Tribes-only Consultationand Coordination Webinar:Water Quality Standards RegulatoryClarifications Proposed RulePrepared by EPA Office of WaterOffice of Science and TechnologyNovember 19, 2013EPA Representatives• Co-Presenters– Janita Aguirre– Christina Christensen– Heather Goss• Moderators– Grace Robiou– Shari Barash– Manjali Vlcan2•Access the audio portion of today’s webinar by:–Option 1:Using your computer speakers and/or headphones–Option 2:Joining the teleconference by calling• Call-in Number:866-299-3188• Code:202 566 1149 #•If you are experiencing technical difficulties:– Click the ‘Help’ button at the top of your screen; or– Type your issue in the ‘Q&A’ box on the right hand side of yourscreen.•To Ask a Clarifying Question:Type the question in the ‘Q&A’box on the right hand side of your screen and the lower left-handcorner of your screen and clickon the “Submit Question” button.Logistics3• Provide information to the public about EPA’sproposed rule.• Provide opportunity to ask clarifying questionsand to express official consultation comments.EPAwill notrespond to:– Questions beyond the scope of the rulemaking; or– Comments expressing opinions or suggestions.• Describe ways to provide written comments bythe end of the public comment period(December 3, 2013).Purpose4• Conducted pre-proposal outreach and consultation– August 2010• Published proposed rule – Summer 2013– Public Comment Period: September 4, 2013 to December 03, 2013– Comment period will be extended to January 02, 2014.• Completed Public Outreach– Public Webinar 1 —September 24, 2013– Public Meeting—October 29, 2013– Public Webinar 2 —November 14, 2013• Publish final rule –(date to be determined)5Rulemaking Schedule• What are water quality standards (WQS)?• Why revise the WQS regulation?• What sections are revised in the proposed rule?6A. DesignatedUsesB. WQSVariancesC. AntidegradationD. TriennialReviewsE. Administrator’sDeterminationF. ComplianceScheduleAuthorizingProvisionOutlineWater quality standards are:• Legally binding provisions of law that describe the desired condition of awaterbody or the level of protection or mandate how it will be expressedor established for such waters in the future.• The foundation of the water quality-based control program mandated bythe 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 (numeric pollutantconcentrations and narrative requirements).• Antidegradation requirements to maintain and protect existing uses andhigh quality waters.• General policies addressing implementation issues.7General BackgroundWho sets WQS?• Under the CWA, states and authorized tribes establishstandards.• States and tribes must hold public hearings to review theirstandards every 3 years and revise them as necessary.• EPA must approve the standards in order for them to be ineffect for CWA purposes.• The CWA requires EPA to impose federal WQS, if EPAdisapproves WQS or determines that new or revised WQSare necessary to meet the requirements of the CWA, unlessthe state or tribe adopts WQS that meet CWA requirements.8General Background9General BackgroundWhat Does the WQS Regulation Do?Adds detail to the CWA provisions for standards:• Defines when and how designated uses may be revised.• Requires criteria to protect uses.• Requires water quality achieved to be maintained, exceptunder certain circumstances.• Requires states/tribes to review their WQS every threeyears and engage the public in any changes to WQS.• Specifies roles of states, tribes, and EPA, andadministrative procedures.Why Revise the WQS Regulation?• The core requirements of the regulation have been in placesince 1983.• The intent of the EPA’s proposed rule is to address targetedareas so that the regulation:– Provides sufficient tools, flexibility and accountability tomanage water resources.– Allows for an open dialogue between the EPA, states, tribes,and the public to facilitate collective and transparent waterquality management.– Provides more transparent, well-defined pathway formaintaining and restoring the biological, chemical, andphysical integrity of the nation’s waters.10Rulemaking BackgroundHow Did EPA Develop the Targeted Areas?• Identified recurring issues.• Analyzed case law.• Reviewed the 1998 advance notice of proposedrulemaking (“ANPRM”).• Consulted and collaborated with:– Tribal Leaders– State WQS managers– Front-line EPA experts in Regional offices• Narrowed focus to areas where regulation changesseemed most essential.11Rulemaking BackgroundTopic AreasA. Designated Uses:Ensure states/tribes continue striving tomeet the national goal of the CWA , even where a useassociated with CWA 101(a)(2) goals are determined to beunattainable at a particular time.B. WQS Variances:Establish a detailed regulatory structure andtransparency for use of WQS variances.C. Antidegradation:Strengthen state and tribal implementationof antidegradation by clarifying EPA’s expectations.D. Triennial Reviews: Strengthen the triennial reviewrequirements.E. Administrator’s Determination:Clarify what constitutes anAdministrator’s determination under 303(c)(4)(B).F. Compliance Schedule Authorizing Provision:Clarify whatmust be done for states/tribes to utilize permit complianceschedules.12Highest Attainable Use• Current Regulation:– A use attainability analysis (UAA) must be conducted per§131.10(j).• Issue:– While the current WQS regulation allows for unattainable CWA101(a)(2) uses to be removed, it does not clearly articulate thatattainable uses must be retained.• Proposed Regulatory Revisions:– Clarify that where a state/tribe adopts new or revised WQS based on arequired UAA, it must adopt the Highest Attainable Use (§131.10(g)).– Define Highest Attainable Use (§131.3(m)).– Specify options available to states and tribes to articulate the HighestAttainable Use (§131.10(g)).13A. Designated UsesClarifying When a UAA Is/Is Not Required• Current Regulation:– A use attainability analysis (UAA) is required in specific circumstancesoutlined in§131.10(j) and is not required as per§131.10(k).• Issue:–§131.10(g),§131.10(j), and§131.10(k) are closely relatedprovisions, but are not well integrated,thus leading to confusion as towhen each provision is relevant and applicable.• Proposed Regulatory Revisions:– Use consistent terminology amongst all three provisions.– Clarify in rule that the factors specified in§131.10(g) are only requiredto be considered when§131.10(j) requires a UAA.– Make 131.10(j) and 131.10(k) transparent opposites to avoid confusionabout when a UAA is or is not required.14A. Designated Uses• Current Regulation– States and tribes may adopt WQS variances and variancepolicies.• Issue– Uncertainty concerning appropriate use of WQS variancesbecause it is not explicitly addressed in regulation.• Proposed Regulatory Revision– Establishes explicit regulatory provisions to guide theadoption of WQS variances and ensure appropriate,consistent, and effective implementation that is transparentto both the regulated community and the public whilemaking environmental progress.15B. WQS VariancesProposed Regulatory Revisions• A new subpart to 40 CFR§131 (131.14)specifically dedicated to WQS variances.• Addresses the following key topic areas:– definition and applicability,– submission requirements,– implementation in NPDES permits,– renewal requirements.• Conforming changes to§ §131.34 and131.40.16B. WQS VariancesDefinition and applicability• A time-limited designated use and criterion.• Specific permittee(s) and/or waterbody or waterbodysegment(s).• Specific pollutant(s).• Reflects the highest attainable condition during thespecified time period.• All other water quality standards are applicable.• Variances are only applicable to NPDES permitting(CWA§402) and state/tribal certifications that federalactions are consistent with WQS (CWA§401).17B. WQS VariancesSubmission requirements• Permittee(s) and/or waterbody or waterbody segment(s).• Pollutant(s).• Interim Requirements reflecting the highest attainablecondition– Interim designated use and criterion or,– interim effluent condition.• Expiration date.• Justification– For CWA 101 (a)(2) uses, at leastone of the six factors listed in 40CFR 131.10(g), or to facilitate restoration activities,– For water body variances, identify and document non-point sourcebest management practices.18B. WQS VariancesImplementation in NPDES Permits• A variance serves as the basis for water quality basedeffluent limits in a NPDES permit.• Effluent limits implementing a variance must be included asconditions in the NPDES permit19Renewal requirements• Have met the requirements of the previous variance.– Describe actions taken.– For a waterbody variance, describe whether and how bestmanagement practices were implemented.– Description of progress made.• Meet the requirements of 131.14.B. WQS VariancesPlease enter clarifying questions in the ‘Q&A’ box on theright side of your screen. Wewill respond to as many astime allows.Reminder:Entries submitted in the ‘Q&A’ box do notsubstitute for providing your written views to theRulemaking docket.•WaterQualityStandardsVariances•DesignatedUses•GeneralWQSandRulemakingBackground20Questions?• Current Regulation:– States and tribes must adopt specific antidegradationpolicies, and must identify implementation methods; bothmust be consistent with 131.12• Proposed Regulatory Revisions:– Clarify and define the options available to states and tribeswhen identifying high quality waters (“Tier 2”).– Clarify that states and tribes must conduct an alternativesanalysis during a “Tier 2” review and choose among suchoptions.– Specify that states and tribes must develop and makeavailable to the public the implementation methods.21C. AntidegradationIdentification of High Quality Waters• Current Regulation:– Does not specify how to identify highquality waters; EPA’s established viewis that states and tribes may use aparameter-by-parameter approach or awaterbody-by-waterbody approach.• Issue:– Some w-b-w approaches have been implemented such that a state or tribemay deny Tier 2 protection solelybased on a 303(d) listing, even though thewater body is still of high quality foranother use specified in CWA 101(a)(2).• Proposed Regulatory Revision:– States and tribes may choose how to identify high quality waters, as long asthey do not exclude waters from Tier2 protected solely because one of theuses specified in CWA section 101(a)(2) is not attained.– Requests comment on whether to specify how a state or tribe determinesfor which parameters Tier 2 review must be conducted, depending on theapproach used to identify high quality waters.22C. AntidegradationAlternatives Analysis• Current Regulation:– Does not specify how states and tribes evaluate whether a loweringof high quality water is necessary to accomplish the activity.• Issue:– States and tribes may decide to authorize a lowering of water qualitywithout evaluating any alternatives and thus without an appropriatefinding consistent with the regulation.• Proposed Regulatory Revision:– A decision to authorize lowering of a Tier 2 water may only be madeafter conducting an alternatives analysis that evaluates a range ofnon-degrading or minimally degrading practicable alternatives. If suchalternatives are identified, the state or tribe must choose one of thosealternatives to implement.23C. AntidegradationImplementationMethods• Current Regulation:– States and tribes must adopt specific antidegradation policies,and must identify implementation methods.• Issue:– Despite the requirement, some states and tribes have notdeveloped or identified antidegradation implementation methods.• Proposed Regulatory Revision:– Sates and tribes must develop and make available to the publicantidegradation implementation methods.– If a state or tribe adopts implementation methods, the EPA wouldreview whether those methods are consistent with§131.12.– Requests comment on whether the EPA should, (A) require theadoption of implementation methods or (B) specify that adoptionis not required.24C. AntidegradationMinimum Elements of an Antidegradation Implementation Method– Scope and applicability– Existing uses protection– High quality water protection, including• Identification of high quality waters• Alternatives analysis and social/economic analysis– Public Participation and intergovernmental coordination– Expectations for point and nonpoint sources– ONRW protection– Thermal Discharges25C. Antidegradation• Current Regulation:– States and authorized tribes must hold a public hearing forthe purpose of reviewing their applicable WQS every threeyears and revise or adopt standards as appropriate.• Issue:– States and tribes may be retaining unprotective criteriaeven after EPA has published new or updated 304(a)criteria.• Proposed Regulatory Revision:– Require that states/tribes evaluate whether water qualitycriteria are still protective of designated uses, taking intoconsideration any new or updated 304(a) criteriarecommendations.26D. Triennial Reviews• 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:– Formal communication between EPA and a state or tribe can beconstrued as an Administrator’s Determination when it is not intendedas such.• Proposed Regulatory Revision:– Clarify that an Administrator’s determination must be signed by theAdministrator (or designee) and include a statement that thedocument is a determination under 303(c)(4)(B).27E. Administrator’s Determination• Current Regulation:– Does not address compliance schedule authorizing provisions.• Issue:– Permitting authorities are including compliance schedules in NPDESpermits, despite the EPA Administrator’s decision inIn the matter ofStar-Kist Caribe, Inc(1990) that compliance schedules may only beissued in permits if the state/tribe has authorized them in their WQSor implementing regulations.• Proposed Regulatory Revision:– Specify that compliance schedule authorizing provisions must beapproved as part of a state or tribe’s water quality standards in orderfor permitting authorities to issue compliance schedules. Suchauthorizations are at the discretion of the state or tribe.28F. Compliance Schedule AuthorizingProvisions29Questions?Please enter clarifying questions in the ‘Q&A’ box on theright side of your screen. Wewill respond to as many astime allows.Reminder:Entries submitted in the ‘Q&A’ box do not substitute forproviding your written views to the Rulemaking docket.A. DesignatedUsesB. WQSVariancesC. Antidegradation•GeneralWQSandRulemakingBackgroundD. TriennialReviewsE. Administrator’sDeterminationF. ComplianceScheduleAuthorizingProvision30Economic Analysis• Provide sufficient tools, flexibility and accountability to managewater resources.• Allow for an open dialogue between the EPA, states, tribes, andthe public to facilitate collective and transparent water qualitymanagement.• Provide more transparent, well-defined pathway for maintainingand restoring the biological, chemical, and physical integrity ofthe nation’s waters.• Water quality improvements generate benefits, such as:– Market value: water supply and use (drinking water, agricultural,industrial); commercial fishing; property– Nonmarket use value: human health risk reductions (fromconsumption of fish, exposure to water during recreation);recreational (boating, fishing, swimming, wildlife viewing, hunting)31Overall Benefits32Questions?Please enter clarifying questions in the ‘Q&A’ box on theright side of your screen. Wewill respond to as many astime allows.Reminder:Entries submitted in the ‘Q&A’ box do not substitute forproviding your written views to the Rulemaking docket.A. DesignatedUsesB. WQSVariancesC. Antidegradation•GeneralWQSandRulemakingBackgroundD. TriennialReviewsE. Administrator’sDeterminationF. ComplianceScheduleAuthorizingProvision•EconomicAnalysisEPA will now listen to official consultation comments fromTribal leaders or their consultation designees.1. Join the teleconference by calling:– Call-in Number:866-299-3188– Code:202 566 1149 #– REMINDER: Turn off your computer speakers to avoid feedback.2. Type your name, title and affiliation in the ‘Q&A’ box:– EPA will call on you when it isyour turn to speak.– REMINDER: Un-mute your phone.Reminder:EPA encourages you to submitwrittenconsultationcomments to the docket or toWQSRegulatoryClarifications@epa.gov.Consultation Comments33• For more information about this rulemaking:–http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm• Written comments may be submitted until December03, 2013 by one of the following methods:–http://www.regulations.gov;Docket ID No. EPA-HQ-OW-2010-0606– Email:ow-docket@epa.gov– Mail– Hand Delivery• For further information, questions, or to submit writtenconsultation comments:–WQSRegulatoryClarifications@epa.gov– 202-566-186034For More Information