October 26, 2020

Volume X, Number 300

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October 23, 2020

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EPA Proposes New, More Flexible Clean Water Act Affordability Guidance for Public Utilities

Public water, wastewater, and stormwater utilities face an array of compliance obligations under the federal Clean Water Act (CWA) that require investment in upgrades and maintenance of critical wastewater infrastructure. These utilities also face the prospect of replacing water infrastructure as it approaches the end of its useful life. These infrastructure projects involve enormous costs that are ultimately borne by ratepayers. Those with the lowest incomes feel the burden most acutely.

On September 15, 2020, the U.S. Environmental Protection Agency released for comment its Proposed 2020 Financial Capability Assessment Guidance (Proposed 2020 FCA), signaling a change in how the agency considers the financial burdens when developing implementation schedules for CWA permits and consent decrees applicable to public utilities. If adopted in its current form, the Proposed 2020 FCA promises utilities that financial capability assessments will better consider the economic impact of CWA obligations on low-income populations and will provide greater flexibility in how these assessments are conducted. These changes are, in no small part, the result of a substantial stakeholder engagement process that included submission to EPA of an April 2019 report by the American Water Works Association, the National Association of Clean Water Agencies, and the Water Environment Federation.

The 2020 Proposed FCA builds on—rather than discards—EPA’s existing financial capability assessment guidance: the 1997 Combined Sewer Overflows - Guidance for Financial Capability Assessment and Schedule Development (1997 FCA Guidance) and the 2014 Financial Capability Assessment Framework for Municipal Clean Water Act Requirements (2014 FCA Framework). Under the existing guidance, EPA employs a two-phased approach to evaluating a municipality’s ability to bear the cost of projects required by the CWA:

  • Phase 1 – Residential Indicator (RI): The RI entails calculation of the per-household cost of CWA projects expressed as a percentage of median household income (MHI). Costs exceeding 2% of MHI are assigned a “high” (as opposed to medium or low) RI.
  • Phase 2 – Financial Capability Indicator (FCI): The FCI requires an evaluation of a utility’s overall financial health and the demographics of its ratepayers.

Based on the RI and FCI, EPA then uses a matrix to determine whether a set of proposed CWA projects impose a low, medium, or high financial burden on the utility and its community. That burden then serves as a basis for determining—either in a permit or consent decree—the length of time over which a utility must implement a series of CWA-driven projects. The implementation schedule is set with the objective of avoiding excessive burdens on utilities and their ratepayers.

The Proposed 2020 FCA provides two alternatives for assessing a utility’s financial capability. The first alternative retains the RI and FCI, while adding a Lowest Quintile Residential Indicator (LQRI) and Poverty Indicator (PI) to the assessment process. LQRI reflects the cost per low-income household, expressed as a percentage of the lowest quintile income. PI uses five benchmarks to evaluate the prevalence of poverty in a utility’s service area. The second alternative marks a more drastic departure from EPA’s prior financial capability approach, using financial and rate modeling in conjunction with the PI score.

EPA also proposes that, under either approach, a utility may use additional metrics to provide EPA with a more complete picture of its financial capabilities and the financial impact of CWA projects on ratepayers. The additional metrics include drinking water and asset management costs, stormwater management costs, customer assistance programs, unemployment, and population trends. Consideration of these additional metrics may help EPA and a utility conduct a more holistic assessment of the impact of permit or consent decree terms on a community so that they can develop an appropriate implementation schedule.

EPA released the 2020 Proposed FCA in order to obtain comments from the public. Comments will be due 30 days after the publication of a notice in the Federal Register, which has not yet occurred.

© 2020 Beveridge & Diamond PC National Law Review, Volume X, Number 262
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Richard S. Davis Clean Water Act Attorney Beveridge & Diamond Washington, DC
Principal

Richard uses his 40 years of Clean Water Act experience to find cost-effective solutions for the complex regulatory challenges that his business clients face.

Since joining Beveridge & Diamond in 1981, Richard has practiced almost exclusively under the federal Clean Water Act and its state analogues, chairing or co-chairing the firm’s Clean Water Practice Group for more than 15 years, and helping direct one of the nation’s most innovative and dynamic clean water practices.

Richard has represented individual industrial dischargers and industry groups, as well as local...

202-789-6025
Mackenzie S. Schoonmaker Environmental Litigation Attorney Beveridge & Diamond New York, NY
Principal

Mackenzie’s practice includes both litigation and regulatory matters arising under FIFRA, the Clean Water Act, and related environmental laws.

She is passionate about conserving air, water, wildlife, and land for future generations, and enjoys helping clients navigate and enforce the detailed framework of environmental law because she believes compliance is key to preventing adverse impacts to the environment.

Mackenzie is a co-chair of Beveridge & Diamond’s Industrial Hemp & Cannabis industry team. She advises clients, and regularly writes and presents, on federal and state environmental regulations impacting this thriving industry. 

Under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), Mackenzie represents pesticide companies in data compensation arbitrations, focusing on defending the rights of data owners against follow-on registrants of pesticides. She has also worked extensively with task forces comprised of national and multinational companies of all sizes that operate as joint ventures or limited liability companies to generate data and other information to meet government requirements under FIFRA.

Among the wide range of issues under the Clean Water Act that Mackenzie has handled are assisting companies with responses to Clean Water Act Section 308 information requests and Clean Water Act Section 404 compensatory mitigation requirements.

Mackenzie also defends public utilities against toxic tort claims. She was part of the team that obtained a defense judgment after a three-week trial regarding claims alleging that the client supplied corrosive water to apartment buildings. The case, Cormier v. D.C. WASA, 2011 D.C. Super. Lexis 7, 84 A.3d 492 (2013), was successfully upheld on appeal.

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Andrew C. Silton Environmental Litigation Attorney Beveridge & Diamond Washington, DC
Principal

Andrew C. Silton guides clients through complex regulatory issues and high stakes litigation arising under the nation's clean water laws.

His practice focuses primarily on issues arising under the nation’s water quality laws and spans regulatory counseling, enforcement defense, and litigation. He is currently the Deputy Chair of the firm’s Water Practice Group and represents clients from both the private and public sectors in matters arising under the Clean Water Act and state law. Drew advises clients in a variety of sectors, ranging from waste and stormwater utilities to companies...

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Susan E. Smith Environmental Litigation Attorney Beveridge & Diamond San Francisco, CA
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Susan maintains a national litigation practice focused on toxic tort, drinking water contamination, and related insurance coverage.

She defends environmental claims, counsels on environmental regulatory matters, advocates for companies before regulatory authorities and in investigations, and guides clients through incident response and clean up with a focus on minimizing the threat or impact of future litigation.

Susan has nearly 20 years of experience defending clients in various industries against claims alleging personal injury as a result of chemical or toxic exposures....

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Timothy M. Sullivan Environmental & Natural Resources Litigation Attorney Beveridge & Diamond Baltimore, MD
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Tim Sullivan’s practice focuses primarily on environmental and natural resources litigation before federal and state courts and adjudicatory bodies.

He represents and advises public and private clients in regulatory, litigation, and other matters involving many federal and state environmental and natural resources laws, with a particular emphasis on Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), the Endangered Species Act (ESA), and the Clean Water Act. Tim is the Managing Principal of Beveridge & Diamond's Baltimore office. 

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