From the Clean Water Act to the Lead and Copper Rule, Lloyd Gosselink associates Lauren Thomson ‘19 and Nathan Vassar gave an exciting glimpse into contemporary developments in federal water, drinking water, and wastewater updates.
The presentation focused on three key updates: the jurisdictional rule for Waters of the United States, PFAS treatment throughout the United States, and the Lead and Copper Rule. First, for the jurisdictional rule for the Waters of the United States, the two lawyers explained that the Environmental Protection Agency (EPA) is returning to a case-by-case analysis. The 1980s Waters of the United States rule forms the foundation of the current proposed rulemaking’s definition. The proposed rulemaking also brings in the Supreme Court cases of Rapanos v. United States and Maui v. Hawaii Wildlife Fund. The rule includes five categories: (1) traditional navigable waters and territorial seas, (2) impoundments of Waters of the United States, (3) tributaries to traditional navigable waters, (4) adjacent wetlands to impoundments or tributaries, and (5) “other waters.” This proposed rule introduces dramatic carveouts when compared to the 2015 Waters of the United States rule, but the proposed rulemaking is still largely a return to prior implementation. Certain wetlands, ephemeral streams, and adjacent but separated water bodies can be included under this new proposed rule, but the connectivity is still important under the case-by-case analysis.
Thomson and Vassar next turned to PFAS and PFAS regulations at the EPA. In 2021, the EPA published an updated, comprehensive PFAS roadmap covering proposals spanning from 2021 to 2024. Aspects of the roadmap include testing, monitoring, and rulemaking. One of the avenues that the EPA has taken for addressing PFAS is through the Safe Drinking Water Act, with the proposed rule and final rule scheduled to come out in the fall of 2022 and 2023, respectively. Texas has yet to implement PFAS monitoring at a state level, but federal application and application by other states have provided models for what to potentially expect. At both state and local levels, monitoring centers on the three R’s: Research, Restrict, and Remediate. The monitoring of PFAS occurs in both wastewater and drinking water monitoring. Under the Unregulated Contaminant Monitoring Rule, the EPA is looking to require sampling of 29 different chemicals as a preliminary step to assess PFAS prevalence. Water and wastewater treatment utility companies face a unique complexity in the face of this action: even though they are not the ones introducing PFAS into the water, they are responsible for the contaminant’s treatment and distribution. With the agency considering proposing a rulemaking under CERCLA, utility companies could face enhanced responsibility despite not producing PFAS chemicals.
Finally, Thomson and Vassar concluded their presentation by focusing on new developments under the Lead and Copper Rule. The rule originated under the Trump administration, with the Biden administration moving forward with the new rule. The rule requires that every public water system compiles an inventory of its lead and copper pipes within a three-year deadline. There is an expected annual replacement rate of 3% throughout each system. This new role features an absolute replacement requirement, further emphasizing the proactive spirit of the rule. The EPA did provide some funds for analyzing the pipes, and there had been speculation about how to prioritize funding during the second phase of implementation.
For those interested in learning more about any of the aforementioned topics, Thomson and Vasar recently hosted a Lloyd Gosselink podcast in which they provided an update on federal water issues (here)