Orland Project Water Management Act

— 429 — Environmental Protection Agency 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: l 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 l 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. l A rule to ensure that CWA Section 30831 has a clear and enforced time limit. l A rule to clarify the standard for criminal negligence under CWA Sections 40232 and 404.33 l A rule to prohibit retroactive or preemptive permits under CWA Section 404. l A rule to promote and shape nutrient trading that utilizes a carrot-versus- stick approach when dealing with nutrient compliance. l A rule to update compensatory mitigation that imposes no new or additional requirements beyond current law. l A rule on updates necessary for the effective use of the CWA needs survey. — 430 — Mandate for Leadership: The Conservative Promise l 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. l 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

— 428 — Mandate for Leadership: The Conservative Promise Personnel, Budget, and Office Restructuring l Place a political appointee in Ann Arbor, Michigan, for the Office of Transportation and Air Quality (OTAQ, regulating mobile sources) and a political appointee in Research Triangle Park, North Carolina, for the Office of Air Quality Planning and Standards (OAQPS, regulating stationary sources) and give those appointees the requisite titles and authority to oversee the OTAQ and OAQPS staff. l Establish a political Chief of Staff in D.C. to manage the entire air office. l Pull the Renewable Fuel Standard (RFS) program out of OTAQ; establish its own suboffice in D.C. (with status parallel to OTAQ and OAQPS) that is headed by a political appointee; and establish a Memorandum of Understanding with the Department of Agriculture and the Department of Energy to work together to establish RFS programs. l Require regional air offices to receive approval from OAR before moving forward with enforcement actions in order to ensure that enforcement is meeting the requirements established by regulations and is not going beyond them. OFFICE OF WATER (OW) OW is responsible for ensuring safe drinking water and restoring and main- taining 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 transpar- ency 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. — 429 — Environmental Protection Agency 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: l 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 l 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. l A rule to ensure that CWA Section 30831 has a clear and enforced time limit. l A rule to clarify the standard for criminal negligence under CWA Sections 40232 and 404.33 l A rule to prohibit retroactive or preemptive permits under CWA Section 404. l A rule to promote and shape nutrient trading that utilizes a carrot-versus- stick approach when dealing with nutrient compliance. l A rule to update compensatory mitigation that imposes no new or additional requirements beyond current law. l A rule on updates necessary for the effective use of the CWA needs survey.

— 447 — Environmental Protection Agency 19. 42 U.S. Code § 7426(b), https://www.law.cornell.edu/uscode/text/42/7426 (accessed January 26, 2023). 20. 42 U.S. Code § 7410(k)(5)–(6), https://www.law.cornell.edu/uscode/text/42/7410 (accessed January 26, 2023). 21. 42 U.S. Code § 7601(a), https://www.law.cornell.edu/uscode/text/42/7601 (accessed January 26, 2023). 22. 42 U.S. Code § 7675, https://www.law.cornell.edu/uscode/text/42/7675 (accessed January 26, 2023). 23. 42 U.S. Code § 7411, https://www.law.cornell.edu/uscode/text/42/7411 (accessed January 26, 2023). 24. 42 U.S. Code § 7411(d). 25. 42 U.S. Code § 7412, https://www.law.cornell.edu/uscode/text/42/7412 (accessed January 26, 2023). 26. U.S. Environmental Protection Agency, “Summary of the Clean Water Act, 33 U.S.C. §1251 et seq. (1972),” last updated July 6, 2022, https://www.epa.gov/laws-regulations/summary-clean-water-act (accessed January 26, 2023). 27. U.S. Environmental Protection Agency, “Summary of the Safe Drinking Water Act, 42 U.S.C. §300f et seq, (1974),” last updated September 12, 2022, https://www.epa.gov/laws-regulations/summary-safe-drinking- water-acthttps://www.epa.gov/sdwa (accessed January 26, 2023). 28. Memorandum from David P. Ross, Assistant Administrator, Environmental Protection Agency, to Office of Water Program Directors, “Subject: Office of Water Policy for Draft Documents,” August 6, 2019, https:// www.epa.gov/sites/default/files/2020-12/documents/ow_policy_for_draft_documents_to_ow_program_ directors_signed_002.pdf (accessed January 26, 2023). 29. 33 U.S. Code § 1341, https://www.law.cornell.edu/uscode/text/33/1341 (accessed January 26, 2023). 30. Rapanos v. United States, 547 U.S. 715 (2006), https://supreme.justia.com/cases/federal/us/547/04-1034/ index.pdf (accessed January 25, 2023). 31. 33 U.S. Code § 1318, https://www.law.cornell.edu/uscode/text/33/1318 (accessed January 26, 2023). 32. 33 U.S. Code § 1342, https://www.law.cornell.edu/uscode/text/33/1342 (accessed January 26, 2023). 33. 33 U.S. Code § 1344, https://www.law.cornell.edu/uscode/text/33/1344 (accessed January 26, 2023). 34. U.S. Environmental Protection Agency, “Summary of the Resource Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (1976),” last updated September 12, 2022, https://www.epa.gov/laws-regulations/summary- resource-conservation-and-recovery-act (accessed January 27, 2023). 35. U.S. Environmental Protection Agency, “Summary of the Comprehensive Environmental Response, Compensation, and Liability Act (Superfund), 42 U.S.C. §9601 et seq. (1980),” last updated September 12, 2022, https://www.epa.gov/laws-regulations/summary-comprehensive-environmental-response- compensation-and-liability-act (accessed January 27, 2023). 36. 42 U.S. Code § 7412(r), https://www.law.cornell.edu/uscode/text/42/7412 (accessed January 27, 2023). 37. 42 U.S. Code § 6924(n), https://www.law.cornell.edu/uscode/text/42/6924 (accessed January 27, 2023). 38. U.S. Environmental Protection Agency, “Summary of the Toxic Substances Control Act, 15 U.S.C. §2601 et seq. (1976),” last updated October 4, 2022, https://www.epa.gov/laws-regulations/summary-toxic-substances- control-act (accessed January 27, 2023). 39. U.S. Environmental Protection Agency, “Summary of the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §136 et seq. (1996),” last updated September 12, 2022, https://www.epa.gov/laws-regulations/ summary-federal-insecticide-fungicide-and-rodenticide-act (accessed January 27, 2023). 40. U.S. Environmental Protection Agency, “Summary of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. §301 et seq. (2002),” last updated September 12, 2022, https://www.epa.gov/laws-regulations/summary-federal- food-drug-and-cosmetic-act (accessed January 27, 2023). 41. U.S. Environmental Protection Agency, “The Frank R. Lautenberg Chemical Safety for the 21st Century Act,” last updated March 24, 2022, https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/frank-r- lautenberg-chemical-safety-21st-century-act (accessed January 27, 2023), and “Highlights of Key Provisions in the Frank R. Lautenberg Chemical Safety Act for the 21st Century,” last updated February 12, 2020, https:// www.epa.gov/assessing-and-managing-chemicals-under-tsca/highlights-key-provisions-frank-r-lautenberg- chemical (accessed January 27, 2023). 42. U.S. Environmental Protection Agency, “Summary of the Endangered Species Act, 16 U.S.C. §1531 et seq. (1973),” last updated September 12, 2022, https://www.epa.gov/laws-regulations/summary-endangered- species-act (accessed January 27, 2023). 43. U.S. Environmental Protection Agency, “PRIA Overview and History,” last updated July 19, 2022, https://www. epa.gov/pria-fees/pria-overview-and-history (accessed January 27, 2023). — 448 — Mandate for Leadership: The Conservative Promise 44. Table, “EPA Budget by National Program Manager and Major Office,” in U.S. Environmental Protection Agency, United States Environmental Protection Agency Fiscal Year 2023 Justification of Appropriation Estimates for the Committee on Appropriations, p. 1076. 45. U.S. Environmental Protection Agency, “All Federal Advisory Committees at EPA,” last updated March 10, 2023, https://www.epa.gov/faca/all-federal-advisory-committees-epa (accessed March 20, 2023). 46. For example, EPA has steadfastly refused to follow Clean Air Act requirements that the Clean Air Scientific Advisory Committee provide, in the words of the U.S. Supreme Court, “unquestionably pertinent” advice on the “relative contribution to air pollution concentrations of natural… activity” as well as “any adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance” of the NAAQS. Memorandum from E. Scott Pruitt, Administrator, Environmental Protection Agency, to Assistant Administrators, “Subject: Back-to-Basics Process for Reviewing National Ambient Air Quality Standards,” May 9, 2018, p. 4, https://www.epa.gov/sites/default/files/2018-05/documents/ image2018-05-09-173219.pdf (accessed January 25, 2023) (cited hereafter as Pruitt Memorandum, May 9, 2018), and Whitman v. American Trucking Associations, 531 U.S. 457, 470 n.2 (2001), https://supreme. justia.com/cases/federal/us/531/457/case.pdF (accessed January 25, 2023). Similarly, EPA has refused to follow legal requirements dating to the late 1970s regarding congressional requests for scientific advice. Pruitt Memorandum, May 9, 2018; U.S. Government Accountability Office, “EPA Science and Advisory Panels: Preliminary Observations on the Processes for Providing Scientific Advice,” testimony of J. Alfredo Gómez, Director, Natural Resources and Environment, GAO, before the Subcommittee on Superfund, Waste Management, and Regulatory Oversight, Committee on Environment and Public Works, U.S. Senate, GAO-15-636T, May 20, 2015, https://www.gao.gov/products/gao-15-636t (accessed January 25, 2023); and U.S. Government Accountability Office, “EPA Science Advisory Board: Policy Statement on Science Quality and Integrity,” GAO-17-526R, June 8, 2017, https://www.gao.gov/assets/gao-17-526r.pdf (accessed January 25, 2023). 47. 31 U.S. Code § 3729 et seq., https://www.law.cornell.edu/uscode/text/31/3729 (accessed March 20, 2023). 48. See Pruitt Memorandum, May 9, 2018. 49. H.R. 4383, Federal Advisory Committee Act, Public Law 92-463, 92nd Congress, October 6, 1972, https://www. congress.gov/92/statute/STATUTE-86/STATUTE-86-Pg770.pdf (accessed March 20, 2023). 50. 15 U.S. Code Chapter 56A, https://www.law.cornell.edu/uscode/text/15/chapter-56A (accessed January 27, 2023). 51. Indian Environmental General Assistance Act of 1992, 42 U.S. Code § 4368b, https://www.law.cornell.edu/ uscode/text/42/4368b (accessed January 27, 2023). 52. See U.S. Environmental Protection Agency, Office of General Counsel, EPA Legal Tools to Advance Environmental Justice, May 2022, https://www.epa.gov/system/files/documents/2022-05/EJ%20Legal%20 Tools%20May%202022%20FINAL.pdf (accessed January 25, 2023), and U.S. Environmental Protection Agency, Office of General Counsel, Office of Policy, “Interim Environmental Justice and Civil Rights in Permitting Frequently Asked Questions,” August 2022, https://www.epa.gov/system/files/documents/2022-08/EJ%20 and%20CR%20in%20PERMITTING%20FAQs%20508%20compliant.pdf (accessed January 25, 2023). 53. 2 U.S. Code §§ 2000d–2000d-7, https://www.law.cornell.edu/uscode/text/42/chapter-21/subchapter-V (accessed January 27, 2023). 54. Students for Fair Admissions, Inc. v. University of North Carolina, No. 1:14CV954 (M.D.N.C. Sep. 30, 2019), https://www.leagle.com/decision/infdco20191008j38 (accessed January 27, 2023). 55. U.S. Environmental Protection Agency, EPA Region 2 Environmental Justice Action Plan, p. 24, https://www. epa.gov/sites/default/files/2016-03/documents/region_2_environmental_justice_action_plan.pdf (accessed January 27, 2023). 56. U.S. Environmental Protection Agency, “Summary of the National Environmental Policy Act, 42 U.S.C. §4321 et seq. (1969),” last updated September 12, 2022, https://www.epa.gov/laws-regulations/summary-national- environmental-policy-act (accessed January 27, 2023). 57. 31 U.S. Code § 1115, https://www.law.cornell.edu/uscode/text/31/1115 (accessed January 27, 2023).