1 United States

Environmental Protection Agency Office of Water

430 5 T November 2010



# Fact Sheet

– Second Teleconference
Session with Indian Tribes

Water Quality Standards Regulatory Changes

Summary

EPA is planning t o propose targeted changes to the water quality standards regulation to improve its effectiveness in helping restore and maintain the chemical, physical, and biological integrity of the n ation‟s waters. The regulation, which has been in place since 1983, g overns how states and authorized tribes adopt standards needed under the Clean Water Act to protect the quality of their rivers, streams, lakes, wetlands, and estuaries. EPA expects to publish a proposed rule in the Federal Register in summer 2011. In Augu st 2010,

EPA began the consultation process with Indian tribes , and held “listening sessions” for state and local governments and the public.

Background

Water quality standards serve as the foundation for the water quality

- based approach to pollution con trol under the Clean Water Act (CWA) , and are a component of watershed

management.

EPA developed the f

ederal water quality standards r egulation to implement the requirements

of the CWA. The f

ederal Water Quality Standards regulations are found at 40 CFR Part 131.

T he regulation: 1) defines when and how designated uses may be revised; 2) requires water quality criteria based on sound science to protect those uses; 3) requires states and authorized

tribes to prevent degradation of water quality, except unde r certain circumstances; 4) requires

states and tribes to review their water quality standards at least every three years and to engage the public in any revisions to water quality standards; and 5) specifies roles and administrative procedures for states

, tribes, and EPA

.

Potential Scope of the Changes

The core requirements of the current regulation have been in place since 1983. These requirements have provided a solid foundation for water quality

- based controls that have been put in place since then

. T he intent of the changes EPA is considering is to improve the regulation‟s effectiveness in targeted areas. Specifically, EPA is considering providing clarity

in 1) antidegradation implementation methods, 2) Administrator‟s determination, 3) designated us es, 4) variances to water quality standards; 5) triennial review scope and requirements, and 6) updating the regulation to reflect certain court decisions. See EPA‟s briefing presentation and Federal Register notice at http://water.epa.gov/lawsregs/lawsguidance/wqs_listening.cfm

.2

Prior Teleconference Session with Tribes

Since this rulemaking may affect the content of tribal water quality standards under the Clean
Water Act, EPA believes it is important to begin the consultation process with tribes at an early stage. EPA wants the full benefit of tribal views on the changes being contemplated.

On August 19, 2010, EPA held a national teleconference exclusively for interested trib es. EPA presented the broad outlines of changes being considered. Approximately 80 tribes participated in the teleconference, and provided valuable comments and insights. A list of participants is provided at http://water.epa.gov/lawsregs/lawsguidance/wqs_listening.cfm

.

Invitation and Instructions for Second Teleconference Session with Tribes

All interested tribes are invited to participate in a second Teleconference session wi th EPA to discuss more details of EPA‟s proposal before it is issued. You may be interested if (a) your tribe is one of the 45 tribes eligible to be treated in a manner similar to a state (TAS) for water quality standards, (b) if your tribe has applied for TAS, (c) if your tribe is developing standards, or (d) you have encountered issues relating to standards of other jurisdictions.

Tribes

- Only Session #2: "Water Quality Standards Regulatory Changes"

December 14 , 2010

4:00

– 5:30 pm EDT Teleconference phon e number: (888) 689

- 4723

Conference ID: 27877415

Pre

- Registration : You need not pre

- register to participate in this session. However, if you

pre

- register, it will help EPA allocate enough telephone lines. To pre

- register, simply send

an email to SHPDcomments@epa.gov entitled “Tribal session” and provide your name and

tribe.

Call

- in Time : Please call the teleconference number listed above about 10 minutes early to provide enough time before the call begins for th e operator to collect your name, the name of the tribe or group you represent, your telephone number, and your email address (if you wish to be placed on our mailing list).

Discussion Materials : Discussion materials for this call are found on pages 3 thro ugh 4 of this document. EPA asks tribal participants to consider the questions posed and be prepared to offer your views on the questions of most interest to you.

During the Call : Normally your line will be muted by the operator. If you have a question

or comment to make, please follow the operator’s instructions to press a key on your telephone keypad. The call will be recorded to facilitate notes and a transcript.

After the Call : If you were unable to make a comment during the session, or otherwise

have comments on the regulatory changes EPA is considering, you may send your comments by email to SHPDcomments@epa.gov , or m ail them to Thomas J. Gardner, Office of Science and Technology (Mail Code 4305T), Office of Water, Environmental Protection Agency, 12 00 Pennsylvania Avenue SW, Washington, DC 20460.3

Listening Sessions for the Public and Teleconference with States

EPA held two informal public listening sessions via audio tele conference August 24 and 26,

2010

, to inform the public about the rulemaking , and to receive views on changes to the water quality standards regulation that are under consideration. EPA also held a consultation with states on August 25, and is holding additional sessions in November and December. See http://water.epa.gov/lawsregs/lawsguidance/wqs_listening.cfm for lists of participants and transcripts from the August sessions.

How to Get Additional Information

As this rulemaking proceeds we will provide information updates on EPA‟s website http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm

.

The docket for this rulemaking will contain additional information as the rulemaking progresses, including EPA communications, comments received, and information about meetings held with parties outside EPA including meeting notes, participant lists, and transcripts. The docket is

accessible at http://regulations.gov

. Once in the system, select “ search ” then key in the

docket identification number “ EPA

- HQ

- OW

- 2010

- 0606

. ”

If you have questions or comments, you may email Christina Christensen at christensen.christina@epa.gov for further information, or send an email to SHPDcomments@epa.gov

.

Discussion Questions on WQS Regulatory Revisions

1. W e are considering promoting greater transparency in the Triennial Review process. Can you share with us how your Tribe e nsures your public is involved in a Triennial Review?

2. We are considering requiring that States and Tribes take public comment on the scope of the Triennial Review. At what point in your review process do you involve your public and how would this change a ffect your process?

3. We are considering requiring that antidegradation implementation methods be adopted into their standards and submitted to EPA, rather than “identified.” Could you share the challenges Tribes have faced or would face in adopting these m ethods into your regulations?

4. We are considering requiring States and Tribes to conduct an alternatives analysis when determining if a lowering of water quality is necessary to accommodate important economic or social development. We are considering requi ring a specific option be chosen as the outcome of the alternatives analysis, such as the „least degrading feasible alternative.‟ How might such requirements affect your Tribe‟s antidegradation review process?4

5. We are considering requiring that every varia nce have an explicit expiration date, after which any renewal would need to be re

- justified. In addition, we are considering placing an outside cap on how long the duration may be, say, 10, 15, or 20 years. How would these changes affect your program? If w e include an outside cap, what would you recommend it be and what would be your rationale?

6. One idea that makes variances appealing to some people is that progress is made towards meeting WQS. If progress milestones were part of the variance do you think y our public would find variances more or less appealing?

7. After removing a 101(a)(2) use through a UAA, how does your Tribe generally identify the appropriate designated use?

8. Is the process to remove a use the same for all designated uses in your Tribe, rega rdless if it is a 101(a)(2) goal use or non

- 101(a)(2) goal use (e.g. PWS, agriculture, irrigation, navigation)?

9. We are considering requiring in regulation that States and Tribes provide documentation or conduct an evaluation in order to remove a non 101(a) (2) use, such as a public water supply use. Such an evaluation would not be based on attainability. How would this impact your current practice?

10. We understand a few States have not classified all of their waters and have heard it could

be beneficial to h ave EPA specify that all waters must be designated to protect 101(a)(2) goal uses unless demonstrated to be unattainable through a UAA. How would this affect the way your tribe is administering its standards? Would it be helpful in dealing with an adjacen t state that might not have adopted standards for state waters in which the tribe has an interest (e.g., U&A areas)?

11. We are considering clarifying that, in order to constitute an Administrator‟s Determination, a document must be signed by the Administrator and contain a statement that the document is a determination under 303(c)(4)(B). We think this will allow EPA to provide tribes with standards advice and recommendations in writing, without a

concern that such letters will be construed as a determination that obligates EPA to promulgate new or revised standards. How will this affect your Tribe‟s current practices?