Look Ahead: Water Regulations and Guidelines in 2023

The poet Samuel Taylor Coleridge coined the phrase “Water, water everywhere, nor any drop to drink” in the poem The Rime of the Ancient Mariner.   In recent years we have seen regulations and legal challenges that have left industry feeling like water resources are harder and harder to use and at the same time it is harder to stay in compliance with numerous regulations.   In 2023, we will continue to see legal challenges, changes to United States Environmental Protection Agency (U.S. EPA) policy and recommendations for water quality, and additional permitting requirements.

Waters of the United States (WOTUS)

Happy New Year!  The Final Rule defining WOTUS was published in the Federal Register January 18, 2023 and will go into effect March 19, 2023 (60 days from publication).  The 500-plus page rule has a lot of information packed within it.  The U.S. EPA and the U.S. Army Corps of Engineers (USACE) released the pre-publication version revising the definition of WOTUS applicable to all Clean Water Act (CWA) programs. The final rule repeals the Navigable Waters Protection Rule (NWPR) and codifies a definition that the Agencies claim is “generally consistent with the pre-2015 regulatory regime.”  Two standards for determining jurisdictional waters are the “relatively permanent” and “significant nexus” tests.  Relatively permanent is a new term meaning that waterbodies must be relatively permanent, standing, or continuously flowing waters connected to continuous or relatively permanent waters.  Types of waterbodies have been defined to include an “additional waters” category that is defined as other lakes, ponds, streams, or wetlands not otherwise categorized.  This opens the possibility of expanding WOTUS not previously included.

Look for a future 4 the Record article in February with more details on the changes to WOTUS.  In the meantime, if you have not completed your jurisdictional determination through the USACE, or have projects ongoing, the USACE is putting out guidelines on which rule will apply to your project.  If you have expansions or greenfield developments underway or starting this year, take time to review with USACE and your team. The final rule defines jurisdictional waters more broadly when determining significant nexus and whether “other” waters meet the significant nexus test.

Water Quality Standards and Criteria

U.S. EPA continues to develop and review information included in calculating water quality criteria.  One push in the last Triennial Review was to increase the fish consumption values, which lead to decreases in the criteria for bioaccumulative compounds.  Look for U.S. EPA to update criteria going into the next Triennial Review cycle.  Also, look for some states to not adopt new standards based on U.S. EPA’s new criteria.  You will continue to see this played out in the courtroom as to whether States must adopt federal criteria as their standard.

Permitting

2023 will continue to see discussions on emerging contaminants for development of drinking water standards (maximum contaminant levels or MCL) for PFAS compounds. U.S. EPA funding will also continue to be available for infrastructure projects especially around replacement of lead/copper piping.  Industrial sites will continue to see pushes to expand sampling for emerging contaminants as a precursor to setting discharge limits.

More significantly, several states are set to revise their industrial stormwater permits in 2023.  Check out our 4 the Record article on the just revised Pennsylvania Industrial Stormwater General Permit (PAG-03) .

Spill Prevention Planning

U.S. EPA may move on the proposed Plan for Worst-Case Hazardous Substance Releases in 2023 or 2024.  ALL4 will track this proposed regulation, but it is worth the effort to see if any of your facilities meet the requirements, as proposed, for development of a plan (SEE 4TR article from 2022).

2023 is a year to be aware and proactive.  As you plan your 2023 projects, reach out to one of ALL4’s water practitioners or Karen Thompson at kthompson@all4inc.com.  We can assist you with evaluation of new regulatory impacts, and development of plans, procedures, and management of change documents.  We will continue to inform you on new developments in these areas.