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EPA Regulations – What’s New & What’s Next?

July 20, 2012

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Increasing Rules,

Decreasing Budgets Presentation for NCSL July 20, 2012

by Steve Brown

Environmental Council of the States (ECOS)

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New EPA Rules to States

(Completed Actions with a "state impact" per Year)

Rules with a Minor State Impact

Rules with a Substantive State Impact

*Projected

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New EPA Rules to States vs Change in Categorical Grant

Budgets (Per Year)

Categorical Grants: Amount Changed Per Year Rules with a Substantive State Impact

*2012 Rules

Total is

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2007 2008 2009 2010 2011 2012*

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Substantive Rules Minor Rules

Cumulative New EPA Rules to States

(Completed Actions with a "state impact")

*Projected

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Cumulative New Rules vs Categorical Grant Budgets

Categorical Grants Minor Rules Substantive Rules * 2012 Rules Total is Projected

Conclusions

• the number of federal rules with a “substantive” impact

on states (and local governments) continues to

steadily rise.

• Federal financial support to implement these rules is

declining, meaning states have to pick up the cost for

these federal requirements.

• any decreases in state budgeting support exacerbate

this problem.

(for a list of the rules’ names, see separate Excel spreadsheet)

National Conference of State Legislatures

July 20, 2012

Key Federal Water Resources and

Quality Developments Alexandra Dunn

Executive Director & General Counsel

Association of Clean Water Administrators

• People polled care most about those environmental issues related to water quality protection

• 77% of respondents concerned with pollution of drinking water

• 79% worried about pollution of rivers, lakes and reservoirs

• http://www.gallup.com/poll/146810/water-issues-worry-americans-global-warming-least.aspx

Water Ranks at Top in EPA ‘11 Gallup Poll

Hot Topics • Nutrients

• CWA Jurisdiction

• Integrated Planning

• E-Reporting

• TMDLs

• Water Quality Standards Updates

• Recreational Water Criteria

• Water Quantity

• Clean Water Funding

Where are we today?

About 40% of river and stream miles and 60% of lake and reservoir acres are impaired

Nutrients • Nutrient Criteria

– Numeric Nutrient Criteria Implementation

– Role of Biocriteria in State Water Programs

– Independent Applicability

June & October 2011 Congressional testimony on need for state flexibility in addressing nutrients, using weight-of-evidence approaches, limits of IA

– See Maine, Ohio, Florida, Montana, Colorado

• Agriculture Nutrient Initiatives – MN/EPA/USDA : MN AG Water Quality Certification Program

– NRCS National Nutrient Management Standard (590)

– USDA's National Water Quality Initiative (NWQI), focusing on 157 watersheds in the U.S. in 2012.

ACWA 2012 Survey • As an aquatic ecosystem can be

healthy under varying levels of nutrients, managing nutrient levels requires unique and diverse strategies.

• States make use of a variety of tools beyond water quality standards and TMDLs. – State level effluent standards,

technology requirements, BMPs, nutrient trading

– A rich mosaic of solutions

– A variety of nutrient accountability frameworks

Scope of State Nutrient Programs

• 77% of programs are state-wide in scope

• Combined focus programs use a variety of methods to assess and address nutrient impairments.

Combined (H20Body, Indicator, Source) Source Based (eg, POTW) Indictator (N, P, Biology)

Waterbody Type Only

Program Organization

CWA Jurisdiction

2011 Proposed CWA Jurisdiction Guidance

Subject to Significant Nexus Analysis:

• Tributaries to TNWs or interstate waters;

• Wetlands adjacent to jurisdictional tributaries to TNWs or interstate waters; and

• Waters that fall under the

“other waters” category

of the regulations.

– Physically proximate

other waters

– Non-physically

proximate other waters

2011 Proposed CWA Jurisdiction Guidance

Generally Not Jurisdictional:

-Wet areas that are not tributaries, open waters, or wetlands

-Waters excluded by regulation

-Waters without “significant nexus”

-Artificial lakes, ponds, pools,

ornamental waters, and

artificially irrigated areas

-Erosional features that are not wetlands or streams (e.g. gullies)

Integrated Planning & Permitting Elements

• Stormwater, wastewater, drinking water (?) obligations – sequence and prioritize investments

• Planning, but how to execute? – Water quality, human health, regulatory issues

• Plan to evaluate existing systems & performance • Include Stakeholder involvement • Evaluate and select alternatives • Measure success • Second hearing 7/25

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E-Reporting Rule

• Rule will identify the essential information that EPA needs to receive electronically, primarily from NPDES permittees to manage federal NPDES program

• Seek to ensure available, accurate, timely, and nationally consistent facility information

• Proposed rule sent to OMB for regulatory review (12/11)

Water Quality Standards Regulation Revisions

• WQS Regulation – 40 CFR Part 131

• Current WQS Regulation last revised in 1983

• EPA planning to revise in an effort to clarify several key program areas, as well as provide enhanced water resource protection and clearer/simplified requirements

• Rule was received by OMB in Nov.; projected proposal public release – 3/12

Recreational Water Criteria

• Designed to protect swimmers

• Existing criteria ~ 20 years old

• EPA plans: Propose & finalize new criteria in 2012

• Draft: Dec. 2011 http://www.regulations.gov/#!docketDetail;D=EPA-HQ-OW-2011-0466

• State concerns: insufficient inland data

TMDL 10 Year Vision

• Initiative aimed at updating the TMDL program to improve state implementation of TMDLs

• EPA focused on developing several guidance documents to assist states with TMDL development & implementation

• EPA working with states to revise program to “maximize water quality protection”

TMDLs • EPA review and approval of

a TMDL is a final agency action

• Recovery potential screening

• http://water.epa.gov/lawsregs/lawsguidance/cwa/tmdl/recovery/index.cfm

• Adaptive management

• Multi-jurisdictional TMDLs

• Delisting memo

TMDLs

Water Quantity • At least 36 states

are expected to face water shortages within the next five years, according to U.S. government estimates.

• Combined forces of climate change, unsustainable population growth, and agricultural practices

Funding Picture in Million $

2009 2010

2011 2012

2013 (Pres) 2013 HR

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1,000

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SRF DWSRF CW106 CW319

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2010

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2013 (Pres)

2013 HR

Alternative Funding Mechanisms

• Clean Water Trust Fund

• Infrastructure Bank

• WIFIA

Questions?

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