Tribes-only Consultation 

and Coordination Webina

Water Quality Standards Regula

Clarifications Proposed Rule

Prepared by EPA Office of Water

Office of Science and Technology

November 19, 2013
EPA Representatives

• Co-Presenters

– Janita Aguirre– Christina Christensen– Heather Goss

• Moderators

– Grace Robiou– Shari Barash– Manjali Vlcan
• Access the audio portion of today’s webinar by:

– Option 1: Using your computer speakers and/or headph– 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 o

screen.

• To Ask a Clarifying Question: Type the question in th

box on the right hand side of your screen and the lower left-hcorner of your screen and click on the “Submit Question” but

Logistics
• Provide information to the public about E

proposed rule.

• Provide opportunity to ask clarifying ques

and to express official consultation commEPA will not respond to:

– Questions beyond the scope of the rulemakin– Comments expressing opinions or suggestion

• Describe ways to provide written commen

the end of the public comment period (December 3, 2013).

Purpose
• Conducted pre-proposal outreach and co

– August 2010

• Published proposed rule – Summer 2013

– Public Comment Period: September 4, 2013 to Decem– 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)

Rulemaking Schedule
• What are water quality standards (WQS)?

• Why revise the WQS regulation?• What sections are revised in the propose

A. Designated UsesB. WQS VariancesC. Antidegradation

D. Triennial ReviewsE. Administrator’s

Determination

F. Compliance Sched

Authorizing Provis

Outline
Water quality standards are:

• Legally binding provisions of law that describe the desired co

waterbody or the level of protection or mandate how it will be or established for such waters in the future.

• The foundation of the water quality-based control program ma

the Clean Water Act (CWA). 

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

aquatic life, agriculture).

• Water quality criteria to protect designated uses (numeric pol

concentrations and narrative requirements).

• Antidegradation requirements to maintain and protect existing 

high quality waters.

• General policies addressing implementation issues.

General Background
Who sets WQS?

• Under the CWA, states and authorized tribes establi

standards.

• States and tribes must hold public hearings to review 

standards every 3 years and revise them as necessa

• EPA must approve the standards in order for them to 

effect for CWA purposes.

• The CWA requires EPA to impose federal WQS, if E

disapproves WQS or determines that new or revised are necessary to meet the requirements of the CWAthe state or tribe adopts WQS that meet CWA requir

General Background
General Background

What Does the WQS Regulation Do?Adds detail to the CWA provisions for standard• Defines when and how designated uses may be re• Requires criteria to protect uses.• Requires water quality achieved to be maintained, 

under certain circumstances. 

• Requires states/tribes to review their WQS every t

years and engage the public in any changes to WQ

• Specifies roles of states, tribes, and EPA, and 

administrative procedures.
Why Revise the WQS Regulation?

• The core requirements of the regulation have been i

since 1983. 

• The intent of the EPA’s proposed rule is to address t

areas so that the regulation:

– Provides sufficient tools, flexibility and accountability to 

manage water resources.

– Allows for an open dialogue between the EPA, states, 

and the public to facilitate collective and transparent wquality management.

– Provides more transparent, well-defined pathway for 

maintaining and restoring the biological, chemical, and physical integrity of the nation’s waters.

Rulemaking Background
How Did EPA Develop the Targeted Area

• Identified recurring issues.• Analyzed case law.• Reviewed the 1998 advance notice of propose

rulemaking (“ANPRM”).

• Consulted and collaborated with: 

– Tribal Leaders– State WQS managers– Front-line EPA experts in Regional offices

• Narrowed focus to areas where regulation cha

seemed most essential.

Rulemaking Background
Topic Areas

A. Designated Uses: Ensure states/tribes continue s

meet the national goal of the CWA , even where a uassociated with CWA 101(a)(2) goals are determineunattainable at a particular time.

B. WQS Variances: Establish a detailed regulatory st

transparency for use of WQS variances.

C. Antidegradation: Strengthen state and tribal imple

of antidegradation by clarifying EPA’s expectations. 

D. Triennial Reviews: Strengthen the triennial review 

requirements.

E. Administrator’s Determination: Clarify what cons

Administrator’s determination under 303(c)(4)(B).

F. Compliance Schedule Authorizing Provision: Cl

must be done for states/tribes to utilize permit compschedules.
Highest Attainable Use

• Current Regulation:

– A use attainability analysis (UAA) must be conducted per §

• Issue:

– While the current WQS regulation allows for unattainable CW

101(a)(2) uses to be removed, it does not clearly articulate tattainable uses must be retained.

• Proposed Regulatory Revisions: 

– Clarify that where a state/tribe adopts new or revised WQS b

required UAA, it must adopt the Highest Attainable Use (§ 

– Define Highest Attainable Use (§ 131.3(m)).

– Specify options available to states and tribes to articulate the 

Attainable Use (§ 131.10(g)).

A. Designated Uses
Clarifying When a UAA Is/Is Not Required

• Current Regulation:

– A use attainability analysis (UAA) is required in specific circu

outlined 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 relate

provisions, but are not well integrated, thus leading to confuwhen 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 on

to be considered when 

§131.10(j) requires a UAA.

– Make 131.10(j) and 131.10(k) transparent opposites to avoid 

about when a UAA is or is not required.

A. Designated Uses
• Current Regulation

– States and tribes may adopt WQS variances and 

policies.

• Issue

– Uncertainty concerning appropriate use of WQS v

because it is not explicitly addressed in regulation

• Proposed Regulatory Revision

– Establishes explicit regulatory provisions to guide 

adoption of WQS variances and ensure appropriconsistent, and effective implementation that is trto both the regulated community and the public wmaking environmental progress.

B. WQS Variances
Proposed 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 and 

131.40.

B. WQS Variances
Definition and applicability

• A time-limited designated use and criterion.• Specific permittee(s) and/or waterbody or waterb

segment(s).

• Specific pollutant(s).• Reflects the highest attainable condition during t

specified time period.

• All other water quality standards are applicable.• Variances are only applicable to NPDES permitt

(CWA 

§402) and state/tribal certifications that f

actions are consistent with WQS (CWA 

§401).

B. WQS Variances
Submission requirements

• Permittee(s) and/or waterbody or waterbody seg• Pollutant(s).• Interim Requirements reflecting the highest atta

condition

– Interim designated use and criterion or,– interim effluent condition.

• Expiration date.• Justification

– For CWA 101 (a)(2) uses, at least one of the six factor

CFR 131.10(g), or to facilitate restoration activities,

– For water body variances, identify and document non-

best management practices.

B. WQS Variances
Implementation in NPDES Permits

• A variance serves as the basis for water quality 

effluent limits in a NPDES permit.

• Effluent limits implementing a variance must be 

conditions in the NPDES permit

Renewal requirements• Have met the requirements of the previous varia

– Describe actions taken.– For a waterbody variance, describe whether and how 

management practices were implemented.

– Description of progress made.

• Meet the requirements of 131.14.

B. WQS Variances
Please enter clarifying questions in the ‘Q&A’ box o

right side of your screen. We will respond to as matime allows.Reminder: Entries submitted in the ‘Q&A’ box do n

substitute for providing your written views to the Rulemaking docket.

• Water Quality Standards Variances• Designated Uses• General WQS and Rulemaking Background

Questions?
• Current Regulation:

– States and tribes must adopt specific antidegrada

policies, and must identify implementation methomust be consistent with 131.12 

• Proposed Regulatory Revisions:

– Clarify and define the options available to states 

when identifying high quality waters (“Tier 2”). 

– Clarify that states and tribes must conduct an alte

analysis during a “Tier 2” review and choose amooptions. 

– Specify that states and tribes must develop and m

available to the public the implementation method

C. Antidegradation
Identification of High Quality Waters

• Current Regulation:

– Does not specify how to identify high quality waters; EPA’s esta

is that states and tribes may use a parameter-by-parameter appwaterbody-by-waterbody approach. 

• Issue: 

– Some w-b-w approaches have been implemented such that a s

may deny Tier 2 protection solely based on a 303(d) listing, evewater body is still of high quality for another use specified in CW

• Proposed Regulatory Revision:

– States and tribes may choose how to identify high quality water

they do not exclude waters from Tier 2 protected solely becaususes specified in CWA section 101(a)(2) is not attained.

– Requests comment on whether to specify how a state or tribe d

for which parameters Tier 2 review must be conducted, dependapproach used to identify high quality waters.

C. Antidegradation
Alternatives Analysis

• Current Regulation:

– Does not specify how states and tribes evaluate whether a 

of high quality water is necessary to accomplish the activity. 

• Issue: 

– States and tribes may decide to authorize a lowering of wate

without evaluating any alternatives and thus without an apprfinding consistent with the regulation.

• Proposed Regulatory Revision:

– A decision to authorize lowering of a Tier 2 water may only b

after conducting an alternatives analysis that evaluates a rannon-degrading or minimally degrading practicable alternativealternatives are identified, the state or tribe must choose one alternatives to implement.

C. Antidegradation
Implementation Methods

• Current Regulation:

– States and tribes must adopt specific antidegradation po

and must identify implementation methods. 

• Issue: 

– Despite the requirement, some states and tribes have no

developed or identified antidegradation implementation m

• Proposed Regulatory Revision:

– Sates and tribes must develop and make available to the 

antidegradation implementation methods.

– If a state or tribe adopts implementation methods, the EP

review whether those methods are consistent with § 131

– Requests comment on whether the EPA should, (A) requ

adoption of implementation methods or (B) specify that ais not required.

C. Antidegradation
Minimum Elements of an Antidegradation Implementatio

– 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 coordinatio– Expectations for point and nonpoint sources– ONRW protection– Thermal Discharges 

C. Antidegradation
• Current Regulation:

– States and authorized tribes must hold a public hea

the purpose of reviewing their applicable WQS everyears and revise or adopt standards as appropriate

• Issue:

– States and tribes may be retaining unprotective crite

even after EPA has published new or updated 304(criteria.

• Proposed Regulatory Revision:

– Require that states/tribes evaluate whether water q

criteria are still protective of designated uses, taking consideration any new or updated 304(a) criteria recommendations.

D. Triennial Reviews
• Current Regulation: 

– EPA Administrator may determine that a revised or new stan

necessary to meet the requirements of the CWA.

– This determination then obliges EPA to promptly propose an

federal standards, unless the state or tribe revises its standabeforehand.

• Issue: 

– Formal communication between EPA and a state or tribe ca

construed as an Administrator’s Determination when it is not as such.

• Proposed Regulatory Revision:

– Clarify that an Administrator’s determination must be signed 

Administrator (or designee) and include a statement that the document is a determination under 303(c)(4)(B).

E. Administrator’s Determination
• Current Regulation:

– Does not address compliance schedule authorizing provisio

• Issue:

– Permitting authorities are including compliance schedules in 

permits, despite the EPA Administrator’s decision in In the mStar-Kist Caribe, Inc (1990) that compliance schedules may issued in permits if the state/tribe has authorized them in theor implementing regulations.

• Proposed Regulatory Revision:

– Specify that compliance schedule authorizing provisions mu

approved as part of a state or tribe’s water quality standards for permitting authorities to issue compliance schedules. Suauthorizations are at the discretion of the state or tribe. 

F. Compliance Schedule Authorizing 

Provisions
Questions?

Please enter clarifying questions in the ‘Q&A’ box oright side of your screen. We will respond to as matime allows.Reminder: Entries submitted in the ‘Q&A’ box do not substitu

providing your written views to the Rulemaking docket.

A. Designated UsesB. WQS VariancesC. Antidegradation

• General WQS and

Rulemaking Background

D. Triennial Review

E. Administrator’s

Determination

F. Compliance Sch

Authorizing Pro
Economic Analysis
• Provide sufficient tools, flexibility and accountability t

water resources.

• Allow for an open dialogue between the EPA, states

the public to facilitate collective and transparent watemanagement.

• Provide more transparent, well-defined pathway for 

and restoring the biological, chemical, and physical ithe nation’s waters.

• Water quality improvements generate benefits, such 

– Market value: water supply and use (drinking water, a

industrial); commercial fishing; property

– Nonmarket use value: human health risk reductions (f

consumption of fish, exposure to water during recreatirecreational (boating, fishing, swimming, wildlife viewin

Overall Benefits
Questions?

Please enter clarifying questions in the ‘Q&A’ box oright side of your screen. We will respond to as matime allows.Reminder: Entries submitted in the ‘Q&A’ box do not substitu

providing your written views to the Rulemaking docket.

A. Designated UsesB. WQS VariancesC. Antidegradation

• General WQS and

Rulemaking Background

D. Triennial Review

E. Administrator’s

Determination

F. Compliance Sch

Authorizing Pro

• Economic Analy
EPA will now listen to official consultation commen

Tribal 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 avo

2. Type your name, title and affiliation in the ‘Q&

– EPA will call on you when it is your turn to speak. – REMINDER: Un-mute your phone.

Reminder: EPA encourages you to submit written consulta

comments to the docket or to WQSRegulatoryClarifications@

Consultation Comments
• For more information about this rulemaking: – http://water.epa.gov/lawsregs/lawsguidance/wqs_inde

• Written comments may be submitted until Decem

03, 2013 by one of the following methods:

– http://www.regulations.gov; Docket ID No. EPA-HQ-OW-201

– Email: ow-docket@epa.gov– Mail– Hand Delivery

• For further information, questions, or to submit w

consultation comments:

– WQSRegulatoryClarifications@epa.gov– 202-566-1860 

For More Information