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11.20.2017 Legal News

Deputy Assistant Administrator for EPA’s Office of Water Provides Environmental Policy Insights

Lee Forsgren was appointed Deputy Assistant Administrator for EPA’s Office of Water in July 2017.  We recently had the opportunity to hear him speak to a trade group where he discussed EPA’s priorities under the Trump Administration as well as specifics about the agency’s water activities.  Here is what we gleaned from his presentation.

Top Eight EPA Policy Insights:

1. Cooperative Relationship Between EPA and States.  EPA wishes to foster a cooperative federalism approach with states.  If a state chooses to enact stricter environmental laws than federal environmental laws, EPA will not intercede even if EPA disagrees with the state policy.  Forsgren provided an example in which a state decided to enact an environmental law that EPA did not believe was necessary, yet EPA did not object.  Forsgren suggested that states will have more power to follow their own prerogatives as long as they act within the boundaries of the law.  No longer will there be a parent-child relationship.

2. Lawsuits will not drive policy.  EPA will act in accordance with the law and administrative procedures, but the threat of lawsuits will not drive the agency’s policy.  EPA management recognizes that EPA is likely to be sued no matter what position the agency takes.

3. Public-Private Partnerships.  Success in the past has come from successful public-private partnerships.  Forsgren specifically mentioned this concept in the context of developing more water infrastructure.  This Administration will foster ideas that involve leveraging these relationships.

4. Patience is a virtue.  EPA is engaged in numerous rulemaking activities.  For example, the Waters of the United States (“WOTUS”) rulemaking to redefine waters of the United States generated more than 200,000 comments.  EPA must respond to all substantive comments.  That will take time, and it will affect the timeline for rule development.

5. Zero Tolerance for Deliberate Acts.  EPA will be tough on environmental crimes.  Deliberate dischargers of pollution will face harsh consequences.  Forsgren suggested that tolerance for environmental crimes would be less than in prior Administrations.

6. Top Two Substantive Priorities.  Forsgren indicated that EPA is working diligently on repeal and replacement of the WOTUS rule and Clean Power Plan.

7. Enforcement priorities will change.  In the past, EPA has generated a list of the top industries on which it would focus enforcement efforts.  For example, in recent years, electric utilities, glass makers, Portland cement manufacturing, and refiners have been on this industry list.  The Trump Administration will depart from this paradigm for enforcement.  Industry groups will no longer be targeted.  Instead, EPA will target individual companies based on their own merits, focusing on bad actors instead of concentrating on industry groups.

8. Public participation is welcome.  EPA encourages public input from all sources to help the Administration develop ideas and benefit from additional information.

Specific Water Issues

Forsgren provided an update on activities at the Office of Water.  He noted that water infrastructure for public water supply is a significant priority for the Administration.  EPA hopes to provide more grants to improve water infrastructure.  For example, EPA is considering how to provide more funding to mitigate the health impacts of lead in water supply lines.  Forsgren suggested that simply replacing municipal water distribution lines will not necessarily solve the problem because those lines are not always the source of the lead.  Forsgren cited as an example a city on the west coast that has high lead levels in its municipal water, but no lead in its distribution lines.  The problem is complicated because many people have lead and copper lines in their homes.  EPA believes corrosion control helps to improve water quality, but is not a substitute for replacement.

Forsgren also discussed the WOTUS rule and noted that EPA’s proposed rule issued in July 2017 would rescind the definition of “Waters of the United States” promulgated in the 2015 Clean Water Rule.  He indicated this is the first step of a two-step process designed to return EPA and the Corps of Engineers’ jurisdiction to pre-Obama Administration status and resolve the areas in which jurisdiction is not clear.  As the second step, EPA plans to propose a new definition and has begun having discussions with states, municipalities and other stakeholders on this topic.  EPA’s goal is to promulgate a new definition by the end of 2018.