Rescission of Memorandum Entitled: “Policy for the EPA's Review and Action on Clean Water Act Program Submittals”
On February 4, 2022, EPA Assistant Administrator for Water Radhika Fox sent a memorandum to the agency’s regional offices rescinding a June 3, 2019 memorandum regarding review of certain Clean Water Act submissions. The 2019 memorandum covered EPA review of actions by states and authorized tribes, including establishing new or revised water quality standards, biennial lists of waters determined to be impaired, and total maximum daily loads. The 2019 memorandum weakened the agency’s ability to substantively review these submissions while engaging with state co-regulators and authorized tribes. Administrator Fox’s February 2022 memorandum instead directs EPA career senior leaders in the Office of Water to issue memoranda to restore longstanding processes for review of those submissions.
The 2019 memo also included a statement that EPA would interpret section 303(c) of the Clean Water Act as requiring the publication of proposed federal water quality standards within 90 days after a state or authorized tribe fails to remedy an EPA disapproval of any water quality standards. EPA has reconsidered this interpretation and concludes that is not supported by the Act. In light of Congress’ decision not to set a specific timeframe for EPA to propose federal regulations under section 303(c)(4), EPA’s current view is that case-specific circumstances involved in EPA’s proposal of federal regulations can, and should, inform what constitutes prompt action under this provision.