Key Updates on Water Quality Regulation Affecting Virginia€¦ · years with automatic renewals "if the water quality needs do not require more stringent limits." 8 CWA Coverage

Key Updates on Water Quality Regulation Affecting Virginia

Patrick J. Fanning

March 6, 2018

2

WOTUS

• Supreme Court Ruling

• Rule Delay – through Feb. 6, 2020

• New Rulemaking

White House Infrastructure Proposal

CWA Coverage of “Discharges of Pollution” via a Direct Hydrologic Connection to Surface Water

Federal Developments

3

James River Chlorophyll a Criteria

Shenandoah River Algae Litigation

Ammonia Criteria

General Assembly

• HB 1475 – Ammonia Criteria

• HB 1608 – WQIF for Ammonia

• HB 211 – Groundwater Withdrawal Permit Term Increase

• HB 297 – Agency Guidance into APA Process

State Developments

FEDERAL DEVELOPMENTS

5

WOTUS

Supreme Court Ruling

• On Jan. 22, 2018 the Supreme Court in National Association of Manufacturers v. Department of

Defense ruled that U.S. District Courts, not Circuit Courts, have jurisdiction over appeals on the

WOTUS rule.

• Important because it determines jurisdiction for future appeals

• Impacts on Stays – 6th Circuit; 8th Circuit

EPA Issues Rule Delay

• EPA issued rulemaking on Feb. 6, 2018 staying effective date of WOTUS through Feb. 6, 2020

• Challenges pending

6

WOTUS

New Rulemaking

• Two Step Process

• Step One: July 27, 2017 EPA and the Corps issued rulemaking reinstating definition of WOTUS prior

to 2015 WOTUS Rule

• Step Two: EPA and the Corps intend to pursue a public notice-and-comment rulemaking in which the

agencies would conduct a substantive reevaluation of WOTUS definition

• The Administration has previously stated that the new WOTUS rule could be expected to be released

as early as this month, though a more realistic timeframe is likely during this calendar year

• Pursuant to the Executive Order 13778, the rule is expected to adhere more closely to Justice

Scalia’s more restrictive “relatively permanent waters” definition, than to Justice Kennedy’s broader

“significant nexus to navigable waters” test

• Litigation cycle will start anew

7

White House Infrastructure Proposal

Highlights:

• $100 billion in Incentives Program funding to be split among EPA, DOT, and United States Army

Corps of Engineers for infrastructure projects, including "drinking water facilities, wastewater facilities,

and stormwater facilities";

• $50 billion for a Rural Infrastructure Program including for water, wastewater and stormwater

projects;

• $20 billion for a Transformative Projects Program that includes the clean water sector;

• Expanded eligibilities beyond the water/wastewater sector for Water Infrastruture Finance and

Innovation Act (WIFIA);

• A provision expanding National Pollutant Discharge Elimination System permit terms from 5 to 15

years with automatic renewals "if the water quality needs do not require more stringent limits."

8


EPA Federal Register Notice

• On February 20, EPA issued notice requesting comment on its previous statements regarding the

CWA and whether pollutant discharges from point sources that reach jurisdictional surface waters via

groundwater or other subsurface flow that has a direct hydrologic connection to the jurisdictional

surface water may be subject to CWA regulation.

• Previous statements:

– EPA has previously stated that pollutants discharged from point sources that reach jurisdictional

surface waters via groundwater or other subsurface flow that has a direct hydrologic connection to

the jurisdictional water may be subject to CWA permitting requirements.

– EPA has not stated that CWA permits are required for pollutant discharges to groundwater in all

cases, but rather that pollutants discharged from point sources to jurisdictional surface waters that

occur via groundwater or other subsurface flow that has a direct hydrologic connection to the

surface water may require such permits.

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EPA Federal Register Notice - Questions

• Should EPA clarify or revise statements

• EPA seeks comment on whether subjecting such releases to CWA permitting is consistent with the

text, structure, and purposes of the CWA

• If EPA has the authority to permit such releases, EPA seeks comment on whether those releases

would be better addressed through other federal authorities as opposed to the NPDES permit

program

• Are such releases adequately through existing state statutory or regulatory programs or through other

existing federal regulations and permit programs – e.g. state underground injection control

regulations promulgated pursuant to the Safe Drinking Water Act

10


EPA Federal Register Notice

• Cites split on issue in courts

• 9th Circuit - Haw. Wildlife Fund v. Cty. of Maui, No. 15–17447, slip. op. at 19 (9th Cir. Feb. 1, 2018)

• Pending coal ash litigation – TVA, Dominion

• Potentially affected entities – States, tribes, territories, federal agencies, industries (POTWs not

listed)

• Comment deadline May 21, 2018

STATEDEVELOPMENTS

12

James River Chlorophyll a Criteria

• DEQ has proposed/recommended alternative Criteria and Assessment methods based on data

provided by the Stakeholder Advisory Panel and data collected over the past five years

• DEQ has still not issued conversion from Chlorophyll a concentration to point source loads – awaiting

VIMS model run scenario result confirmation/calibration

• Some criteria become less stringent, some become more stringent (tidal fresh Summer and Spring)

• Changes to the Assessment method - moving to a six-year geometric mean

• The Stakeholder Advisory Panel technical subcommittee will meet soon to review VIMS model

calibration, baseline data set and baseline hydrology

• Mid year, review outputs of subcommittee and complete scenario runs

• DEQ is targeting having a package to present to the State Water Control Board by its Fall or End of

Year meeting

13


• Shenandoah and Potomac Riverkeepers and the Potomac River Smallmouth Club challenged EPA’s

approval of Virginia’s CWA 303(d) list of impaired waters in U.S. District Court for the District of D.C.

• Groups claim that Virginia failed to evaluate data and information showing impairments to the North

Fork, South Fork, and main stem of the Shenandoah River and their tributaries due to algae blooms

resulting from nutrient over-enrichment, and as a result failed to add the Shenandoah River to the

impaired waters list

• Claim that EPA’s approval of Virginia’s Integrated Report violated the CWA because EPA relied on

Virginia’s determination that it is too challenging to apply Virginia’s water quality standards to algal

blooms

• EPA failed to require that the Shenandoah River be listed as impaired by excessive algae and also

failed to promulgate a Total Maximum Daily Load (TMDL) for the pollutants causing the impairment in

violation of its obligations under CWA § 303(d)(2)

Riverkeepers’ Submissions

14

15


• Potomac Riverkeeper and the Shenandoah Riverkeeper submitted public comments with evidence

and pictures showing the extent of algal growth and its impairment of the Shenandoah River

• Allege violations of designated uses for recreation and aquatic life and the narrative water quality

criteria supporting those designated uses

• DEQ classified seven assessment units totaling 25 miles of stream as Category 3C waters in the

2014 Integrated Report

– Category 3C waters are waters for which there is “data collected by a citizen monitoring or another organization

indicating water quality problems may exist but the methodology and/or data quality has not been approved for a

determination of support of designated use(s).”

– DEQ has committed to developing a field methodology to evaluate impacts of algal growth and will prioritize

monitoring of these segments

• Ask the court to find that EPA’s approval of the 2014 Integrated Report was arbitrary and capricious,

an abuse of discretion, and beyond EPA’s statutory authority under the APA

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• EPA Motion for Summary Judgment and Opposition to Plaintiffs’ Motion for Summary Judgment

• EPA argues that it was reasonable for it to rely on Virginia’s determination that the data presented by

Plaintiffs to support an impairment listing for the entire Shenandoah River was not a reliable basis for

listing the entire river as impaired

• EPA states that it is lawful to rely on Virginia’s judgment that additional information is needed to make

an impairment determination and that Virginia has committed to taking further steps to evaluate the

impacts of algae on the Shenandoah River

• The Riverkeepers will file reply briefs by March 12

• A hearing date has not been set

17

Ammonia Criteria

• EPA finalized new ammonia criteria in 2013 (last updated in 1999).

• Nearly twice as stringent as previous criteria – due to inclusion of toxicity data for mussels and snails

(assumed to be in all perennial freshwater streams)

• DEQ pushed back adoption from the rest of the Triennial Review of Water Quality Standards to allow

time to explore implementation flexibilities – compliance schedules beyond permit term

• Facilities must demonstrate a longer period is necessary, compliance required “as soon as possible”

but not later than the applicable statutory deadline under the CWA

• Facilities can also demonstrate an absence of sensitive species

• Expected capital costs to POTWs $512 Million (VAMWA) – doesn’t consider industrial or commercial

facilities

• Proposed regulations published in Virginia Register on Sept. 18, 2017

• Comment Period ended Dec. 28, 2017

18

General Assembly

• HB 1475 (Poindexter) – Ammonia Criteria.

• Directs the State Water Control Board not to adopt certain EPA freshwater ammonia water quality

criteria unless the Board includes in such adoption a phased implementation program consistent with

the CWA that includes consideration of infrastructure needs of the local community and several other

factors

• The bill also directs the DEQ to (i) identify any other states that have adopted the Criteria as of July

1, 2018; (ii) identify those procedures for the implementation of the Criteria that will minimize the

impact of such implementation on Virginia sewerage systems while complying with the Clean Water

Act; and (iii) report findings to House and Senate by November 1, 2018

• The bill provides that the inclusion of the implementation program in the Board's current regulatory

action shall not require reproposal of the current action

• Passed House (unanimously), Reported from Senate Agriculture, Conservation, and Natural

Resources (unanimously)

19

General Assembly

• HB 1608 (Poindexter) – WQIF for Ammonia.

• Authorizes DEQ Director to issue grants from the Virginia Water Quality Improvement Fund for water

quality improvements, including cost effective technologies to reduce loads of total phosphorus, total

nitrogen, or nitrogen-containing ammonia, in order to meet certain requirements of ammonia-related

regulations that are more stringent than those adopted by the State Water Control Board

• The bill also requires the DEQ to prepare a preliminary estimate of the amount and timing of Water

Quality Improvement Grants required to fund projects to reduce loads of nitrogen-containing

ammonia at certain levels based on an estimate of the anticipated range of costs for all POTWs if the

Board were to adopt EPA’s 2013 criteria

• Passed House (unanimously), Reported from Senate Agriculture, Conservation, and Natural

Resources (unanimously)

20

General Assembly

• HB 211 (Wright) – Groundwater Withdrawal Permit Term Increase

• The bill lengthens from 10 years to 15 years the maximum term of a groundwater withdrawal permit

issued by the State Water Control Board (SWCB). The bill also lengthens the maximum term of a

groundwater withdrawal special exception from 10 years to 15 years

• An enactment clause was added increasing the permit fee for a new or reissued individual

groundwater withdrawal permit from $6,000 to $9,000 effective January 1, 2019

• Passed House unanimously and Senate (39-1)

21

General Assembly

• HB 297 (Bulova) – Brings Agency Guidance into APA Process.

• Bill to bring agency guidance documents into the Virginia Administrative Process Act (APA) process

• As introduced, looked at economic impact of guidance, if insignificant, the agency must certify that

the guidance does not exceed statutory authority or agency regulations, and the guidance is subject

to a 30-day public comment period through publication in the Virginia Register. For guidance

documents with a significant economic impact, the public participation guidelines in the APA will apply

• Substitute language that guidance documents do not include agency (i) rulings and advisory

opinions, (ii) forms and instructions, (iii) bulletins and legislative summaries, (iv) studies and reports,

and (v) internal manuals and memoranda

• Revised version: All guidance documents subject to a 30-day public comment period, including

publication in the Virginia Register. Guidance is to be delayed 30 days if an agency receives

comments that the proposed guidance is contrary to law or regulation or not exempt

• The agency must respond to comments during the 30-day period

• Passed House and Senate unanimously

QUESTIONS? [email protected]

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Documents

Key Updates on Water Quality Regulation Affecting Virginia€¦ · years with automatic renewals "if the water quality needs do not require more stringent limits." 8 CWA Coverage