Water Spring 2023 Report

I. EPA and States Step Up Efforts to Address PFAS Contamination

• On March 13, 2023, the EPA announced a proposed rule that would establish a National Primary Drinking Water Regulation (“NPDWR”) for six PFAS compounds: PFOA, PFOS, perfluorohexane sulfonic acid (“PFHxS”), hexafluoropropylene oxide dimer acid (“HFPO-DA”) and its ammonium salt (a GenX chemical), perfluorononanoic acid (“PFNA”), and perfluorobutane sulfonic acid (“PFBS”). The proposed rule would allow the EPA to regulate these additional four compounds under the Safe Drinking Water Act.
• The proposed rule would also include maximum contaminant level goals (“MCLG”) for these compounds:
  • 4 ppt for PFOA and PFOS (individually). The health-based MCLG (the level at which no known or anticipated adverse effects on the health of persons occur) for these compounds is set at zero – however, given feasibility concerns, including currently available analytical methods to measure and treat these chemicals in drinking water, EPA is proposing 4 ppt.
  • The MCLG for the other four compounds takes the form of a hazard index (“HI”), which is the sum of component hazard quotients, which are calculated by dividing the measured regulated PFAS component concentration in water by the associated Health-Based Water Concentration. For these compounds, a mixture HI greater than 1.0 is an exceedance of the MCLG and indicates an exceedance of the health protective level and indicates potential human health risk from the PFAS mixture in drinking water.
• The proposed rule would require compliance three years after promulgation. To demonstrate rule compliance, within the three years following promulgation, groundwater systems serving a population greater than 10,000 will be required to demonstrate their baseline concentrations using data from four quarterly samples collected over a four-year period.
  • Groundwater systems serving less than 10,000 may collect two quarterly samples at least 90 days apart over a one-year period for the purpose of initial monitoring.
  • EPA is proposing that systems with appropriate, previously acquired monitoring data from UCMR-5, state-led, or other applicable monitoring programs using EPA Methods 533 or 537.1, will not be required to conduct separate initial monitoring for regulated PFAS.
• Water systems with PFAS levels that exceed the proposed MCLs would need to take action to provide drinking water which meets the NPDWR by the compliance dates established in the rule, when final.
• Funding from the Bipartisan Infrastructure Law will be used to assist many disadvantaged communities, small systems, and others with the costs of installation of treatment when it might otherwise be cost-challenging.
• The EPA is currently seeking public comment on the proposed rule, and it expects the rule to be finalized by the end of 2023.
• On October 5, 2022, the New York State Department of Health (“NYSDOH”) proposed regulations that would adopt maximum contaminant levels (“MCL”) for four additional PFAS substances (MCLs of 10 ppt for PFOA and PFOS are already in place).
• The proposed regulations would include MCLs of 10 ppt each for PFHxS, perfluoroheptanoic acid (“PFHpA”), PFNA, and perfluorodecanoic acid (“PFDA”). In addition, a combined MCL of 30 ppt is proposed for the sum of PFOA/PFOS and the compounds listed above.
  • According to NYSDOH, adoption of these MCLs would result in an estimated 1.46% increase in MCL violations.
  • Initial monitoring for these compounds must be completed by December 31, 2023 – the MCLs would take effect January 1, 2025.
• The proposed regulations would also establish notification levels for an additional 19 PFAS compounds, with a 30 ppt notification level applying to the sum of six PFAS compounds and a 100 ppt notification level applying to the sum of 13 PFAS compounds.
  • Notification levels are “the concentration level of an emerging contaminant in drinking water that the commissioner has determined, based on available scientific information, warrants public notification and may require actions, which may include enhanced monitoring and activities to reduce exposure…”
  • NYSDOH established these levels by performing an evaluation of liver toxicity effect levels, human half-lives, established reference doses, and chemical structure similarities.
  • In the event a contaminant is present in drinking water at concentrations at or above a notification level:
    • The water system shall notify the NYSDOH within 24 hours;
    • The water system shall notify all owners of real property no more than 90 days after the presence of the contaminant is confirmed; and
    • The water system may be required by the NYSDOH Commissioner to take such actions as may be appropriate to reduce exposure to the contaminants.

II. Colorado River States Disagree on Water Allocation

• Seven Western states (Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming) receive parts of their water supply from the Colorado River pursuant to the Colorado River Compact signed in 1922.
• For the purposes of allocating water, the states are separated into an Upper Basin (Colorado, New Mexico, Utah and Wyoming) and a Lower Basin (Arizona, California and Nevada). The Lake Powell reservoir stores most of the water for the Upper Basin states and the Lake Mead reservoir stores most of the water for the Lower Basin states.
• On May 25, 2021, the water elevation of the Lake Mead reservoir dropped below 1,075 feet, the lowest level it has reached since the 1930s. The elevation continues to fall, and was measured at 1,047 feet for March 2023.
• Similarly, in July 2021, water levels of the Lake Powell reservoir fell to their lowest point since 1969 (approximately 3,546 feet). The elevation continues to fall, and is down to approximately 3,520 feet as of March 2023.
• Pursuant to a Record of Decision issued in 2007 by the United States Bureau of Reclamation (“USBR”), the USBR has implemented interim guidelines with respect to the operation and management of the waters of the Colorado River stored in Lake Powell and Lake Mead, including the conditions under which releases from the reservoirs would be reduced.
  • Due to drought conditions in the last two years, the USBR has mandated water cuts for Arizona and Nevada. California is the other Lower Basin state, but it has not had its allocation reduced as part of these cuts.
• In July 2022, the commissioner for the USBR told a U.S. Senate Committee that the seven states must come up with an emergency deal to conserve between 2 and 4 million acre-feet of water in the next year to protect the Colorado River water system. The states were not able to come to an agreement.
• On October 28, 2022, the U.S. Department of the Interior (“DOI”) announced it was taking expedited steps to prepare new measures that, based on current and projected hydrologic conditions, are needed to improve and protect the long-term sustainability of the Colorado River System.
• On November 17, 2022, as part of the steps laid out in the October 28, 2022 DOI announcement, the USBR issued a Notice of Intent (“NOI”) to Prepare a Supplemental Environmental Impact Statement (“SEIS”) for the Record of Decision. The NOI summed up the water shortage issues in the following way:

“The limited water supplies of the Colorado River are declining, and the Colorado River Basin is currently experiencing a prolonged period of drought and record-low runoff conditions resulting in historically low reservoir levels at Lake Powell and Lake Mead. The period from 2000 through 2022 is the driest 23-year period in more than a century and one of the driest periods in the last 1,200 years. Absent a change in hydrologic conditions, water use patterns, or both, Colorado River reservoirs will continue to decline to critically low elevations threatening essential water supplies across nine states in the United States and [Mexico]. It is foreseeable that without appropriate responsive actions and under a continuation of recent hydrologic trends, major Colorado River reservoirs could continue to decline to ‘dead pool’ – elevations at which water cannot be regularly released from a reservoir – in coming years.”

• Through the SEIS, which is due to be finalized in Summer 2023, the USBR intends to revise the operating conditions for Lake Powell and Lake Mead, including the imposition of further cuts on the Lower Basin states. The SEIS also asked for alternative proposals from the seven states demonstrating how they could meet the USBR’s request to voluntarily reduce water usage by 2-4 million acre feet.
• In January 2023, six of the states (not including California) provided a proposal that would require significant cuts to the Lower Basin states in the event Lake Mead was at or below 1,050 feet.
  • For example, if Lake Mead was at or above 1,050 feet, Arizona would receive a 240,000 acre-feet cut, Nevada would receive a 10,000 acre-feet cut, and California would receive a 350,000 acre-feet cut. To the extent the elevation fell further, further cuts from these states would be required.
• California submitted its own proposal in January 2023. This proposal included a voluntary reduction of 1 million acre-feet in 2023 (400,000 from California, 560,000 from Arizona, and 40,000 from Nevada). For further cuts, the proposal stated “In the absence of a seven-state consensus proposal, the SEIS process and the preferred alternative should maintain existing protections to California’s senior entitlements…”
• Given the lack of an agreed to alternative, it is likely the USBR will impose unilateral cuts in 2023 through the SEIS process.
• While significant storms in early 2023 provided some drought relief for California, the impact on the elevation of Lake Mead has been minor – according to reports, the rain and snow received this year would need to be replicated for the next few years in a row in order to alleviate the water shortage.