1Listening Session:Proposed Rulemaking to Revise theWater Quality Standards RegulationPrepared by EPA Office of WaterOffice of Science and TechnologyAugust 20102Purpose•Provide informationto the public aboutEPA’s proposed rulemaking underdevelopment.•Provide opportunityfor the public toexpress views on the provisions EPA isconsidering.3Rulemaking Schedule•Conduct pre-proposal outreach andconsultation – August 2010•Publish proposed rule – Summer 2011•Continue outreach and consultation•Publish final rule –(date to be determined)4Outline of Briefing•What are water quality standards (WQS)?•Why revise the WQS regulation?•What issues is EPA considering?A.AntidegradationB.Administrator’sdeterminationC.UsesD.VariancesE.Triennial reviewsF.Reflect CourtDecisions1.WQS definition2.Compliance schedules3.Records of publicparticipation5What Are Water Quality Standards?Water quality standards are:•Legally binding provisions oflaw that describe the desiredcondition of a waterbody orthe level of protection.•The foundation of the waterquality-based control programmandated by the Clean Water Act (CWA).Water quality standards consist of:•Designated uses of the water body(e.g., recreation, water supply,aquatic life, agriculture).•Water quality criteria to protect designated uses (numericpollutant concentrations and narrative requirements).•An antidegradation policy to maintain and protect existing usesand high quality waters.•General policies addressing implementation issues.6Who Sets Standards?•Under the CWA, statesand authorizedtribesestablish standards.•States and tribes must hold publichearings to review their standards every 3years and revise them as necessary.•EPA must approve the standards in orderfor them to be in effect under the CWA.•When deemed necessary, EPA canimpose federal standards.7What Does the WQS RegulationDo?Adds detail to the CWA provisions for standards:•Defines when and how designated uses may berevised.•Requires criteria to protect uses.•Requires degradation of water quality to beprevented, except under certain circumstances.•Requires states/tribes to review their WQS everythree years and engage the public in anyrevisions to WQS.•Specifies roles of states, tribes, and EPA, andadministrative procedures.8Why Revise the WQS Regulation?•The core requirements of the regulation have been in place since1983.•The regulation has provided a solid foundation for water qualitybased controls.•The intent of the changes EPA isconsidering is to add or modifyprovisions to address the targeted areas described later in thisbriefing.•The regulation provides limitedguidance on recurring issues; EPAtends to “lead by its practice” in individual WQS actions which hasresulted in:–Some unresolved issues that constantly recur with different factpatterns; and–Some resolved issues not being codified for future use.9How Did EPA Develop the TargetedAreas?•Reviewed recurring issues•Reviewed evolving case law•Reviewed the 1998 advance notice of proposedrulemaking (“ANPRM”)•Consulted with a number of state WQS managers•Consulted with front-line EPA experts in Regionaloffices•Narrowed focus to areas where regulation changesseemed most appropriate10Targeted Areas EPA Is ConsideringA.Antidegradation:Require implementation methods tobe adopted in rule and specify minimum requirements.B.Administrator’s determination:Clarify what constitutesan Administrator’s determination under 303(c)(4)(B).C.Uses:Clarify EPA’s minimum expectations fordesignated uses.D.Variances:Establish a regulatory structure andtransparency for use of variances.E.Triennial Reviews: Strengthen the triennial reviewrequirements.F.Reflect Court Decisions:Define a WQS, addresscompliance schedule authorizing provisions, and reviseWQS submittal requirements.11A. Antidegradation•Current regulation:–Specifies that states and tribes must adoptspecificantidegradation policies, and must identifyimplementationmethods.•Issues:–Confusion concerning what implementation methods mustinclude.–Uncertainty about the role ofimplementation methods and EPA’soversight authority.•Possible changes:–Require antidegradation implementation methods to meet certainminimum requirements and to be adoptedinto states’ and tribes’WQS and thus submitted to EPAfor review and approval ordisapproval.12B. Administrator’s Determination•Current regulation:–EPA Administrator may determine that a revised or new standard isnecessary to meet the requirements of the CWA.–This determination then obliges EPA to promptly propose and finalizefederal standards, unless the state or tribe revises its standardsbeforehand.•Issue:–Regulation does not specify the process by which the Administratorutilizes the authority to determine if astate or tribe needs new or revisedWQS.•Possible change:–Clarify that an Administrator’s determination must be signed by theAdministrator (or designee) and include a statement that the documentis a determination under 303(c)(4)(B).13C. Uses•Current regulation:–Section 101(a)(2) of the CWA establishes a national goal for water quality:“protection and propagation of fish, shellfish, and wildlife, and recreation in andon the water,” wherever attainable.–A “use attainability analysis” is required tojustify removing a designated use thatis specified in 101(a)(2).–EPA’s longstanding interpretation is that 101(a)(2) uses are attainable unlessotherwise demonstrated.•Issue:–Regulation does not specify what uses, if any, must replace a 101(a)(2) use thatis removed, afteran appropriate UAA.•Possible changes:–Clarify that 1) the CWA goal uses are attainable unless otherwise demonstrated,and 2) where a use specified in 101(a)(2) is deemed unattainable, the HighestAttainable Use (HAU) closestto the goal must be adopted.14D. Variances•Current regulation:–States and tribes may adopt variances to WQS.•Issue:–Confusion concerning how to use variances.•Possible change:–Establish regulatory expectations for variances tosupport consistent, appropriate, transparent andenforceable implementation.15E. Triennial Reviews•Current regulation:–States and authorized tribes must hold a public hearing for the purposeof reviewing their WQS every three years and revise or adopt standardsas appropriate.•Issues:–Regulation does not require thatstates and tribes solicit publiccomments when determining the scope of their review.–Regulation does not explicitly require periodic evaluation of whethercriteria still protect the use.•Possible changes:–Clarify that states/tribes must solicit and consider public input indetermining the scope of a triennial review.–Require that states/tribes evaluate whether water quality criteria are stillprotective of designated uses, taking into consideration any newinformation (e.g. EPA recommendations).16F. Reflect Court Decisions•Definition of WQS (Florida Impaired Waters Rule)–Revise the definition of “water quality standards” at 40 CFR131.3 to more clearly define types ofstate/tribal provisions thatneed to be submitted to EPA for review and action.•Compliance schedule authorizing provisions (Starkist)–Specify that compliance schedule authorizing provisions must beadopted as part of a state or tribe’s water quality standards, andtherefore be submitted to EPA for review and action.•Submittal of public comments (Albuquerque v. Browner)–Clarify that state or tribalrecords of public participation andcomment response related to State or Tribal review and revisionof WQS must besubmitted to EPA.17For More Information•For updates about this rulemaking:–http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm•For more information about these listening sessions, andfor instructions on providing written comments:–http://water.epa.gov/lawsregs/lawsguidance/wqs_listening.cfm•For further information about water quality standardsunder the Clean Water Act:–http://water.epa.gov/scitech/swguidance/waterquality/standards/–http://water.epa.gov/scitech/swguidance/waterquality/standards/handbook/index.cfm18We Now Invite Your Questions andComments•At the direction of the Operator, please feel free to:–Ask clarifying questions (up to 1 minute per person, please)–Provide your views on the areas EPAis considering revising (upto 3 minutes per person, please).A.AntidegradationB.Administrator’sdeterminationC.UsesD.VariancesE.Triennial reviewsF.Reflect CourtDecisions1.WQS definition2.Compliance schedules3.Records of publicparticipationG.General views19Written Comments•If you were unable to make a comment during the listeningsession, or otherwise have comments on the regulatory changesEPA is considering, you may provide them to EPA by September3, 2010, in one of the following ways:–Send your comments by email toSHPDcomments@epa.gov–Mail your comments to:Thomas J. GardnerOffice of Science and Technology (Mail Code 4305T)Office of WaterU.S. Environmental Protection Agency1200 Pennsylvania Avenue, NWWashington, DC 20460•The full contents of your letter,or your email including your emailaddress, will be entered into theEPA Docket for this action, EPAHQ-OW-2010-0606, and available to the public athttp://www.regulations.gov/