—Alan Dulaney
With the upcoming inauguration of Joe Biden as the President of the United States, the massive changes in policy and statute that many expected would seem to be the wave of the future. But will they actually happen? And how would such changes impact water resources and water quality, particularly in the Southwest?
President-elect Biden has identified several major themes for his administration: COVID-19, economic recovery (including infrastructure), racial equity (including environmental justice), and climate change. None appear to explicitly focus on water as an issue deserving major attention, but water issues are built in to various themes, and often overlap between. To reduce lead concentrations in drinking water, for example, may touch upon the themes of infrastructure and environmental justice. The Flint lead contamination event remains fresh on the minds of the new Congress and the President-elect, but it is just one of many situations to be addressed.
The Navajo Nation is a prime example in the Southwest. Settlements are often dispersed across the rural landscape, without nearby wells to provide drinking water of sufficient quality or pipes to get the water to scattered homes. Many Navajo families must drive to wells, often equipped solely with windmills, to fill tanks or drums for their domestic supply. This is an infrastructure problem, but also an environmental justice issue. Spending on water would yield tangible improvements in public health in communities that need it, and the new administration may address this challenge.
Congress is now under Democratic control, but their margin remains narrow. The votes of only a few independent-minded Representatives or Senators could slow or halt the progress of the new administration’s legislative agenda, especially concerning climate change. Yet agencies retain rule-making authority under existing laws. New rule packages can be expected, especially in the environmental arena. However, litigation to block various rules may also be expected, so final adoption of rule packages may require a much longer timeframe than previously. Guidance documents, which do not have the power of rule but are substantive policy statements, can be more quickly revised to reflect priorities of the new administration. In the absence of new statutes and rules, the administration will likely turn to executive orders to accomplish their goals. The trend towards using executive orders when blocked by Congress or the courts has been accelerating for several years, and will not slow down in the new administration, especially if Congressional action proves more difficult than anticipated.
If “personnel is policy,” then several nominees for the new administration reveal probable directions. Michael Regan, picked to head the Environmental Protection Agency, has experience leading the North Carolina DEQ as well as many years at EPA under previous administrations. He was also an Associate Director with the Environmental Defense Fund for several years. Deb Haaland, nominated as Secretary of the Interior, is the first tribal member (Laguna Pueblo) to achieve Cabinet rank, and currently serves as Vice-Chair of the House Natural Resources Committee. She will bring in an understanding of Western water issues and tribal concerns. Brenda Mallory will chair the Council on Environmental Quality. Her previous experience includes a stint as Chief Counsel for CEQ, top EPA lawyer in the Obama administration, and Director of Regulatory Policy for the Southern Environmental Law Center. Jennifer Granholm, former Governor of Michigan, has been nominated as Secretary of Energy. Emissions and climate change are closely linked, but water is also an integral feature of energy production. These people are all experienced in government, with deep knowledge of policy, and dedicated to reversing impacts of climate change. They will be aggressive in rule-making and compliance actions.
What changes can be expected? Lead, PFAS, and microplastics will likely receive the most intense regulatory scrutiny, but other water-borne contaminants will not be ignored. Plastics may become regulated under narrative water quality standards under the Clean Water Act, one of the most useful weapons in the Federal arsenal. PFAS may be classified as a hazardous substance under the Resource, Conservation, and Recovery Act, and therefore part of CERCLA activities. Lead will be approached under Safe Drinking Water Act authority. More stringent regulations on trichloroethylene, methyl chloride, and other compounds can be expected, even though the basic structures of RCRA, CERCLA, SDWA, and CWA will not be tampered with. Compliance activities will most certainly be accelerated. Most of these changes will revolve around increased Federal concern for environmental issues, in keeping with President-elect Biden’s emphasis on climate change. State agencies such as ADEQ will be carried along with the wave, requiring more funding, staff, and potentially revising delegation agreements.
The rule defining the Waters of the United States (WOTUS) is already mired in litigation. This rule probably will be pulled, substantially revised, re-submitted for comment, adopted, and litigated yet again. WOTUS is a rule which has substantive impacts in the Southwest, engenders strong opinions, and thus has both advocates and detractors. But the evolution of this rule is one that hydrologists need to follow.
Funding will necessarily increase. The Federal budget proposal (from the outgoing administration) already contains more money for infrastructure; in the new administration, funding could grow substantially. More dollars will also make compliance actions more frequent. More staff will be hired. More investigations will be pursued. None of this will happen right away, as the Federal juggernaut must gather speed, but it cannot help but impact the Southwest.
If increased funding, limited new legislation, stepped up rule-making, and aggressive compliance become the hallmarks of the new administration’s environmental policies, what does that mean for AHS members? Consultants will want to closely track all new rules, and changes in guidance for existing rules. Consulting firms may wish to polish their compliance credentials and demonstrate to clients their familiarity with rules and regulatory personnel. Labs might see increased workloads as environmental sampling picks up. PFAS and lead expertise might be selling points with clients. Drillers may see increased activity as new wells are constructed on reservations to provide more water for tribal members.
Once COVID-19 is no longer an inhibiting factor, AHS may be in a position to facilitate greater communication between members and regulators through symposia or other meetings. All in all, a substantial increase in environmental business activity may result from the new administration and Congress, although it may take several months for this wave to get rolling. AHS members will find their skill sets in greater demand than ever.