Public Meeting:Water Quality Standards RegulatoryClarifications Proposed RuleOctober 29, 2013Introduction to EPA Panel• Topic Leads/Co-Presenters– Janita Aguirre– Christina Christensen– Heather Goss– Gary Russo• Moderators– Shari Barash– Manjali Vlcan• Closing Remarks– Grace Robiou2Packet Overview• Agenda• Trifold Summary• Fact Sheet• How to Submit Public Comments• Index Cards3Agenda• Meeting Purpose• Structure of Today’s Event• Timing4How to Ask Questions Today• Write clarifying questions on indexcards– One question per index card– Include name and affiliation• Submit questions to staff in the aisles• See staff for additional index cards• Submit formal comments to the Docket5How to Submit Formal Comments• Formal comments must be submitted to theDocket• Submit comments to the docket:– Online at www.regulations.gov– Via email to the docket, ow-docket@epa.gov– Via regular mail– By hand delivery• Docket ID: EPA-HQ-OW-2010-0606• Deadline: December 3, 20136Other Logistical Information• Restrooms• Lunch Options• Other Assistance• Where to Find Documents– PPT Slides– Comparison of Existing Regulation vs. ProposedRule Text• Send additional questions to:WQSRegulatoryClarifications@epa.gov7Presentation:Water Quality Standards RegulatoryClarifications Proposed RulePrepared by EPA Office of WaterOffice of Science and TechnologyOctober 29, 2013• What are water quality standards (WQS)?• Why revise the WQS regulation?• What sections are revised in the proposed rule?9A. 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).• An antidegradation requirements to maintain and protect existing usesand high quality waters.• General policies addressing implementation issues.10General 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.11General Background12General 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.13Rulemaking BackgroundHow Did EPA Develop the Targeted Areas?• Identified recurring issues.• Analyzed case law.• Reviewed the 1998 advance notice of proposedrulemaking (“ANPRM”).• Consulted with:– State WQS managers– Tribal Leaders– Front-line EPA experts in Regional offices• Narrowed focus to areas where regulation changesseemed most essential.14Rulemaking BackgroundDesignated UsesChristina ChristensenHighest 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)).16A. 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.17A. Designated UsesWQS VariancesGary Russo• 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.19B. 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 and131.40.20B. 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).21B. 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 in40 CFR 131.10(g), or to facilitate restoration activities.– For water body variances, identify and document non-pointsource best management practices.22B. 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 permit23Renewal 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 VariancesAntidegradationHeather Goss• 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.25C. 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.26C. AntidegradationAlternatives Analysis• Current Regulation:– Does not specify how states and tribes evaluate whether alowering of high quality water is necessary to accomplish theactivity.• Issue:– States and tribes may decide to authorize a lowering of waterquality without evaluating any alternatives and thus without anappropriate finding consistent with the regulation.• Proposed Regulatory Revision:– A decision to authorize lowering of a Tier 2 water may only bemade after conducting an alternatives analysis that evaluates arange of non-degrading or minimally degrading practicablealternatives. If such alternatives are identified, the state or tribemust choose one of those alternatives to implement.27C. AntidegradationImplementation Methods• 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.28C. 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 Discharges29C. AntidegradationTriennial Reviews andAdministrator’s DeterminationJanita Aguirre• 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 CWA 304(a)criteria recommendations.• Proposed Regulatory Revision:– Require that states/tribes evaluate whether water qualitycriteria are still protective of designated uses, taking intoconsideration any new or updated CWA 304(a) criteriarecommendations.31D. 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).32E. Administrator’s DeterminationCompliance ScheduleAuthorizing ProvisionsHeather Goss• Current Regulation:– Does not address compliance schedule authorizing provisions.• Issue:– Permitting authorities are including compliance schedules inNPDES permits, despite the EPA Administrator’s decision inInthe matter of Star-Kist Caribe, Inc(1990) that complianceschedules may only be issued in permits if the state/tribe hasauthorized them in their WQS or implementing regulations.• Proposed Regulatory Revision:– Specify that compliance scheduleauthorizing provisions must beapproved as part of a state or tribe’s water quality standards inorder for permitting authorities to issue compliance schedules.Such authorizations are at the discretion of the state or tribe.34F. Compliance Schedule AuthorizingProvisionsEconomic AnalysisGary Russo36Economic AnalysisProgrammatic• Provide sufficient tools, flexibility and accountability to manage waterresources.• Allow for an open dialogue between the EPA,states, tribes, and the public tofacilitate collective and transparent water quality management.Environmental• Provide more transparent, well-defined pathway to maintain and restore thebiological, chemical, and physical integrity of the nation’s waters.• More resilient ecosystems better able to withstand climate change stressors.Economic• Market value: Water supply and use (drinking water, agricultural, industrial),commercial fishing, recreation industry, property.• Nonmarket value: Reduced health risks (fish consumption, swimming),recreational activities (boating, fishing, swimming, wildlife viewing, hunting,hiking, others), and aesthetic.37Overall BenefitsLunch BreakResponse to AudienceQuestionsListening SessionClosing RemarksGrace Robiou• For more information and updates about thisrulemaking and upcoming outreach:–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, but not to submit writtencomments:–WQSRegulatoryClarifications@epa.gov– 202-566-186042For More Information