Tribes-only Consultation 

and Coordination Webinar:

Water Quality Standards 

Regulatory Rulemaking

Prepared by EPA Office of Water

Office of Science and Technology

October 16, 2014
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EPA Representatives

 Co-Presenters

Janita Aguirre

Christina Christensen

Heather Goss
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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.
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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 Rule – 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 Rule – Summer 2015 (estimated)

Rulemaking Schedule

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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 Information
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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.
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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.
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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.
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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.
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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 Provision
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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.

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 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

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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.

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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.

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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. 

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Direction for Final Rule: Designated Uses

When a UAA is/is Not Required

 Issue to Resolve: If a UAA is not required for non101(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 non101(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. 

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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. 

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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. 

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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. 

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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.

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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.

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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. 

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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). 

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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.

• 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. 

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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. 

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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.

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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.

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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.

• Authorizing Permit Compliance Schedules

• WQS Variances

• Antidegradation

• Triennial Review

• Designated Uses

• Administrator’s Determination

• General WQS and Rulemaking Background
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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

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