Category Archives: Clean Water Act

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Peer review legislation does not comply with Clean Water Act, EPA says

EPA-building-signThe Environmental Protection Agency (“EPA”) recently sent a letter to Utah’s Division of Water Quality, which noted that the proposed legislation to make the division’s actions subject to an independent peer review did not comply with the Clean Water Act (“CWA”).  The letter warned that, if the bill was passed without changes, then the federal government might step in to manage water in the state of Utah.

The bill at issue, SB 110, entitled Water Quality Amendments, seeks to establish an “independent peer review process for challenges made to proposals from the Division of Water Quality.”

Initiating the Peer Review Process

Specifically, the proposed legislation requires that the director of the Division of Water Quality “initiate an independent peer review” when: 1) a party “challenges in writing a study or the technical or scientific data upon which a proposal is based and requests an independent peer review”; 2) “if the independent peer review is related to examining a technology based nutrient effluent limit, the challenging party provides written notice to the division requesting an independent peer review before the technology based nutrient effluent limit is adopted into a permit issued by the division”; 3) if the independent peer review is not related to examining a technology based nutrient effluent limit, the challenging party provides written notice to the division requesting an independent peer review related to a proposal before the proposal has been adopted by the division or the board”; 4) the challenging party agrees to provide the funding to pay for the independent peer review; and 5) the challenging party would be substantially impacted by the adoption of the proposal.

Furthermore, under SB 110, the director of the Division of Water Quality must ensure that the peer review is completed within one year, and that the panel conducting the peer review must have a “minimum of three experts … who are mutually agreeable to both the division and the challenging party.”  The panel shall allow for public comment and govern its review process according to the EPA’s Peer Review Handbook.  Finally, an independent review panel must issue a final written report detailing the findings of each panel member, and which is supported by a majority of the panel.

EPA’s Concerns Over the CWA

While reluctant to get involved in state legislative proceedings, the EPA said in its letter that SB 110 raised concerns that the proposed peer review rule did not meet the CWA’s requirements for public participation.  The letter reminded Utah lawmakers that “[s]ection 303(c) of the CWA requires states to ‘hold public hearings for the purposes of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards.’”  The EPA has said that SB 110’s requirement of written report from the independent peer review panel does not go far enough because it does not appear under the proposed legislation that the report will be made available to the public.

The EPA’s letter also said that SB 110, as drafted, violates section 402(b)(3) of the CWA because it limits public input into subsequent permitting decisions, while allowing only Utah Pollutant Discharge Elimination System (“UPDES”) permittees to challenge such proposals.  The EPA says specifically that paragraphs 7 and 8 limit public participation, and that, “[i]f these statutory effects occur outside the State’s standard permit process, S.B. 110 effectively ensures that the public is excluded from significant permit decisions without an opportunity for public comment or a public hearing in direct contravention of [section] 402(b)(3).”

Apart from the public participation issue, the EPA also said the proposed legislation would improperly exempt UPDES permittees from compliance from applicable technology based effluent limitations (“TBELS”) limits that are mandatory under the CWA.  According to the EPA, “In sum, it appears that S.B. 110 is not consistent with certain requirements of the [CWA] relating to water quality and standards, and may undermine the basis for Utah’s authorized UPDES program.”

Utah Audubon Council Speaks Out

In an article reported by the Salt Lake Tribune, Steve Erickson, a policy advocate for the Utah Audubon Council, said:

The peer review process can’t be the back door to trump the public process.  It can’t be used to trump permitting.  …  Everyone wants good science to be used; that’s not really the crux of the matter.  It’s how the process plays.

SB 110 has gone through three iterations in the Utah State Legislature, and is currently in the Utah House of Representatives after receiving a favorable recommendation and vote from the Utah Senate.  The Utah House Natural Resources, Agriculture, and Environmental Committee has referred SB 110 to the House Rules Committee for prioritization.

Utah Division of WAter Quality Touts SB 110

Walt Baker, director of the Utah Division of Water Quality, has said that SB 110 is novel legislation, and that only two other states, Minnesota and California, have enacted peer review statutes, and Utah’s proposal “dwarfs” both states’ provisions. If the Legislature adopts the bill, he said, Utahns will have to wait and see just how its actual implementation works.  “This is landmark,” he said.  “In my [31 years of] experience … this will be the most foundational change in the water quality program.”

While it remains to be seen whether SB 110 will successfully navigate its way through the Utah House, and whether the EPA will be happy with its final iteration, one thing is clear: the EPA is not in favor of a peer review process that limits public participation and allows or certain exemptions in contravention of the WCA.  Compliance with the WCA is mandatory in the eyes of the EPA.

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Clean Water Act section 404(f) “interpretive rule” withdrawn after NMPF objects

National-Milk-Producers-Federation-logo-ApprovedIn response to objections raised by the National Milk Producers Federation, the Environmental Protection Agency (“EPA”) has withdrawn an interpretive rule regarding when farmers must seek Clean Water Act permits for a laundry list of farming activities taking place near wetlands.  The rule specifically stated that farmers were only exempt from needing to obtain Clean Water Act permits for certain farming practices if they complied with the National Resources Conservation Service (“NRCS”) technical conservation standards.

The EPA’s withdrawal of the rule came after the National Milk Producers Federation (“NMPF”) requested that the rule be withdrawn.  In a letter to the EPA, NMPF complained that “neither the proposed rule defining waters of the United States nor the interpretive rule explaining the availability of an exemption from dredge and fill permitting requirements for producers who install certain conservation practices according to NCRS standards meets the test of effectively protecting water quality.”

According to NMPF, under the interpretive rule, “producers may qualify for section 404 exemption by implementing one of 56 conservation practices included on a list published by the EPA in conformance with NCRS technical standards.”  Thus, the “[t]echnical standards produced by NCRS now form the foundation for the only [interpretive rule] published on how to gain a 404 exemption for normal farming practices,” NMPF said.  However, prior to the release of the interpretive rule, “404 exemptions were granted without reference to the NCRS technical standards.”

As an example of how the new interpretive rule would impact farmers, NMPF cited the practice of harvesting hay.  There, NMPF said that after the interpretive rule “a producer apparently can only gain a 404 exemption by following” a certain NCRS conservation practice standard.  The NCRS standard is approximately four pages long “contains criteria for timing of harvest (no compromising plant vigor and stand longevity); for mandatory recommendations for optimum moisture content and levels as well as methods and techniques to monitor and/or determine moisture content and levels; for length of cut as well as the converse for stubble height; for a bar on contaminants.”  As a result of the NCRS standards, farmers will be required to follow the NCRS standards or they run the major risk of failing to qualify for a 404 exemption.

In conclusion, NMPF stated:

NMPF and its members are committed to protecting U.S. waterways through voluntary efforts and regulatory compliance with the Clean Water Act, and we appreciate consideration of these important comments. We believe that our members will be adversely affected by the IR and that the IR will have the perverse impact of harming the longstanding trust and cooperative relationship between dairy producers and NRCS. Consequently, water quality improvements will be adversely impacted. For the reasons stated above, water quality will be better served if the IR is withdrawn and the agencies’ policy on establishing eligibility for the 404 exemption is reformulated with the benefit of more stakeholder engagement. NMPF and its members are very willing to work with the agencies and other stakeholders in this regard to ensure our mutual goal of attaining and maintaining water quality in our nation’s waters.

In a statement, a VP for NMPF said, “Our concern with the initial proposal from last year is that it could have altered the long-standing and productive relationship between farmers and the USDA’s Natural Resources Conservation Service in a way that would have made it harder for farmers to implement water conservation measures.”  Had the interpretive rule not been withdrawn, NMPF said that “the NRCS would have been thrust into the role of enforcer, rather than remaining a source from which farmers could seek conservation advice.”