EPA Heeds NACWA’s Input Regarding Water Quality Criteria in Guidance Reforms, Legal Questions Remain

(September 23, 2020) – EPA last week released a copy of its final action establishing procedures and requirements for how the Agency will manage the issuance of guidance documents, as well as a public petition process for the withdrawal or modification of existing guidance or reinstatement of rescinded guidance.  The action was originally proposed this past May in response to Executive Order 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents.”

While the action still includes several conflicting provisions that call into serious question its legal effect and value for the clean water community, it also reflects a number of reforms advocated in NACWA's comments on the May proposal.

Most importantly, although NACWA’s members are significantly impacted by CWA Section 304(a) water quality criteria, because states may elect whether or not to adopt such criteria, it was unclear if they would qualify as “guidance documents” and benefit from the additional transparency and petition processes outlined in the proposed reforms. At NACWA’s request, the preamble to the final rule clarifies that “EPA has determined that drinking water health advisories and CWA 304(a) national recommended Water Quality Criteria issued by the Office of Water” are “guidance documents” subject to the rule’s new requirements, as they are “statements of general applicability, set forth a policy on a technical issue, [and] are intended to have future effect on the behavior of regulated parties.”

The rule does not, however, address whether or to what extent CWA 304(a) criteria may qualify as “significant” guidance documents, which are afforded additional notice and comment and interagency review opportunities under the rule.  

The final rule likewise follows the requests of NACWA and others in establishing a dedicated and easily accessible public portal that houses active guidance documents. According to EPA, the Guidance Portal has now been fully populated to include all active EPA guidance documents, and any document that meets EPA’s “guidance” definition not included in the Portal “does not represent an active guidance document and will have no effect.” 

With respect to the petition process, EPA is finalizing its proposal to allow the public to petition for the modification or withdrawal of existing guidance. EPA intends to make petitions publicly available but will not seek public comment on petitions received. 

The final action also establishes an additional public process for petitioning the Agency to reinstate guidance documents that have been rescinded.  This would include, for example, those documents subject to the Office of Water’s September 2019 policy memorandum rescinding any draft or interim guidance documents that were issued more than two years ago and never finalized. 

Despite these reform efforts, however, the rule still contains language that calls into question its scope and use. In particular, EPA states that it “considers this action a rule of agency organization, procedure, or practice that lacks the force and effect of law,” which is exempt from the Congressional Review Act because it does not “substantially affect the rights or obligations of non-agency parties.”

However, EPA also consistently refers to the action as a “rule,” “regulation,” and “codification,” and the Agency expressly removed the proposed provision allowing EPA to deviate from the procedures in the Administrator’s sole and unreviewable discretion. As such, the action’s legal effect and the extent to which NACWA’s members may be impacted by or utilize its provisions remains in doubt. 

Members should contact Amanda Aspatore, NACWA’s Chief Legal Counsel or Emily Remmel, NACWA’s Director of Regulatory Affairs, for more information.