1 **D RIVERS AND**  **B ENEFITS OF**  **WQS R**  **EG R**  **EVISION P**  **ROPOSAL –**  **M AY**  **2013 Designated Uses**  1. Highest Attainable Use Driver : To eliminate situations where a state demonstrates that a designated use is not attainable but does not replace that use with another. For example, we wish to avoid situations where a state adeq uately demonstrates that a warm water aquatic life use is not attainable based on one of the six factors , but has neither adopted another use to protect lesser aquatic life expectations nor demonstrate d that no aquatic life use is attainable. Such a situation leads to an inefficient and ineffective transaction as EPA cannot approve the revision without one of the two state actions. Benefits :
 Refocuses the public debate from “whether to allow a downgrad e” to “what is achievable.” Gives the public an avenue to help develop constructive solutions rather than simply opposing “downgrades.” Allows states to seek public input on the use change and its replacement concurrently.  Having expectations clearly stated in the regulation will reduce the time and resources spent by states and EPA resolving the issue after the UAA has already gone through the public process and formally submitted to EPA.  When EPA meets its mandatory review timeframes, it is less vu lner able to mandatory duty lawsuits. Consequently, EPA will be able to staff better communication/coordination with state partners, as opposed to staffing mandatory duty litigation. 2. Clarifying when a UAA is or is not required Driver: The current uses regulations have led to a significant amount of confusion because 40 CFR 131.10(g), (j), and (k) are not connected and, if read independently, could lead to an interpretation regarding when a UAA is required that is contrary to the inte rpretation given when the sections are read together . The revisions will ensure that all three provisions are interlinked such that there is only one common interpretation . Further, the revisions will provide for a more explicit connection between these sections and EPA’s interpretation of section 101(a)(2) of the CWA. Benefits :
 Will make clear to States, tribes, and the public when a UAA is required and when it is not.  Will increase consistency in EPA Regional responses regarding which use changes must b e justified using one of the 131.10(g) “attainability factors.”  Will provide states/tribes additional flexibility (grounded in the CWA) for removing/refining uses not specified in CWA section 101(a)(2) (e.g., public water supply, agricultural use, irrigati on use).2

 The legal framework established in the preamble will help EPA when defending future litigation on use removals and variances, especially as EPA is seeing an increasing use of variances for uses not specified in 101(a)(2), such as for agricultural and irrigation uses.  Will increase transparency to the public as we implement the existing program position on this issue. **Antidegradation** 1. Identifying High Quality Waters Driver: Stakeholders have expressed concern over the possible use of the waterbody
– by
– waterbdy approach for identifying high quality waters , threatening legal action if EPA does not prohibit such an approach. EPA’s revisions u se a targeted change to preserve the current state/tribe flexibility to prioritize certain waters for Tier 2 protection , while addressing a legitimate concern
. Benefits :
 Provides regulatory protection of state flexibility that is currently used by 1⁄2 of the states that might otherwise be eroded in highly likely, case - specific litigation.
 Confirms longstanding guidance allowing pollutant

- by

- pollutant or waterbody

- by

waterbody approaches or a hybrid approach, all of which are in use by states
. 2. Alternatives Analysis Driver: Stakeholders have expressed concern that some states are either not condu cting an alternatives analysis before authorizing a lowering of water quality, or, even if they do an alternatives analysis, they do not select alternatives that would have less environmental harm. EPA’s discussions with states have revealed that states m ay be conduct ing these alternatives analysis, but the existence of the analysis is not transparent to the public. Therefore, the revisions are intended t o be explicit regarding expectations for states and tribes when allowing a lowering of water quality i n a high quality water as required by 40 CFR 131.12(a)(2) 1 , and to increase public transparency regarding such decisions , while maintaining as much state flexibility as possible.

1 131.12(a)(2) **“**Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State's continuing planning process, **that allowing lower water quality is**  **necessary to accommodate important economic or social developmen**  **t in the area in which the waters are located**  . In allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the highest statu tory and regulatory requirements for all new and existing point sources and all cost

- effective and reasonable best management practices for nonpoint source control. ” (emphasis added)3

Benefits :
 Retains goal to ensure states select and implement an alternative , if available, that would cause less environmental harm than the proposed lowering, yet still allows states to take case specific factors into consideration.  I ncrease public acceptance and efficiency of the transaction
.  Rather than specifying a rigid “alternatives analysis” procedure, the proposal builds on some current state practices and EPA’s longstanding guidance and only requires a state/tribe to identify a range of alternatives that prevent or minimize degradation
. The proposal maintains state flexibility to choose the alternative that is “feasible” before allowing degradation to occur.
 E xplains how a state can utilize its flexibility to select the alternative from within the range and that it can select the original project proposal if other alternatives are not feasible
.  Preamble explicitly a llows for considerations of cross

- media impacts
.  Strikes a balance between status quo and driving states to select the “least degrading feasible alternative” which some environmental groups advocat e.
3. Adoption of Implementation Methods Driver: Not all states have sufficient antideg radation implementation methods. EPA’s efforts to persuade states to establish such methods have been met with resistance. In addition, those states that have sufficien t antidegradation methods may not have methods fully accessible and transparent to the public. Benefits :
 Provides a minimum set of expectations for what aspects of antidegradation all states must address in their antidegradation method , while allowing state the discretion to tailor their methods
. EPA believes that there are States with adequate programs today that already meet the minimum set of expectations.  States and tribes retain flexibility in what form they adopt their antidegrada tion implementation methods. States and tribes could adopt them into water quality standards regulations, other regulations, or incorporate the methods into regulation by reference.  Working up front with the state and public on antidegradation methods t hat meet the requirements of the CWA and the regulation r educes legal vulnerability for both states and EPA. Currently, EPA is vulnerable to mandatory duty suits to promulgate methods for states, and to withdraw state NPDES delegation
.  Responding to anti degradation litigation and petitions is a significant resource drain for EPA 2

.
2 EPA has received three petitions to withdraw a State NPDES program due to the state’s failure to adopt antidegradation implementation methods into regulation. EPA has also had 6 WQS lawsuits in the past 204

**Variances** Driver: Variances are currently underutilized or misused , often because there is no regulatory framework to guide states and the public . The only framework EPA have is built on a legal opinion and relies on the uses regulations which are not always the right match for scenarios in which variances are needed. EPA has recognized that the EPA Region receiving the most variance requests is also the one that has an established regulatory structure for variances through the GLI (Region 5). EPA’s revisions are intended to provide clarity and specificity to the use and application of WQS variances, such that states can use them when appropriate. The proposal articula tes the flexibility available to states when adopting variances, and provides sufficient accountability to ensure to the public that variances will be used to foster environmental improvements. Benefits:
 Clarifies EPA’ s expectations, bri ngs transparency to the process , and helps promote use of variances by significantly reducing confusion, inconsistency, and mixed interpretations about how, when, and where variances may be used.
 Will enhance the ability of some states to issue variances (“EPA says they’re OK”).
 Providing a direct link to CWA authority and providing separate regulations for variances (from uses) allows EPA to be more flexible for variances tha n it can today. o For example, under the proposal , EPA could al low a variance for a point source e ven if implementing BMPs for non

- point sources could potentially enable WQS attainment. The variance could serve as a mechanism to provide time to explore and implement those BMPs. In contrast, a use removal (and under today’s existing regulations, a variance) would be prohibited if the required prospective analysis showed that imposing “reasonable and cost effective BMPs for NPS control” would allow the current use to be achieved. 3
 Provides the regulatory cla rity needed to preserve a state/tribe’s ability to submit a variance for uses not specified in CWA s ection 101(a)(2) and identifies when a justi fication for a variances must be based on attainability related factors.

years (most in the last 10 years) that directly challenge a state’s lack of antidegradation implementation methods or in adequate antidegradation implementation methods in guidance. Several of which have led to EPA proposing or promulgating antidegradation implementation methods for states. EPA prefers to have states develop their own programs.

3 40 CFR 131.10(d): “At a mi nimum, uses are deemed attainable if they can be achieved by the imposition of effluent limits required under sections 301(b) and 306 of the Act and cost

- effective and reasonable best management practices for nonpoint source control.”5

**Triennial Review** Driver: There has been concern that some states may not be revising their water quality criteria often enough, particularly when EPA publishes new CWA 304(a) criteria. Therefore, EPA’s revision is intended t o increase routine consideration of updated criteria and whether u pdates are needed to continue protecting the designated use. Also, outdated criteria are a legal vulnerability and can undermine the integrity of state standards. Benefits:
 Does not mandate updating of criteria. States retain the discretion to determine whether criteria revisions are necessary to protect the designated use.
 Encourages states to use their triennial review to preempt legal challenges by proactively considering EPA’s 304(a) criteria and providing adequate documentation for how the state’s cr iteria continue to protect the designated use with or without revisions
.  Gives stakeholders an avenue to provide data and comments where they perceive the state standards have outdated criteria. **Compliance Schedule Authorizing Provisions** Driver: Despite the Star

- Kist EAB case, stat e s may not be aware what they need to do administratively to legally utilize a permit compliance schedule. EPA’s revisions are intended t o explicitly state EPA’s expectations in light of the Administrator’s 1990 decision in t he Star
- Kist EAB case. Benefits:
 Provides an up

-front transparent legal basis for future permits with WQBEL compliance schedules to “derive from and comply with” water quality standards as required by 122.44(d). 4
 Clarifies an individual compliance schedule is a permitting tool and is not itself considered a WQS. Issuing a compliance schedule continues to be the responsibility of the permitting authority under existing NPDES regulations.

4 40 CFR 122.44(d)(1)(vii): “When developing water quality

- based effluent limits under this paragraph the permitting authority shall ensure that: (A) The level of water quality to be achieved by limits on point sources established under this paragraph is de rived from, and complies with all applicable water quality standards; ...”