This post is one of a series highlighting the ways in which water users have adapted to life in the time of COVID-19.

Shelley Roberts is the CEO of the Idaho Rural Water Association (“IRWA”). IRWA is a resource for small water systems in the State of Idaho that offers training for drinking water and wastewater operators and aids those systems in times of need. Their objective is “to ensure Idaho’s rural communities are safe while still maintaining the high quality of life we hold so dear.”

For Shelley, the best part of working with IRWA has been the same since day one. As someone with a business background, she loves being able to utilize her education by running a non-profit corporation benefiting others. “I’ve never met such salt of the earth people as I have in the water industry,” she says. “They are all so genuine, caring, and kind.”

COVID-19’s impact on IRWA started during its Spring Conference in March, 2020, which concluded on Friday, March 13- the same day the Federal Government declared a state of emergency. The following Monday, all of IRWA’s administrative staff were directed to stay home. The week after, IRWA organized a work from home policy that allowed employees to perform their duties remotely. For IRWA’s circuit riders, though, it was a different story.

Drinking water and wastewater are essential services, and adjustments had to be made to ensure they continued to run smoothly. IRWA employs numerous circuit riders and field staff whose jobs require in-person and onsite contact with water system operators. However, thanks to video conferencing technology, much of their communications with the operators could be conducted remotely, limiting potential exposure. When site visits were required, field staff practiced social distancing as much as possible, including staying 6 feet apart and wearing face masks.

An unexpected benefit of remote work was an increased ability not only to contact the systems but for internal communication between IRWA’s employees, office and field staff alike. “We learned how to use Teams and started having weekly video conferences,” Shelly told us. “We weren’t able to do that before. It was nice for everyone [at IRWA] to have more contact with each other.”

According to Shelley, one of the biggest impacts COVID-19 had was fear of “what ifs.” The ability to communicate with water systems in remote locations without having to travel allowed the circuit riders to discuss those concerns quickly and determine what steps were needed to resolve any issues.

Another of IRWA’s major concerns was operator availability. Many of the small systems IRWA works with are operated by volunteers who have other commitments to day jobs and families. Should those operators fall ill or otherwise become unable to perform their duties, it can be difficult to find other operators to fill in.

IRWA has long worked with the Environmental Protection Agency (“EPA”) to locally administer the water/wastewater agency response network, otherwise known as WARN. In response, through WARN, IRWA was able to put together a list of volunteers who could assist if a system’s regular operator was not available.

Shelley says that IRWA’s response to COVID-19 did not greatly differ from their response to other emergencies in which the first step is typically outreach and communication with the systems IRWA works with. For example, on March 21, 2020, a magnitude 6.5 earthquake struck central Idaho. Circuit riders needed immediate contact with water systems to assess any potential damage caused by the quake. Luckily, the remote communication procedures implemented in response to COVID-19 allowed IRWA’s circuit riders to easily check in with system operators.

While the pandemic continues to impact daily life and operations for IRWA in general and Shelley personally, she looks forward to life after COVID-19. Professionally, she awaits opening up the new training center in Boise, Idaho IRWA constructed just prior to the shutdown. The center will host hands-on trainings for water and wastewater operators in addition to traditional classroom training. As for her personally? Being able to hug her friends and extended family.

Shelley participated in a panel discussion on the pandemic’s impact on the Idaho water sector as a part of the Idaho Association of Cities’ 2020 virtual conference, which you can watch in full here. For more information about IRWA, including details for upcoming trainings, check out their website here. And stay tuned to Schroeder Law Offices’ blog for more posts in this series and other water-related issues!

The State of the Water Industry Survey

In the June 2020 issue of Opflow, the American Water Works Association published a survey of 3,351 water industry professionals. The State of the Water Industry (SOTWI) survey identifies challenges to the water industry and seeks to understand their causes.

Several issues regarding water resource management made the top ten concerns of the industry professionals surveyed. “Long-term water supply availability” was the third-highest ranked issue on the list at #3, followed closely by “watershed/source water protection” (#5) and “groundwater management and over-use’ (#10).

Water Demand

Specifically, 57 percent of surveyed respondents indicated that their utilities could meet anticipated long-term water demand. However, about 12 percent of respondents claim that it will be challenging to meet future supply needs. This uncertainty creates reverberating effects throughout the industry. Uncertainty affects many other aspects of water resource management and quality, including the other issues mentioned in the survey. Future supply shortfalls will lead to increased price and competition as well as the potential for more frequent litigation over water rights.

Source Water Protection

In addition, source water protection was another critical issue for water resource managers. 76 percent of utility respondents to the survey said that they had implemented or were implementing a source water protection program. When considering only large utility respondents, that share increased to 89 percent. Clearly, utilities focus on strong source water protection programs. These programs are often cost-effective ways to protect and improve both water quality and quantity. Further, states are generally responsible for implementing water quality standards under the Safe Drinking Water and Clean Water Acts for drinking water. Recently, the AWIA, America’s Water Infrastructure Act amended the Safe Drinking Water Act, signed into law in 2018.

Groundwater

Finally, this was the second consecutive year that groundwater issues were front and center in the survey. 2019 California drought and wildfire conditions stressed groundwater resources, bringing those issues to the front of many survey respondents’ minds. Those issues show no signs of abating, as drought and wildfires continue to ravage the West.

In conclusion, many of the challenges highlighted by survey respondents are similar to those faced by water resource managers throughout the years. While there may be some cause for concern in certain areas, overall the survey shows a positive outlook for the future. Utilities are using existing water resources more efficiently as they comply with the AWIA, protect their water sources, and engage in asset management planning. The water industry has poised itself to meet its challenges with resilience.

This blog was drafted with the assistance of Drew Hancherick, a current law student attending Lewis and Clark Law School.

April 22, 2020 is the 50^th anniversary of the first Earth Day, a global holiday that unites citizens of the Earth to take better care of our planet.

Earth Day was initially proposed by Wisconsin Senator Gaylord Nelson as a way to bring awareness to ongoing ecological issues and concerns. It took place on April 22, 1970 with a series of “teach-ins” on college campuses across America. It then gained national attention and momentum. The first Earth Day inspired the creation of the Environmental Protection Agency (EPA). It also lead to the passage of the Clean Air and Clean Water Acts along with numerous other environmental laws and regulations.

The next Earth Day did not take place until April 22, 1990. Numerous corporations and celebrities endorsed the holiday, and over 200 million people worldwide came together to celebrate. Now Earth Day is an annual event observed around the world. It continues to inspire rallies, cleanup projects, and volunteer efforts. It also provides an opportunity to bring awareness to ongoing and ever-evolving environmental issues like climate change, pollution, and deforestation.

Earth Day is often celebrated outdoors in large groups. Community members gather to perform services such as picking up litter or planting trees. Many others participate in marches or protests about ways we can minimize our impact on the planet and improve global environmental health. However, given the ongoing COVID-19 pandemic and need for social distancing, Earth Day 2020 is a little different. The majority of events are taking place online rather than outside. Still, there are plenty of ways to celebrate. 

While outdoor community gatherings are largely cancelled this year, countless digital resources and events are taking place to make the 50^th anniversary memorable and impactful. Earth Day’s official website has an interactive map with links to events happening virtually all around the United States and the globe. This means you can participate in events in your community, on the other side of the country, or anywhere on the planet!

Of course, April 22^nd isn’t the only day to celebrate the Earth. The National Ocean Service has a list of 10 simple things you can do every day to protect and improve our planet in the short- and long-term. These steps are also laid out in their handy infographic below.

At Schroeder Law Offices, we try to celebrate Earth Day every day. To learn more about what we do and about all things water, check out our Schroeder Law Offices blog!

The public comment period for Nevada’s 2016-2018 Draft Water Quality Integrated Report closes on January 30, 2020. On December 26, 2019, the Nevada Division of Environmental Protection (NDEP) published its Public Notice, inviting comment on the Draft Nevada 2016-2018 Water Quality Integrated Report. The report was prepared in accordance with the Clean Water Act, §§ 303(d), 305(b), and 314. The Clean Water Act requires NDEP to conduct a comprehensive analysis of water quality data associated with Nevada’s surface waters.

The report is a combination of the reporting requirements under the Clean Water Act § 303 on impaired waters, and § 305 for an overall assessment of surface water quality within Nevada and a description of how current conditions provide for the protection of beneficial uses of the state’s waters.

Data on Nevada’s rivers, streams, lakes and reservoirs was collected from October 1, 2009 through September 30, 2016 and was evaluated to determine if State water quality standards are being met and beneficial uses are supported. The report will be used by the public, other entities, and NDEP for water quality management planning purposes.

Impaired Water Reporting Requirements

Under its § 303 reporting requirements, NDEP has produced a list of waters where current pollution control technologies alone cannot meet the water quality standards set for that water body. The list also contains water bodies that may soon become impaired. Impaired waters are prioritized base on the severity of the pollution and the designated use of the water body (e.g. fish propagation or recreation).  NDEP will also develop total maximum daily loads or TMDLs of pollutants in the impaired water bodies. These TMDLs designate the maximum concentration of each pollutants allowed in the water body and will help guide NDEP water resource management decision in an attempt to improve impaired waters.

Last Minute Commenting

The Draft Nevada 2016-2018 Water Quality Integrated Report is available at:

https://ndep.nv.gov/water/rivers-streams-lakes/water-quality-standards/303d-305b-water-quality-integrated-report

Links to the 2014 Water Quality Integrated Report and examples of its public comments can also be found at the link above.

The public comment period for the Draft Nevada 2016-2018 Water Quality Integrated Report closes on January 31, 2020 at 5:00 PM. Any last-minute comments should be submitted by mail or email to:

Dave Simpson
Nevada Division of Environmental Protection
Bureau of Water Quality Planning 
901 S. Stewart St.
Carson City, NV 89701
dsimpson@ndep.nv.gov

What’s Next?

Once the report is submitted, Environmental Protection Agency (EPA) must notify NDEP of its approval or disapproval of the § 303 impaired waters list within thirty (30) days. If the list and associated TMDLs are approved, NDEP will incorporate them into its plan.  If they are disapproved, the burden shifts to EPA to identify impaired waters and determine the TMDLs necessary to implement the water quality standards applicable to each water. This must be completed by EPA in thirty days.  After such identification, if necessary, NDEP will then incorporate EPA’s § 303 list into its water quality plan.  

The reports required under the Clean Water Act §§ 303 and 305 are performed biennial.  The next report will likely be drafted in 2021 with another opportunity to submit public comments on the Draft prior to its submission.

(Image Source: https://travelnevada.com/discover/26065/truckee-river) 

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers (“agencies”)  issued a supplemental notice of proposed rulemaking to seek additional comments on the repeal of the 2015 “waters of the United States” rule under the Clean Water Act (“2015 WOTUS Rule”).

In July 2017, the agencies first issued a notice of a proposed rulemaking to repeal the 2015 WOTUS Rule. On February 6, 2018, the agencies published a final rule in the Federal Register adding an applicability date of February 6, 2020 to the 2015 WOTUS Rule, but at that time the agencies did not repeal the 2015 WOTUS Rule. The applicability date of February 6, 2020, makes it such that the pre-2015 regulatory definition of waters of the United States will be in effect until February 6, 2020 or until the 2015 WOTUS Rule is repealed. For additional background, see Schroeder Law Offices blog post, available here.

The agencies issued the supplemental notice to provide the public an opportunity to comment on additional agency considerations to support the repeal of the 2015 WOTUS Rule that were not discussed in the July 2017 notice of proposed rulemaking. The supplemental notice also aims to clarify that the agencies’ July 2017 proposal would completely and permanently repeal the 2015 WOTUS Rule in its entirety, replacing it with the pre-2015 regulatory definition.[1]

The supplemental notice also provides an additional comment period for interested parties to consider new factors and reasoning the agencies recently published as further support for the agencies’ decision to consider repealing the 2015 WOTUS Rule.[2] The additional information and comment period provided by the supplemental notice may also be designed to strengthen the July 2017 rulemaking process as any final rule will inevitably be challenged in a lawsuit.[3]

While the pre-2015 waters of the United States regulatory definition is in effect, the agencies will draft a new regulatory framework to define “waters of the United States.” The agencies will then publish a proposed rulemaking in the Federal Register to adopt a new definition.[4]

The public has 30 days to comment on the supplemental notice of proposed rulemaking. The comment period closes August 13, 2018.

[1] EPA New Release, EPA and Army Seek Additional Public Comment on ‘Waters of the U.S.’ Repeal (June 29, 2018) https://www.epa.gov/newsreleases/epa-and-army-seek-additional-public-comment-waters-us-repeal.

[2] Environmental Protection Agency, Definition of Waters of the United States-Recodification of Preexisting Rule, 83 Fed. Reg. 32,227 (July 12, 2018) https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-15104.

[3] Juan Carlos Rodriguez, EPA, Corps Expand Legal Case Against Obama Water Rule, Law360 (June 29, 2018) available at https://www.law360.com/articles/1059064/epa-corps-expand-legal-case-against-obama-water-rule.

[4] EPA, Waters of the United States (WOTUS) Rulemaking, https://www.epa.gov/wotus-rule/step-two-revise.

In 2015, the Environmental Protection Agency (“EPA”) and U.S. Army Corps of Engineers (“Corps”) issued a joint administrative rule, the “WOTUS Rule,” attempting to define the statutory term “waters of the United States” within the Clean Water Act (“CWA”) in order to more clearly define the agencies’ jurisdiction. Schroeder Law Offices summarized the background and scope of the WOTUS Rule in a 2015 blog. The WOTUS Rule was stayed in 2015. Three year later, and after a ruling from the Supreme Court of the United States, litigation over the WOTUS Rule continues. 

On January 22, 2018, the United States Supreme Court issued its unanimous opinion, written by Justice Sotomayor, which settled the jurisdictional question of where challenges to the WOTUS Rule must be filed. The Court held that challenges to the WOTUS Rule must occur in federal district court rather than courts of appeals. The case was remanded to the Sixth Circuit and dismissed for lack of jurisdiction.

This decision by the Supreme Court will likely prolong litigation on the merits of the WOTUS Rule because a decision by a district court for either party is likely to be appealed. Environmentalists have applauded the proposed changes in the rule, while coalitions like the American Farm Bureau Federation and American Petroleum Institute have said the rule will stifle economic growth and add burdensome regulation on farmers and business owners because of expansion of CWA jurisdiction.

On July 27, 2017 the EPA and Corps published a notice of a new proposed rulemaking in the Federal Register. The agencies proposed to replace the stayed 2015 WOTUS Rule with their pre-2015 regulatory procedure. The agencies solicited public comment on the proposed procedure, although, making clear they did not seek public comment on the substance of the pre-2015 rule.

On February 6, 2018, the agencies published the final rule in the Federal Register. The final rule suspends the applicability of the 2015 WOTUS Rule until February 6, 2020. The agencies assert that the suspension of the rule gives agencies the time needed to reconsider the regulatory definition of “waters of the United States.” As reported by Capital Press, the same day the agencies published their final rule a lawsuit was filed by the Attorneys General of New York, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, Washington and the District of Columbia in the Southern District of New York. Another lawsuit was filed by numerous environmental groups in Charleston, South Carolina District Court. Both lawsuits challenge the two-year delay in applicability of the WOTUS Rule.

The attorneys general and environmental groups both take the same positions on two issues in their complaints. First, the parties allege the agencies failed to provide meaningful opportunity for public comment in violation of the Administrative Procedure Act (“APA”) because the agencies solicited comments solely on the procedure of the rule, proscribing comment on the substance of the pre-2015 rule. Second, the parties allege the agencies failed to consider all the relevant issues and offer a rational explanation for the suspension of applicability rule, another alleged violation of the APA.

The attorneys general and environmental groups differ in their last claim, however. The attorneys general claim that the CWA does not give the agencies authority to suspend the WOTUS Rule after its effective date passed. The environmental groups claim the agencies violated the APA by failing to publish the pre-2015 rule in the Code of Federal Regulations.

Stay tuned as Schroeder Law Offices brings you updates!

This article was drafted with the assistance of Law Clerk Derek Gauthier, a student at Lewis & Clark Law School.

After the 1969 oil spill in Santa Barbara, Senator Gaylord Nelson from Wisconsin appealed to the student anti-war movement and worked with them to bring the ideas of air and water pollution to the public consciousness. In 1970, Senator Nelson  was inspired to create Earth Day as he was worried about the rate of the industrialization and the carelessness our society had towards the environment. Joining in the effort to create Earth Day, Congressman Pete McCloskey, a conservation-minded Republican, was the co-chair and Denis Hayes from Harvard was the national coordinator. Hayes was able to build a national staff of 85 to promote events across the country, choosing April 22^nd, 1970 as the date as it fell between Spring Break and Final Exams.

Earth Day 1970 achieved a rare political alignment, enlisting support from Republicans and Democrats, rich and poor, city slickers and farmers, tycoons and labor leaders. Earth Day is celebrated internationally on April 22^nd every year. A common practice is to plant trees as they help the environment, producing oxygen and removing carbon dioxide and other contaminants from the air. Trees also help clean our water by reducing stormwater runoff. It is created when rain falls on the roads, driveways, parking lots, rooftops and other paved surfaced that do not allow water to soak into the ground.  These large volumes of water are swiftly carried to our local streams, lakes, wetlands and rivers, and can cause flooding and erosion, impacting the habitat of critters that live near and in these areas.

Trees and forests improve stream quality and watershed health primarily by decreasing the amount of stormwater runoff and pollutants that reaches our local waters. Trees and forests reduce stormwater runoff by capturing and storing rainfall in the canopy and releasing water into the atmosphere through evapotranspiration (the process by which water is transferred from the land to the atmosphere by evaporation from the soil and other surfaces and by transpiration from plants). In addition, tree roots and leaf debris create soil conditions that promote the infiltration of rainwater into the soil. This helps to replenish our groundwater supply and maintain streamflow during dry periods.

So help our water and celebrate Earth Day by planting a tree!

Co-Authored By: Attorney Therese Ure & Lisa Mae Gage

In August 2015 the United State Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”) put their stamp of approval on the Waters of the United States (“WOTUS”) final rule. The WOTUS rule significantly expanded the definition of “waters of the United States” under the Clean Water Act, granting federal regulatory control over virtually all waters in the United States. Many groups opposed this rule, arguing that it expands federal jurisdiction, resulting in the imposition of burdensome requirements on agricultural producers.

On February 28, 2017, President Donald Trump signed an executive order directing the Administrator of the EPA and the Assistant Secretary of the Army for Civil Works to review the WOTUS rule to ensure the nation’s navigable waters are protected, as well as to promote economic growth and show due regard for the roles of Congress and the States. See https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic.

President Trump also directed the administrators, along with the heads of all executive departments and agencies, to consider interpreting the term “navigable waters” as it is defined in 33 U.S.C. 1362(7), and consistent with the opinion of late Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006). Considering these interpretations, one might construe “navigable waters” as waters in the United States, including the territorial seas, that are “navigable in fact” or readily able of being so.

This executive order was preceded by a House Resolution . See https://www.congress.gov/bill/115th-congress/house-resolution/152/text. The Resolution states WOTUS should be withdrawn or vacated as the EPA and Corps did not follow proper procedural steps and claimed expansive jurisdiction that infringes upon State authority.

Several agricultural groups are strongly supporting the House Resolution and the Executive Order. As water is a valuable resource to all, regulation upon it must be closely scrutinized and controlled. According to the agricultural community, President Trump’s executive order and the House Resolution regarding WOTUS is a welcomed relief. 

In the wake of ongoing controversy over the reach of U.S. Agency jurisdiction, a Senate Appropriations Committee is taking steps to decrease funds available for many Agencies for the upcoming year, in an attempt to limit any overreach.  On June 16, 2016 the Senate Committee approved budget cuts to the United States Fish and Wildlife Service (“USFWS”) and Environmental Protection Agency (“EPA”). Sponsored by Senator Lisa Murkowski from Alaska, the bill covers funding of many agencies and topics, with specific statements relating to public land agencies and funding.

Most notably, the bill proposes to cut the USFWS’s budget by $11.9 million as compared to the 2016 budget. Proposed cuts equally would affect the EPA’s budget to the tune of $31.2 million. Interestingly, and related to the funds allocated to the EPA, the bill states that, “None of the funds made available in this Act or any other Act, may be used to develop, adopt, implement, administer, or enforce any change to the regulations and guidance in effect on October 1, 2012, pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act…”

While the measure is likely to be altered as it goes before the Senate, it marks a movement by many to limit funding to U.S. Agencies in charge of public lands, and seeks to limit the jurisdictional overreach the Agencies often assert. Those behind such measures believe that if the Agencies lack the funds to assert their jurisdiction, their resources will be dedicated in furtherance of the respective Agencies’ core goals, rather than working to increase their jurisdictional effect and power.

For the full text of the proposed bill, please visit https://www.congress.gov/114/bills/s3068/BILLS-114s3068pcs.pdf.

On December 22, 2015, the United States Environmental Protection Agency (“EPA”) announced funding of more than $19 Million for drinking water and wastewater infrastructure projects in Nevada. The program funds fall under Nevada’s Clean Water State Revolving Fund, and provides money for state projects that promote clean water through wastewater treatment projects and improvements to drinking water infrastructure in the State. The EPA’s Regional Administrator stated that “This substantial investment at the federal level helps communities develop the infrastructure needed for clean, safe drinking water and proper wastewater treatment. EPA is committed to protecting the water resources so important public health and Nevada’s economy.”

Funds supplied under the EPA program will go to provide financing for state projects such as upgrading septic systems to sewer, and renovations to wastewater treatment facilities to increase efficiency, as well as support projects for better and more efficient access to clean drinking water, such as water storage and water system upgrades. The funds this year will combine with over $200 Million in federal funding previously provided to Nevada’s Clean Water and Drinking Water State Revolving Fund since the project began. While the EPA’s influence can at times be controversial, federal funding is important to State projects, where both municipal and agriculture interests can often benefit from the funds supplied for needed water projects.

More information on the topic can be found at the EPA Web Site.