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June 28, 2019
Guidance on modernizing CWA public hearings

The use of computers and Internet conferencing are well-established tools for business meetings. But that may not be the case for states and Indian tribes that hold the public hearings that Clean Water Act (CWA) Sections 303(c)(1) and 101(e) and 40 CFR 131.20(b) require when amending or reviewing water quality standards (WQSs). One reason states and tribes may be behind the technology curve is that the minimum requirements for a public hearing—e.g., publishing a notice of the hearing, provisions for witnesses, and making a record of the hearing—are specified at 40 CFR 25.5, a section that was written before and has not been revised since use of the Internet became common. In a new guidance document, the EPA clarifies that states and tribes may incorporate electronic communication into their public hearing processes. Furthermore, the guidance describes factors to consider and best practices to help states and WQS-authorized tribes make the transition.   

In Modernizing Public Hearings for Water Quality Standard Decisions Consistent with 40 CFR 25.5, the EPA’s Office of Water notes that public hearings for WQSs are more formal than other public input formats, such as webinars or public meetings. 

“While webinars or public meetings may serve their own unique purpose for state or WQS-authorized tribes during the WQS process, states and WQS-authorized tribes are required to hold public hearings that comply with 40 CFR 25.5 at least every three years,” says the EPA.

The Agency adds that states and WQS-authorized tribes have choices about if, when, and how to incorporate modern technology into their public hearing processes, regardless of whether choosing to hold the public hearing in person, online, or as a hybrid of the two.

Factors to consider

Decisions about WQS public hearings should be based on the circumstances of the public being served and the consequences and implications of the review or rulemaking. For example:

  • Public accessibility to and acceptance of computers and the Internet. In some areas, limited access to computers (e.g., in disadvantaged or economically stressed communities) or limited Internet infrastructure (e.g., in rural areas) could affect the public’s ability to be notified of or participate in a public hearing using technology. Additionally, social and cultural practices vary throughout the country (e.g.,some tribal communities value in-person interaction over other forms).
  • The geographic scope of a WQS decision. If the scope of a WQS decision applies to a small geographic area, an in-person public hearing may be more appropriate to engage the public with the most interest in and information about the water bodies at issue. On the other hand, when the WQS applies to a broad area, conducting a public hearing with opportunity for remote participation may make it accessible to a broader audience.
  • The nature of a WQS decision. When the state or WQS-authorized tribe expects high public interest in a particular WQS action, it may wish to consider using technology (e.g., online or hybrid public hearing) to accommodate more participants.  

Best practices

The guidance lists 12 best practices for successful modernization, including:

  • Have a transition period to introduce technology into the public hearing process. This may reduce public concern over an abrupt, major change in known public hearing processes.
  • Make the participants’ experience as similar to an in-person public hearing as possible. For example, if commenters attending in person are permitted to use visual aids, other commenters attending remotely should also be able to provide their own visual aids.
  • For WQS-authorized tribes with newly granted treatment-as-a-state (TAS) status, consider conducting in-person public hearings first with a public survey. This practice will provide such tribes with direct experience conducting an in-person public hearing and will allow their public to provide feedback on the potential use of online public hearings.
  • Conduct an internal dry run. A hybrid or online public hearing may involve multiple people, such as moderators, presenters, people who manage the Web conferencing platform software, people collecting and sorting online questions, and people on standby to address participants’ technical issues. Having a few dry runs could help solidify roles and minimize technical issues during the actual hybrid or online public hearing.

Other considerations

Additional adjustments to the existing public hearing process will likely smooth the transition to modernization. These include how to advertise the public hearing online; the use of e-mails to notify interested and affected parties; making relevant materials available online; and including instructions on what modernization entails in the online notice or in confirmation e-mails sent to participants.

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