# Tribes
-only Consultation 

# and Coordination Webinar: Water Quality Standards 

# Regulatory Rulemaking
Prepared by EPA Office of Water Office of Science and Technology October 16, 20142 

# EPA Representatives  

## Co- Presenters  

### Janita Aguirre  

### Christina Christensen  

### Heather Goss3 

# Logistics  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 your screen.  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- hand corner of your screen and click on the “Submit Question” button.4 

# Purpose  

### Provide information about EPA’s rulemaking.  

### Provide opportunity to ask clarifying 

### questions and to express official consultation comments. EPA will not respond to:  Questions beyond the scope of the rulemaking; or  Comments expressing opinions or suggestions.  

### Describe ways to provide written comments by the end of the consultation period (October 31, 2014). Conducted Pre- proposal Outreach and Tribal Consultation
– August 2010  Published Proposed R ule
– September 2013  Conducted Public Outreach and Tribal Consultation  Public Webinar 1
— September 24, 2013  Public Meeting
— October 29, 2013  Public Webinar 2
— November 14, 2013  Tribal Consultation
— November 19, 2013  Publish Final R ule
– Summer 2015 (estimated) 

# Rulemaking Schedule

56 

# Outline  

### What are water quality standards (WQS)?  

### Why revise the WQS regulation?  

### What key topic areas were included in the proposed rule?  Description of Proposed Rule  Goal of Proposed Rule  Issues Raised by Commenters for Resolution  Potential Direction for Final Rule  

### Receive Official Consultation Comments  

### For More Information and Contact Information7 

# General Background Water quality standards are:  Legally binding provisions of law that describe the desired condition of a waterbody or the level of protection or mandate how it will be expressed or established for such waters in the future.  The foundation of the water quality- based control program mandated 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 (numeric pollutant concentrations and narrative requirements).  Antidegradation requirements to maintain and protect existing uses and high quality waters.  General policies addressing implementation issues.8 

# General Background Who sets WQS ?  Under the CWA, states and authorized tribes establish standards.  States and tribes must hold public hearings to review their standards every 3 years and revise them as necessary.  EPA must approve the standards in order for them to be in effect for CWA purposes.  The CWA requires EPA to impose federal WQS, if EPA disapproves WQS or determines that new or revised WQS are necessary to meet the requirements of the CWA, unless the state or tribe adopts WQS that meet CWA requirements.9 

# General Background What Does the WQS Regulation Do? Adds detail to the CWA provisions for WQS:  Defines when and how designated uses may be revised.  Requires criteria to protect uses.  Requires water quality achieved to be maintained, except under certain circumstances.  Requires states/tribes to review their WQS every three years and engage the public in any changes to WQS.  Specifies roles of states, tribes, and EPA, and administrative procedures.10 

# Rulemaking Background Why Revise the WQS Regulation?  The core requirements of the regulation have been in place since 1983.  The intent of the EPA’s proposed rule is to address targeted areas so that the regulation:  Provides sufficient tools, flexibility and accountability to manage water resources.  Allows for an open dialogue between the EPA, states, tribes, and the public to facilitate collective and transparent water quality management.  Provides more transparent, well -defined pathway for maintaining and restoring the biological, chemical, and physical integrity of the nation’s waters.11 

# Rulemaking Background  Proposed Rule published on Sept. 4, 2013 included changes in six key areas.

 120-day comment period closed on Jan. 2, 2014.  Comments received: ~ 2,720 total, ~ 160 unique comment letters, and ~ 2,560 mass mailing. A. Administrator’s Determination B. Designated Uses C. Triennial Reviews D. Antidegradation E. WQS Variances F. Compliance Schedule Authorizing Provision12 

# Proposed Rule Topic Areas 1 . Administrator’s Determination: Clarify what constitutes an Administrator’s determination under 303(c)(4)(B). 2. Designated Uses: Ensure states/tribes continue striving to meet the national goal of the CWA, even where a use associated with CWA 101(a)(2) goals is determined to be unattainable at a particular time. 3. Triennial Reviews: Strengthen the triennial review requirements. 4. Antidegradation : Strengthen state and tribal implementation of antidegradation by clarifying EPA’s expectations. 5. WQS Variances: Establish a detailed regulatory structure and transparency for use of WQS variances. 6. Compliance Schedule Authorizing Provision: Clarify what must be done for states/tribes to utilize permit compliance schedules.

### Proposed Rule: Administrator’s Determination Proposed Rule :  Requires that a determination be signed by the Administrator and specify it is a determination under CWA 303(c)(4)(B). 

### Goal: Allow EPA to identify and communicate mission critical areas of state/tribal WQS that should be updated to meet the requirements of the CWA.

13 

### Issue to Resolve: Proposal did not clearly articulate which CWA authority is used to make an Administrator’s determination that new or revised standards are necessary to meet the requirements of the CWA.  

### Direction for Final Rule: Finalize with language that tracks more closely with the CWA to alleviate confusion expressed in the comments received. 

### Direction for Final Rule: Administrator’s Determination

14

### Proposed Rule: Designated Uses Highest Attainable Use Proposed Rule:  Provides that where a CWA 101(a)(2) use is not attainable, the highest attainable use and criteria to protect that use shall be adopted. 

### Goal: Build and maintain resilient and robust ecosystems by ensuring that states/tribes retain and designate the highest attainable physical, chemical and biological uses, even when removing unattainable uses
.

15

### Direction for Final Rule: Designated Uses Highest Attainable Use  

### Issue to Resolve: “Highest” and “closest” are very subjective terms that could lead to increased litigation and administrative burden when trying to identify a highest attainable use.  

### Direction for Final Rule: Finalize the proposed concept and include a regulatory definition of highest attainable use in rule using less subjective terminology to resolve issues raised in comments.

16

## Proposed Rule: Designated Uses When a UAA is/is Not Required Proposed Rule:  Clarifies when a UAA is required, particularly that a UAA is only required when removing or modifying a CWA 101(a)(2) use or subcategory of such a use. 

### Goal: Clarify the regulatory requirements so that it is clear when a state/tribe is required to do a UAA. Hence, reducing unnecessary litigation in state/tribes and EPA.

17

### Direction for Final Rule: Designated Uses When a UAA is/is Not Required  

### Issue to Resolve: If a UAA is not required for non 101(a)(2) uses, the proposal leads to confusion about what is required when removing and revising such uses.  

### Direction for Final Rule: Finalize proposed concept, define non - 101(a)(2) use, and specify in rule what demonstration is required when removing a non 101(a)(2) use.

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# Questions  Please enter clarifying questions in the ‘Q&A ’ box on the right side of your screen
. We will respond to as many as time allows.



### • Designated Uses
• Administrator’s Determination

• General WQS and Rulemaking Background

### Proposed Rule: Triennial Review 

### Proposed Rule:  Clarifies states/tribes shall re - examine their criteria in light of new or updated CWA 304(a) criteria recommendations during triennial reviews. 

### Goal: Ensure state/tribes review existing criteria (not just designated uses) during triennial reviews and encourage states/tribes to consider the latest science as reflected in new or updated 304(a) criteria recommendations.

20

### Direction for Final Rule: Triennial Review  

### Issue to Resolve: Some commenters perceived that the proposal added a new requirement, rather than clarifying existing requirements. While others thought it didn’t do enough to ensure states/tribes are considering the latest science.  

### Direction for Final Rule: Clarify the scope of applicable WQS to be reviewed and highlight the role of 304(a) criteria recommendations in triennial reviews by requiring that when states/tribes submit the ‘results’ of their triennial review, they must include an explanation if they did not adopt new/revised criteria in light of new/updated 304(a) criteria recommendations. 21

### Proposed Rule: Antidegradation Identifying High Quality Waters Proposed Rule:  Specifies that states/tribes using a water body- bywater body approach cannot exclude high quality waters from Tier 2 solely because not all of the 101(a)(2) uses are attained. 

### Goal: Clarify that the water body approach is an option as long as states/tribes ensure that all waters deserving of a “high quality” description are protected, rather than denying protection due to a single impairment.

22

### Direction for Final Rule: Antidegradation Identifying High Quality Waters  

### Issue to Resolve: Proposed language did not clearly articulate EPA’s desire for the sideboard for water body- by-water body approaches.  

### Direction for Final Rule: Finalize proposed concept with better wording and require public involvement in state/tribal decisions on the level of antidegradation protection to be afforded to specific water bodies under the waterbody approach.

23

### Proposed Rule: Antidegradation Conducting Alternatives Analyses Proposed Rule:  Specifies that states/tribes must conduct an analysis of minimally and non -degrading practicable alternatives and implement one of those alternatives when authorizing degradation of high water quality. 

### Goal: To provide a thoughtful and transparent mechanism for states/tribes, dischargers and the public to consider a full spectrum of viable, practicable alternative options before allowing a lowering of high quality water. 24

### Direction for Final Rule: Antidegradation Conducting Alternatives Analyses  

### Issue to Resolve: Clarify that states/tribes are not required to conduct alternatives analyses themselves and clarify what EPA intends on the range of alternatives.  

### Direction for Final Rule: Finalize proposed concept with clarification that states/tribes must base their decision to allow lowering of high quality water on an analysis of alternatives (another entity can perform the analysis) and clarification to the range of alternatives to be included in the analysis.
25

### Proposed Rule: Antidegradation Implementation Methods Proposed Rule:  Specifies that states/tribes are required to make antidegradation implementation methods publically available. Proposed rule requested comments on whether to require methods be binding or specify in rule that methods are not required to be binding. Goal : Ensure a predictable, publically transparent state/tribal decision - making process related to maintaining and protecting water quality, especially high quality waters.
26

### Direction for Final Rule: Antidegradation Antidegradation Implementation Methods  

### Issue to Resolve: How to increase public accountability of antidegradation implementation without requiring all states/tribes to adopt antidegradation implementation methods.  

### Direction for Final Rule: Require final methods to be publically available and require states/tribes to engage the public during development or revision of methods. Also, require the antidegradation policy or methods to contain binding provisions for the two new boundaries for identifying high quality waters and conducting the alternatives analysis (all other parts of methods could be in guidance). 2728 

# Questions  Please enter clarifying questions in the ‘Q&A ’ box on the right side of your screen. We will respond to as many as time allows.



### • Antidegradation
• Triennial Review
• Designated Uses
• Administrator’s Determination

• General WQS and Rulemaking Background

### Proposed Rule: WQS Variances Proposed Rule:  Establishes new regulatory provisions guiding the establishment of variances, including submission expectations and interim requirements, expiration date and renewal requirements. 

### Goal: Provide a transparent and accountable tool for states/tribes to make incremental progress toward attaining designated uses, rather than pursuing a permanent downgrade through a designated use change.
29

### Direction for Final Rule: WQS Variances  

### Issue to Resolve: To ensure variances are used to make progress, target changes to the proposal to decrease confusion over triennial reviews and renewals and to maximize accountability while minimizing rulemaking burden.  

### Direction for Final Rule: Finalize the proposed concept to increase accountability, reduce unnecessary rulemaking burden by trading the maximum duration for shorter re- evaluation requirements, and promote effective implementation by streamlining the WQS and permitting process during the variance period. 30

## Proposed Rule: Authorizing Compliance Schedules Proposed Rule:  Clarifies that a permitting authority may only issue permit compliance schedules if the state/tribe has authorized the use of such permit compliance schedules in their WQS or implementing regulations and requires such authorizing provision to be approved as a WQS. 

### Goal: To provide the regulatory framework to ensure compliance schedules are legal under the CWA, and reduce unnecessary legal challenges to permits, where states/tribes and the public are willing to allow compliance schedules for dischargers. 31

## Direction for Final Rule: Authorizing Compliance Schedules  

### Issue to Resolve: There is confusion about how the proposed rule language regarding an authorizing provision interacts with permit compliance schedules.  

### Direction for Final Rule: Finalize the proposed concept with language that more clearly makes the distinction between the authorizing provision and permit compliance schedules themselves.

3233 

# Questions  Please enter clarifying questions in the ‘Q&A ’ box on the right side of your screen. We will respond to as many as time allows.



### • Authorizing Permit Compliance Schedules
• WQS Variances
• Antidegradation
• Triennial Review
• Designated Uses


### • Administrator’s Determination

• General WQS and Rulemaking Background34 

# Consultation Comments  EPA will now listen to official consultation comments from 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 avoid feedback. 2. Type your name, title and affiliation in the ‘ Q&A’ box:  EPA will call on you when it is your turn to speak.  REMINDER: Un - mute your phone. Reminder: To ensure timely receipt, EPA encourages you to also send an electronic copy of written consultation comments to: aguirre.janita@epa.gov
.

# For More Information:  For more information about this rulemaking: http:// water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm  Supplemental material and Public Comments can be found at: http:// www.regulations.gov Docket ID No. EPA- HQ-OW-2010-0606  Written comments may be submitted until October 31, 2014 by one of the following methods:  Email : aguirre.janita@epa.gov  Mail: Janita Aguirre 1200 Pennsylvania Ave NW Mailcode : 4305T Washington, DC 20460 35