Rules and Regs: EPA Starts Revision of Water Regulation

In this month's regulations update, the U.S. EPA asks for advice from the states on federal pollution oversight, and septic inspections won't be required when homes are sold in Florida

Rules and Regs: EPA Starts Revision of Water Regulation

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In its early steps in rewriting the Waters of the U.S. Rule, the U.S. Environmental Protection Agency recently sent letters to several governors asking for state advice in how to modify the rule that governs what bodies of water are subject to federal pollution oversight.

When it was issued in 2015, the rule drew vocal opposition from business. The head of the National Association of Homebuilders said a developer would face higher hurdles building on a piece of rural land. In February, President Donald Trump signed an executive order requiring the EPA to rewrite the rule.

Revising the rule will consist of two steps, and both supporters and opponents of the rule agree the process will take time. One step will rework current regulations to conform to what courts have said about the existing rule. The second will formulate a new, narrower rule. The EPA must develop technical evidence supporting any revision, and any proposed changes must go through a period of public comments and hearings.

The 2015 rule was originally an attempt to clarify what waters are subject to federal oversight. The Clean Water Act gave the federal government jurisdiction over “navigable waters,” and since the act became law several court cases have been filed over the meaning of that phrase.

The 2015 rule took inspiration from the opinion of Supreme Court Justice Anthony Kennedy’s opinion in a 2006 lawsuit over the meaning of navigable waters. Kennedy wrote the term should refer to water significantly connected to navigable rivers and seas, including a biological or chemical connection. The executive order from Trump requires a rule consistent with the opinion of the late Justice Antonin Scalia in the same case. Scalia had a narrow interpretation of the term. He described navigable water as water that had a relatively permanent flow or had a surface connection to waters with a relatively permanent flow.

At the moment, Waters of the U.S. is not in effect because the Sixth Circuit Court of Appeals issued a nationwide stay in 2016 as the result of a lawsuit brought by several industry groups and states.

News reports quoted Ellen Gilinsky, a former EPA official who advised on the rule, as saying many fears of opponents are overblown. Supporters of the rule say states don’t have the resources to ensure the health of water, and Gilinsky said she hopes the revision procedure will get all sides to finally agree on what waters should have federal oversight.


When the current legislative session ended, a bill that would have required property buyers to be notified of the presence of a septic system died with it.

The bill, authored by Rep. Randy Fine (R-Brevard County), originally required a wastewater system inspection at the time a property is sold. Fine represents a part of Florida adjacent to the Indian River Lagoon, a 50-mile-long stretch of water that is separated from the Atlantic Ocean by a narrow strip of barrier island and has water contaminated by faulty or failing septic systems.

As the bill progressed through the Legislature, it was altered to remove the requirement for an inspection. Instead the bill required property sellers to only inform buyers of the presence of a septic system, and sellers would not have been required to disclose problems. Buyers would have been required to sign a form telling them systems need pumping every three to five years.

News reports said the Florida Real Estate Association was concerned the original bill would discourage people from buying properties with septic systems.

Fine’s bill also would have required the state Health Department to create a statewide database and map of existing septic systems.

A separate bill that would have allocated $20 million annually to help property owners retrofit septic systems or connect to sewer lines also died for lack of legislative action.

Also, county commissioners in Indian River County — adjacent to the Indian River Lagoon and immediately south of Brevard County — voted to raise septage dumping fees from $7.51 to $15 per wet ton. A memo from county attorneys said the previous rate covered only about half of the cost at the county’s biosolids facility. In May, commissioners restricted waste coming in from out of the county.

Earlier this year, the state Department of Environmental Protection cited the county for periodic discharges of organic matter, nitrogen and phosphorus at its West Regional Wastewater Treatment Facility between November 2014 and February of this year.

New York

Suffolk County, which occupies the eastern end of Long Island, has a new program to help fund wastewater system upgrades that combat nitrogen pollution. County Executive Steve Bellone signed the Reclaim Our Water Septic Improvement Program into law earlier this year. The county approved a $10 million grant program to fund the initiative. Citizens may apply for grants of $10,000 to $11,000 per home to pay for about 200 systems annually to be converted from cesspools to advanced nitrogen-removal systems. About 360,000 homes in Suffolk County — about 75 percent of all homes — use cesspools. County officials said the program will prioritize homes in low-lying areas.

The county is working to provide predictable pricing of the four approved systems: Norweco Singulair and Hydro-Kinetic, Orenco AdvanTex, and Hydro-Action.

The county has set up a website ( as a point of contact for the public.


The owner of a wastewater company in San Marcos and the company have agreed to pay up to $4.1 million in restitution for illegally dumping wastewater from portable restrooms into municipal wastewater systems. The Southern California pumping company's owner and its chief operating officer pleaded guilty in federal court to conspiracy to unlawfully discharge pollutants. The company’s safety and compliance manager, has been charged with perjury in the case.

Employees were instructed to build dump stations inside five company facilities between San Diego and the greater Los Angeles area. Drivers emptied their tanks in the stations without creating a billing record for the local municipal wastewater agency. At a cost of about $75 per 1,000 gallons, that means the company avoided between $1.3 million and $4.1 million in fees.

Also in California, residents near Malibu want to know why they are being pushed to connect to a sewer system when they say onsite technology would accomplish the same goal at a lower cost. The state has ordered 444 homeowners to stop using their septic systems in the next few years. State and federal officials are concerned about the nutrients these systems are adding to the Malibu Lagoon and to the ocean at Surfrider Beach. The estimated cost of a new sewer system is $35 million. Residents of Serra Estates asked why they could not install less-expensive advanced treatment units instead of paying for a new plant.


The Massachusetts Association of Onsite Wastewater Professionals is no more. Instead, the organization is returning to its previous name: Yankee Onsite Wastewater Association. Although the organization will continue to focus primarily on Massachusetts, the name change reflects a membership that is regional and the organization’s goal of making YOWA a New England organization, according to association president Tom Groves. This is the only organization focused on the onsite industry in the region, Groves said in the association’s most recent newsletter.


The latest revision of Colorado’s onsite regulation went into effect on June 17. In 2013, the state adopted its first revision of Regulation No. 43 in more than 30 years. After experience with it, officials and professionals identified some parts that required tweaking. Interested parties held 16 meetings beginning in August 2015. The revisions were adopted by the state Water Quality Control Commission in May. Local agencies will have one year to bring their ordinances into compliance with the revised regulation.


To reduce water contamination, local governments in the Toledo area covered $75 of the cost of septic pumping for homes in the watershed of Wolf Creek. That figure equals the per-1,000-gallon dumping fee at treatment plants associated with the program. Wolf Creek empties into Lake Erie at Maumee Bay State Park, and tests have found that bacteria from the creek contribute to water quality problems at the park’s beach. About 400 homes in the watershed are on septic systems, officials said.


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