (PFAS), not initiate regulatory development for six other contaminants. Initially, EPA’s deadline for public comments was May 11, following the publication of the rule. AWWA, in collaboration with the Association of Metropolitan Water Agencies, requested that EPA extend the public comment period. On April 24, EPA filed an update to the Federal Register extending the comment period by 30 days to June 10. NRCS announces conservation projects, reuse innovation funds The Natural Resource Conservation Service (NRCS) announced its latest project awards under the Regional Conservation Partnership Program. Given the 2018 Farm Bill’s requirements for NRCS to include source water protection in its priorities, several of these projects focus on or contribute to it at scale. For example, the Lake Springfield Source Water Protection Project in Illinois will invest more than $2.5 million over the next five years to reduce nitrogen, phosphorous and sediment loads. The goal is to remove the area’s primary water supply from the 303(d) impaired waters list. Similarly, the East Locust Creek Source Water Protection Project in Missouri will invest more than $1 million over five years to protect the forthcoming East Locust Creek Reservoir, which will provide drinking water to 10 counties. The awards can be viewed in an interactive map or in list format . Additionally, on April 28, NRCS issued a call for proposals to its Conservation Innovation Grants program, which has $15 million available for applications through June 29. Projects involving innovations in water quality and water reuse on agricultural lands are sought, including source water protection projects. More information can be found on Grants.gov . There will also be a webinar on May 13 at 3 p.m. ET . AWWA members can contact Adam Carpenter in the AWWA DC office for more information or assistance with an application. Court action threatens Nationwide Permit 12 In 2017, the U.S. Army Corps of Engineers reissued all nationwide permits (NWP) and determined that an Endangered Species Act (ESA) consultation with the U.S. Fish and Wildlife Service and National Marine Fisheries Service (the “Services”) was not required. NWP 12 is the main permit used for construction, operations and maintenance of all types of utility lines (e.g., pipelines, electric transmission lines, etc.). On April 15, the Montana federal district court issued an Order in Northern Plains Resource Council v. U.S. Army Corps of Engineers , No. 4:19-cv-00044-BMM (D. Mont.) (NPRC v. Corps). It was determined that the Corps’ failure to consult under ESA Section 7 means the permit is not valid and the Corps may not authorize work under the terms and conditions of NWP 12. The court has ordered an expedited briefing to be completed by May 8, but this Order creates uncertainty for projects requiring NWP 12 authorization. AWWA provides updated overview of regulations AWWA’s most recent Regulatory Overview from its DC office provides an update of current federal activities affecting the drinking water community, plus insights on policy changes coming. This latest update highlights recently passed or current major legislation in development. It also provides information on the background and status of regulatory activities under the Toxic Substances Control Act, Clean Water Act and the Safe Drinking Water Act, including the recently proposed drinking water regulatory determinations.