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EPA Regulations EPA's Top Priorities For Water In 2014 New rules focus on water quality, industrial operations. wateronline.com ■ Water Online The Magazine 24 T he Nov. 26, 2013, publication of the U.S. EPA's annual Regulatory Plan and semiannual Regulatory Agenda — wherein EPA describes the significant regulations that it expects to issue in proposed or final form during the coming year — provides a good opportunity to forecast what regulatory issues are going to be hot in 2014. According to EPA, the quality of the nation's waters demands renewed regulatory focus because "despite considerable progress, America's waters remain imperiled. Water quality protection programs face complex challenges, from nutrient loadings and stormwater runoff to invasive species and drinking water contaminants. These challenges demand both traditional and innovative strategies." Here is a brief summary of some of the new rules and proposals that we can expect from EPA in the coming year. Definition Of "Waters Of The United States" The expected proposal in 2014 of a rule to clarify the definition of "waters of the United States" under the Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA), will likely have critical and wide-ranging significance for the regulated community. By way of background, the federal government has geographic jurisdiction over "waters of the United States," but two decisions by the U.S. Supreme Court — Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006) — regarding the scope and meaning of that term have created more confusion than understanding. Moreover, guidance memoranda issued by EPA and the U.S. Army Corps of Engineers (the "Corps") provided little actual guidance on how the agencies and CWA permittees should proceed. To that end, EPA and the Corps have together drafted a rule to clarify the meaning of "waters of the United States," which is currently under review by the Office of Management and Budget (OMB). According to EPA, the proposed rule will be based on the best available science and take the legal considerations expressed by the U.S. Supreme Court into account. After OMB has completed an interagency review, the proposed rule will be published in the Federal Register for public comment. EPA states that the "proposed rule will provide greater consistency, certainty, and predictability nationwide by providing clarity in determining where the CWA applies." Early indications suggest that the regulated community believes that the proposed rule will greatly expand EPA's jurisdiction pursuant to the CWA, creating a huge economic impact. Cooling Water Intake Structures Cooling water intake structures are commonly used by power plants and manufacturing facilities to withdraw large amounts of surface water to cool process water and equipment. When water is withdrawn by an intake structure, fish and other aquatic organisms may get trapped against intake screens (known as impingement) or may get drawn into the process itself (known as entrainment). Section 316(b) of the CWA requires that the "location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." Since Section 316(b) was passed by Congress in the 1970s, EPA has made several attempts to establish nationwide technology standards for impingement and entrainment reduction at existing facilities, only to have those rules remanded, withdrawn, or rewritten either voluntarily, through settlement agreements, or by court order. According to a 2010 settlement agreement, EPA was initially required to finalize its latest Section 316(b) rulemaking effort by July 27, 2012. That date has been extended four separate times — the most recent missed deadline was Jan. 14, 2014 — because EPA required additional time to finalize a rule. Steam Electric Power Plants In June 2013, EPA published proposed amendments to the effluent limitations guidelines (ELGs) and standards for discharges from steam electric power generating facilities, which apply to the approximately 1,200 steam electric power plants nationwide that use nuclear or fossil By Bridget Dorfman 2 4 _ V E R T _ 0 2 1 4 E Z i n e _ M G K F _ D G . i n d d 1 24_VERT_0214 EZine_MGKF_DG.indd 1 1 / 3 1 / 2 0 1 4 1 : 1 1 : 2 9 P M 1/31/2014 1:11:29 PM