Listening Session

Proposed Rulemaking to ReWater Quality Standards Reg

Prepared by EPA Office of Water

Office of Science and Technology

August 2010
Purpose

• Provide information to the pu

EPA’s proposed rulemaking undevelopment.

• Provide opportunity for the pu

express views on the provisionconsidering.
Rulemaking Schedu

• Conduct pre-proposal outreach 

consultation – August 2010

• Publish proposed rule – Summ• Continue outreach and consult• Publish final rule – (date to be dete
Outline of Briefing

• What are water quality standar• Why revise the WQS regulation• What issues is EPA considerin

A. AntidegradationB. Administrator’s 

determination

C. UsesD. Variances

E. TrienniaF. Reflect 

Decisio1. WQS 2. Comp3. Reco

partic
What Are Water Quality Sta

Water quality standards are:• Legally binding provisions of law that describe t

condition of a waterbody or the level of protecti

• The foundation of the water quality-based contr

mandated by the Clean Water Act (CWA). 

Water quality standards consist of:• Designated uses of the water body (e.g., recrea

aquatic life, agriculture).

• Water quality criteria to protect designated uses 

pollutant concentrations and narrative requirem

• An antidegradation policy to maintain and prote

and high quality waters.

• General policies addressing implementation iss
Who Sets Standar

• Under the CWA, states and aut

tribes establish standards.

• States and tribes must hold pub

hearings to review their standayears and revise them as nece

• EPA must approve the standar

for them to be in effect under th

• When deemed necessary, EPA 

impose federal standards.
What Does the WQS Re

Do?

Adds detail to the CWA provisions for • Defines when and how designated 

revised.

• Requires criteria to protect uses.• Requires degradation of water qual

prevented, except under certain circ

• Requires states/tribes to review the

three years and engage the public irevisions to WQS.

• Specifies roles of states, tribes, and 

administrative procedures.
Why Revise the WQS Reg

• The core requirements of the regulation have bee

1983. 

• The regulation has provided a solid foundation for 

based controls.

• The intent of the changes EPA is considering is to 

provisions to address the targeted areas describebriefing.

• The regulation provides limited guidance on recur

tends to “lead by its practice” in individual WQS aresulted in:

– Some unresolved issues that constantly recur 

patterns; and

– Some resolved issues not being codified for fu
How Did EPA Develop the T

Areas?

• Reviewed recurring issues• Reviewed evolving case law• Reviewed the 1998 advance notice o

rulemaking (“ANPRM”)

• Consulted with a number of state WQ• Consulted with front-line EPA experts 

offices

• Narrowed focus to areas where regu

seemed most appropriate
Targeted Areas EPA Is Con

A. Antidegradation: Require implementat

be adopted in rule and specify minimum 

B. Administrator’s determination: Clarify 

an Administrator’s determination under 3

C. Uses: Clarify EPA’s minimum expectat

designated uses.

D. Variances: Establish a regulatory struc

transparency for use of variances.

E. Triennial Reviews: Strengthen the trien

requirements.

F. Reflect Court Decisions: Define a WQ

compliance schedule authorizing provisiWQS submittal requirements.
A. Antidegradatio

• Current regulation:

– Specifies that states and tribes must adopt sp

antidegradation policies, and must identify imp

methods. 

• Issues: 

– Confusion concerning what implementation m

include.

– Uncertainty about the role of implementation m

oversight authority.

• Possible changes:

– Require antidegradation implementation meth

minimum requirements and to be adopted into 

WQS and thus submitted to EPA for review andisapproval.
B. Administrator’s Determ

• Current regulation: 

– EPA Administrator may determine that a revised or 

necessary to meet the requirements of the CWA.

– This determination then obliges EPA to promptly pr

federal standards, unless the state or tribe revises beforehand.

• Issue: 

– Regulation does not specify the process by which t

utilizes the authority to determine if a state or tribe WQS.

• Possible change:

– Clarify that an Administrator’s determination must b

Administrator (or designee) and include a statemenis a determination under 303(c)(4)(B).
C. Uses

• Current regulation:

– Section 101(a)(2) of the CWA establishes a national goal 

“protection and propagation of fish, shellfish, and wildlife, 

on the water,” wherever attainable.

– A “use attainability analysis” is required to justify removin

is specified in 101(a)(2). 

– EPA’s longstanding interpretation is that 101(a)(2) uses a

otherwise demonstrated.

• Issue:

– Regulation does not specify what uses, if any, must repla

is removed, after an appropriate UAA.

• Possible changes: 

– Clarify that 1) the CWA goal uses are attainable unless ot

and 2) where a use specified in 101(a)(2) is deemed unatAttainable Use (HAU) closest to the goal must be adopted
D. Variances

• Current regulation: 

– States and tribes may adopt variances 

• Issue:

– Confusion concerning how to use varia

• Possible change:

– Establish regulatory expectations for v

support consistent, appropriate, transpenforceable implementation.
E. Triennial Review

• Current regulation:

– States and authorized tribes must hold a public hea

of reviewing their WQS every three years and revisas appropriate.

• Issues:

– Regulation does not require that states and tribes s

comments when determining the scope of their rev

– Regulation does not explicitly require periodic evalu

criteria still protect the use.

• Possible changes:

– Clarify that states/tribes must solicit and consider p

determining the scope of a triennial review.

– Require that states/tribes evaluate whether water q

protective of designated uses, taking into considerainformation (e.g. EPA recommendations).
F. Reflect Court Decis

• Definition of WQS (Florida Impaired Wate

– Revise the definition of “water quality standard

131.3 to more clearly define types of state/trib

need to be submitted to EPA for review and a

• Compliance schedule authorizing provisio

– Specify that compliance schedule authorizing 

adopted as part of a state or tribe’s water quatherefore be submitted to EPA for review and 

• Submittal of public comments (Albuquerq

– Clarify that state or tribal records of public par

comment response related to State or Tribal rof WQS must be submitted to EPA.
For More Informatio

• For updates about this rulemaking:

– http://water.epa.gov/lawsregs/lawsguidance/w

• For more information about these listenin

for instructions on providing written comm

– http://water.epa.gov/lawsregs/lawsguidance/w

• For further information about water quality 

under the Clean Water Act:

– http://water.epa.gov/scitech/swguidance/wate– http://water.epa.gov/scitech/swguidance/wate

handbook/index.cfm
We Now Invite Your Quest

Comments

• At the direction of the Operator, please fe

– Ask clarifying questions (up to 1 minute per pe– Provide your views on the areas EPA is consi

to 3 minutes per person, please). 

A. AntidegradationB. Administrator’s 

determination

C. UsesD. Variances

E. TrienniaF. Reflect 

Decisio1. WQS 2. Comp3. Reco

partic

G. Genera
Written Comment

• If you were unable to make a comment during t

session, or otherwise have comments on the re

EPA is considering, you may provide them to E

3, 2010, in one of the following ways:

– Send your comments by email to SHPDcommen– Mail your comments to:

Thomas J. Gardner Office of Science and Technology (Mail Code 43Office of Water U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 

• The full contents of your letter, or your email inc

address, will be entered into the EPA Docket foHQ-OW-2010-0606, and available to the public 

http://www.regulations.gov/