Two environmental regulatory changes aimed at very different demographics are in the recent environmental news feed. The first one, which aims to make the appeal of environmental permits more streamlined, was welcomed by some but criticized by environmental groups. The second change updated the financial assessment process that will hopefully increase funding for water projects in disadvantaged communities.
Streamlining Procedures for Permit Appeals
The federal register notice summary of the Streamlining Procedures for Permit Appeals final rule states that this rule “finalizes a procedural rule to streamline and modernize the Environmental Protection Agency’s (EPA) permit appeal process…”
This final procedural rule applies to permits issued by, or on behalf of, the EPA under the Clean Air Act, the Clean Water Act, the Safe Drinking Water Act, and the Resources Conservation and Recovery Act.
Legal Commentary on the Final Rule
According to a blog by Holland and Knight, “Supporters of the proposal praised the EPA’s effort to streamline permit appeals, which often are lengthy and time-consuming, resulting in voluminous opinions even where the appeal is dismissed on procedural grounds without reaching the merits. Opponents, however, thought the effort would reduce or eliminate transparency, public participation and the independence of the EAB judges. As a result of the comment process, the EPA decided not to adopt two of the more notable proposals, a process for mandatory alternative dispute resolution (ADR), which would have dramatically changed the exhaustion requirement for taking an appeal to federal court and elimination of amicus briefs by which non-parties, including community members, could weigh-in on issues raised in the appeal.”
An Environmental Group View
EarthJustice provided a less-favorable viewpoint and sounded their opposition back in January, just after the change was proposed. “With a deceptively labeled early December proposal — titled ‘Modernizing the Administrative Exhaustion Requirement for Permitting Decisions and Streamlining Procedures for Permit Appeals’ — the Agency is attempting to eviscerate the EAB’s power to ensure permits issued to polluting industry comply with basic environmental statutes like the Clean Water Act and Clean Air Act. In place of this core function, the rule would, in effect, give industry nearly unfettered rights to petition the Board for weaker permit requirements. At the same time, it would give polluting industry a veto power over any petitions from communities or individuals seeking stronger protections, even where a challenged permit is demonstrably flawed.”
The rule, which is effective September 21, 2020, can be read in its entirety in the Federal Register.
2020 Financial Capability Assessment for Water Services in Disadvantaged Communities
The second news item, a proposed rule, should win broad support as it updates a process that has been lingering unchanged for nearly a quarter century.
The EPA’s proposed Financial Capability Assessment (FCA) 2020 guidance includes new metrics that more-accurately reflect how much low-income communities can afford to pay for water infrastructure upgrades.
Help for Low-Income Communities
The EPA states that, “Today, the U.S. Environmental Protection Agency (EPA) announced its proposed 2020 Financial Capability Assessment (FCA) for the Clean Water Act, which will help communities plan for water infrastructure improvements. Through the 2020 FCA, EPA is seeking to support water utilities that serve economically disadvantaged communities and provide vital clean water services that support public health, the environment and local economies. This is the first time in more than 20 years this document has been updated (emphasis added).”
The National Association of Clean Water Agencies stated, “NACWA has been working for nearly two decades to move EPA away from its sole reliance on median household income (MHI) as an indicator of affordability in the Clean Water Act context.”
The American Water Works Association states, “The US Environmental Protection Agency’s financial capability assessment has been criticized for not focusing on the most economically vulnerable users and not capturing economic impacts across diverse populations.” They went on to say that this proposed framework provides a more accurate picture of affordability challenges in lower-income households.
The EPA News Release provides details, and more information can be found at Water Infrastructure and Resiliency Finance Center.
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