Office Of Water (ow)

OW is responsible for ensuring safe drinking water and restoring and maintaining oceans, watersheds, and their aquatic ecosystems to protect human health, support economic and recreational activities, and provide healthy habitats for fish, plants, and wildlife. Its two main statutes include implementing the Clean Water Act (CWA)26 and Safe Drinking Water Act (SDWA).27 OW has generated a large number of expansive regulations that infringe on private property rights, most notably with the Waters of the U.S. program.

Needed Reforms

The overarching theme for reform is guidance on guidance. OW relies heav- ily on guidance documents that are outdated and that sometimes have been in a “deliberative” state for years. Additionally, there are significant issues surrounding OW’s holding up guidance as something more than simply guidance: as something akin to law in certain circumstances. The August 6, 2019, “Office of Water Policy for Draft Documents” memorandum28 should be strictly enforced to ensure transparency as well as good governance by not letting guidance linger in draft form and by also ensuring that guidance documents are clearly just that: guidance. They do not have the effect of law and should not be treated by the office as if they did have any such effect.

As a matter of broad practice, OW should be complying with statutorily estab- lished deadlines in all situations with only minimal exceptions. In cases where statutory deadlines will not be met, senior management should be made aware of the delay and should have an opportunity to determine whether alternative courses should be taken.

Depending on the outcome of regulations from the Biden Administration as well as intervention by the Supreme Court on both waters of the United States (WOTUS) and CWA Section 401,29 the repeal and reissuance of new regulations should be pursued.

New Policies

New regulations should include the following:

A rule that provides clarity and regulatory certainty regarding the CWA Section 401 water quality certification process to limit unnecessary delay for needed projects, including by establishing a discharge-only approach with a limited scope (from point sources into navigable waters), assessing only water quality factors that are consistent with specific CWA sections, and excluding speculative analysis regarding future potential harm. A rule to ensure that CWA Section 30831 has a clear and enforced time limit. A rule to clarify the standard for criminal negligence under CWA Sections 40232 and 404.33

A rule to prohibit retroactive or preemptive permits under CWA Section 404. A rule to promote and shape nutrient trading that utilizes a carrot-versus- stick approach when dealing with nutrient compliance. A rule to update compensatory mitigation that imposes no new or additional requirements beyond current law. A rule on updates necessary for the effective use of the CWA needs survey.

A WOTUS rule that makes clear what is and is not a “navigable water” and respects private property rights. Coordinate with Congress to develop legislation, if necessary, to codify the definition in Rapanos v. United States that “waters of the United States” can refer only to “relatively permanent, standing or continuously flowing bodies of water…as opposed to ordinarily dry channels through which water occasionally or intermittently flows.”30

An executive order requiring EPA to find avenues and expedite the process for states obtaining primacy in available CWA and SDWA programs. This order would require coordination with the Army Corps of Engineers and the Department of the Interior. Implementation of additional policies to address challenges in water workforce, issues surrounding timely actions on primacy applications, and cybersecurity.

Budget

While the overall goal is certainly to reduce government spending, there is one very targeted area where increased spending would be in the nation’s interest. The Clean Water Act needs survey is the entire basis for how congressionally appro- priated funds directed to state revolving funds—standard annual appropriations that are the true underpinning of all infrastructure funding for drinking water and clean water—are distributed by EPA across the country. Because this program is currently underfunded, money is being thrown at untargeted locations while water infrastructure is crumbling at other locations. Increased targeted funding would greatly benefit water systems across the country at a time when intervention is crucial, leaving fewer communities with significant water service challenges.

Personnel

OW would benefit greatly from the reshifting of SES employees to different programs and from headquarters out to regional offices.

OFFICE OF LAND AND EMERGENCY MANAGEMENT (OLEM)

OLEM’s mission is to partner with other federal agencies, states, tribes, local governments, and communities to clean up legacy pollution and revitalize land for reuse. OLEM executes this mission by protecting human health and the envi- ronment while leveraging economic opportunities and creating jobs. OLEM also oversees the agency’s emergency response. The main statutes that OLEM exe- cutes are the Resource Conservation and Recovery Act (RCRA)34 to regulate waste management; the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)35 to clean up Superfund sites and provide resources for cleaning up brownfields sites; and Section 112(r) of the Clean Air Act36 to reduce the likelihood of accidental chemical releases. Needed Reforms

OLEM’s main function is to oversee the execution of cleanups under CERCLA and RCRA; therefore, it is critical that OLEM staff focus on project management more than policy creation. Emphasizing productivity more than process and policies can result in more work on the ground in communities where Americans live and work. OLEM can accomplish this goal by determining the scope of work based on an actual reduction in exposure to chemicals as opposed to the elimination of theoretical potential exposures. To manage cleanups more effectively, OLEM should:

Require training in project management for project managers (as opposed to all staff having a general science background). Adopt EPA’s Lean Management System (ELMS) across all OLEM programs. Delegate all CERCLA authority from the Administrator to the OLEM Assistant Administrator as opposed to a direct delegation to the Regional Administrators. Find opportunities to transfer work and funding to states and tribes.

New Policies Superfund. To execute more efficient and effective cleanups, the following changes are needed in the Office of Superfund Remediation and Technology Inno- vation (OSRTI):

Revise the National Oil and Hazardous Substances Pollution Contingency Plan (NCP) to modernize and streamline the cleanup process using lessons learned from the execution of the NCP over the past 40-plus years. Increase the use of CERCLA removal authority to execute short-term cleanups, which will provide clarity and finality for potentially responsible parties (PRPs) and return cleaned up land to communities more swiftly. Streamline the process for determining Applicable or Relevant and Appropriate Requirements based on commonalities across sites as opposed to making such determinations on a site-by-site basis. Revise groundwater cleanup regulations and policies to reflect the challenges of omnipresent contaminants like PFAS. Revisit the designation of PFAS chemicals as “hazardous substances” under CERCLA.

Allow PRPs to perform the statutorily required five-year reviews of Superfund cleanups to free OLEM resources.

Expand and fully stand up the Office of Mountains, Deserts and Plains to support innovative approaches to the cleaning up of abandoned mines. Develop and execute a 10-year cleanup plan to address lead at all existing cleanup sites that includes benchmarks and milestones that allow for congressional and public oversight of the schedule. RCRA. To streamline waste management, the following changes are needed in the Office of Resource Conservation and Recovery (ORCR):

Create an RCRA post-closure care permit that is tailored only to post- closure obligations.

Modify regulations that impede resource efficiency, recycling, and reuse by providing clearly that these materials are not waste. This can be done by promulgating a rule that provides an alternative pathway to hazardous waste regulation to allow the transport of material to legitimate recyclers or back to manufacturers to support the recycling and reuse of material.

Change the electronic manifest (e-manifest) regulations to a 100 percent electronic system and eliminate all paper manifests and manual filing and data input. This system should operate from a range of common handheld devices and could be expanded to accommodate solid waste and materials for reuse and recycling.

Reassign regulation and enforcement of air emission standards under the authority of RCRA Section 300437 to OAR and revise and modernize the regulations to comport and integrate with CAA rules. Risk Management Program. If a new Risk Management Program (RMP) rule is finalized by the Biden Administration, it should be revised to reflect the amend- ments finalized in 2019 to protect sensitive information.

Personnel

The following organizational changes could create resource efficiencies to focus on the highest-value opportunities:

Eliminate or consolidate the regional laboratories and allow OLEM to use EPA, other government, or private labs based on expertise and cost.

Consolidate non-core functions (communications, economists, congressional relations, etc.) into one OLEM suboffice to allow the subject- matter offices to focus on the execution of field work. Eliminate the Office of Emergency Management and reassign its functions.

1. Move the emergency management function (currently OEM) into Homeland Security under the Administrator’s office.\

2. Incorporate removal authority (currently OEM) into OSRTI.

3. Retain the oversight and enforcement of the RMP program within OLEM.

4. Drop “Emergency Management” from OLEM’s name.

Budget

While the overall goal is certainly to reduce government scope and spending, OLEM’s programs present the best opportunity to use taxpayer dollars to execute EPA’s core mission of cleaning up contamination.