## Water Quality Standards Regulatory **Clarifications Proposed Rule**

**October 29, 2013 Public Meeting Questions and Answers** 

1 

### Introduction

On October 29 , 2013, the U.S. Environmental Protection Agency (EPA) held a public meeting on the Water Quality Standards (WQS) Regulatory Clarifications Proposed Rule. This public meeting wa s an opportunity for EPA to provide the public with information about the proposed rule and for the public to ask clarifying questions about the proposed rule. Sixteen participants attended. They asked clarifying questions, and EPA responded to the questi ons below.



### Designated Uses

Question: Does the rule require a use attainability analysis ( UAA ) if the state seeks to reclassify to a higher designated use ( DU ) ? EPA Response: If a state sets a DU for impaired water and a state wants to upgrade to a higher DU, a UAA would not be required as specified in Clean Water Act ( CWA ) section 101(a)(2).

Question: What are the major 131.10 (j) and (k) differences that require distinction? EPA Response: 131.10(j) provides the scenarios to specify when a UAA is required . 131.10(k) provides scenarios to specify when a UAA is not required. The proposed rule does not change (j) and (k). Rather, it clarifies when a UAA is and is not required.

Question: Can costs be considered when determining what is attainable? Judy Sheaha n, U.S. Conference of Mayors EPA Response: Yes. See 131.10(g) f actor 6 language related to substantial and widespread economic and social impact. A state may indicate that a use is not attainable because achieving the use that would
cause substantial and w idespread economic and social impacts.

Question: “Best available information” Data quality? Youtube videos? EPA Response: Refer to the definition of highest attainable use as specified in the CWA. EPA typically
defers to a state on what is the best available information and way to manage data quality. States should abide by their own regulations related to data quality.

Question: Who decides what is attainable? State? EPA? Court? EPA Response: The state and public decide what is attainable; A UAA he lps a state to determine what is
attainable.



### Water Quality Standards Variances

Question: Please elaborate on WQS variance application to “Significant wetland or stream configuration” (not dam removal). Theaux LeGardeur, Gunpoweder Riverkeeper. EPA Response: EPA was primarily thinking about damn removal, but also wanted to provide conditions
for wetland restoration. For example, a stream that has been completely channelized and encased in concrete, which is then being restored to its natural stat e might require a variance because that waterbody is not meeting a WQS during restoration activities.2 Question: Given the opportunity for triennial review of WQS, why would a single variance term be 10 years when NPDES permits have a 5 year term?
Theaux L eGardeur, Gunpowder Riverkeeper EPA Response: When we were considering what the reasonable term limit would be for a variance, we found that there may be instances when 5 years might not be long enough, and longer periods such as 20 years would allow for t oo many potential changes in conditions. Ten years seems like a reasonable compromise

— it is within two permit cycles and leaves time for the public to decide whether a variance needs to continue. The proposed rule asks for specific comments on this 10 yea r review timeframe.

Question: Why are variances allowed to last for a maximum of 10 years when the CWA limits the length of NPDES permits to 5 years? Shouldn’t the time limit for a variance be shorter? EPA Response: See previous response.

Question: Plea se provide an example (thermal or sediment) of how a location specific WQS variance in an upstream segment would not impair or have the potential to degrade a downstream segment. EPA Response: The variance cannot be used to increase pollutant loadings for a specific water body , and

i t recognizes the current limit. The variance is an opportunity to make incremental progress toward attaining the highest attainable use. The variance would not increase pollutant loading to the upstream waterbody, and thus not a ffect the downstream waterbody.

Question: Variance

– Why is justification for a variance not required for non

- 101(a)(2) uses? (Could this have unintended consequences?) Melissa McCoy, ACWA. EPA Response: The regulation requires variance justification for 101(a)(2) uses. For non

- 101(a)(2) uses

, there should be documentation that the use of waters has been considered.

Question: Are the variance requirements retroactive? So will states have to revisit permits already issues or just once the permits are up for renewal? Susan Kirsh, ACWA EPA Response: No. Nothing in the proposed rule suggests that states will have to go back to review existing variances. However, variances are WQS and subject to E PA review. The conditions of the variance will be evaluated to justify continuation of the variance.

Question: Variance

- question on renewal

• Interim requirements specified in variance

• C ondition of the original WQS variance

• What requirements or conditions contemplated? Any limit on those requirements or
conditions? Who decides? State or EPA?

E PA Response: The state and the public decide what is attainable.

Question: Highest attainable interim use

o Who decides what is attainable?

o What assumptions made regarding point source and nonpoint source controls?

o Same as 131.10(g) or different?

• Role of state identification of BMPs for waterbody variance

o Relevant to “highest attainable interim use?

o Part of justification?3 EPA Response: Point and nonpoint sourc e expectations come into play with waterbody variances. This is not a discussion of discharge variances. Best management practices ( BMPs ) should be identified and documented. This does not require implementation of BMPs

, but rather documentation for public transparency and for the state to identify what is the highest attainable use . In regard to point source documentation under 131.10, technological solutions must be demonstrated before a variance can be granted

.

Audie nce member asked for further clarification

. EPA Response: States should document the BMPs to show EPA that the state looked at what BMPs
could be implemented for point and nonpoint sources.

Question: Variance and renewal

• Documentation of whether and to w hat extent BMPs have been implemented

• What role does this information play in renewal decision?

• No renewal if BMPs not implemented? EPA Response: The proposed rule only requires that BMPs are identified and documented. If BMPs are not implemented, it does not necessarily mean that the renewal variance will be denied.



### Economic Analysis

Question: Econ

- How is the rule’s benefit on resilient ecosystems to determine climate change stressors
determined? EPA Response: EPA did not perform a quantitative benefits analysis. It would be too difficult

, and the estimate would still be uncertain. To clarify, in WQS, there are no cost

- benefit analyses . Protecting the resiliency of ecosystem was considered as an environmental benefit.

Question: Question on costs

– In the calculation of state costs to implement new requirements (especially antidegradation ), did you include state costs to defend their rules in litigation? Enviros are litigating these rules on a regular basis. EPA Response: No, EPA did not include litigation costs

, because it is highly unlikely that there would be litigation to comply with a federal rule. If you were to look at existing litigation, it usually illustrates when states are not implementing antidegradation consistently with their regul ations.

Question: Econ

– Why has there not been an economic analysis quantifying the benefits of these
revisions? EPA Response: It is d ifficult to quantify benefits . EPA would welcome formal comments that includes
ideas of how to do this.



### Triennial Revie **w s** 
Question: Triennial Review

• Not in ICR burden estimate

• What must state show if choose not to pick up EPA criteria?

• No renewal of decision to leave standards as is? EPA Response: The p roposal is not adding burden through this rule, as the CWA already requ ires this review. No new requirement has been added. EPA is not requiring states to justify their review, but

states would need to justify to their public.4 

### Compliance Schedule Authorizing Provisions

Question: Compliance schedule

- Reevaluate Starkist? ( Re: pre 1977 standards) EPA Response: Consistent with the Starkist decision , c ompliance schedules are not allowed for WQS put in place before 1977 that have not been revised or changed in some way. EPA issued a m emo in the

19 90s. EPA cannot change the CWA in this proposed rule.



### Antidegradation

Question: Anti

- deg

• De minimis levels? 10% cumulative assimilative capacity? (8/10/05 Ephraim King)

• Use in 303(d) listing

– degradation from when? 1975? EPA Response: This proposed rule does not address de minimis , which is a legal concept related to the lowering of water quality whereby a state could not require tier 2 review because there is expected to
be minimal impact to a waterbody

.

Question: For proposal on anti

- degradation, does not appear to be any recogn ition of a “de minim i s” increase in load that does not require antidegradation review. Is there such an exception? EPA Response: See previous response.

Question: Anti Deg

- Describe process for evaluating alternatives for Tier 2 changes, i.e., internal EP A, public, NEPA

- like, timeline. EPA Response: Antideg alternatives analysis is not the same as NEPA alternatives analysis or CWA
section 404(d) permit analysis. Each is very specific and different. Because the existing regulation does

not mention alternati ves analysis at all, the proposed rule tries to more explicitly state EPA’s expectations for an alternatives analysis related to antideg

.

Question: Range of alternatives

– who decides what is practicable? EPA, State, court?

• Like NEPA alternatives analysi s? Like 404(b) guidelines alternatives analysis? Both engender litigation. EPA Response: There are many players. Permitting authorities (usually s tates) makes decisions and states have this authority . Public comments can also influence what practicable alternatives would be in the permit. If a state issues a permit, EPA has oversight authority and if EPA determine that antideg is

not being ensured, EPA could take the permit back. If the permit is issu ed, the public and other stakeholders could then raise issues again.

Question: Anti

- deg

– Would EPA consider adding examples of “practicable alternatives”? Or clarification of some sort as to the minimum requirements or boundaries on what is sufficient?

M elissa McCoy, ACWA EPA Response: See above response.

Question: Anti

- deg implementation methods

• Must ensure that i f state can identify any practicable alternatives, the state must choose one of these alternatives to imp lement. Who decides

– EPA, state , co urt? EPA Response: The state and public decide. See above response for more information.

Question: Anti

- deg

– what does EPA mean by a state developing implementation methods that “ensure”
that antidegradation goals are met. What does “ensure” mean in this context?5 EPA Response: Antideg methods should be consistent with antideg policy of the state. For example, if a state has antideg in its regs but then methods do not describe how a state would handle a T ier 2 review,
it is not clear how the state would en sure that antideg goals are met. A state n eed s to explain how the policy would be implemented and also include the public in the process

.

Question: Anti

- deg

- If EPA ultimately required antideg implementation methods be adopted, do you
have an estimate for the # of states that do not currently have them in their regs? EPA Response: EPA does not have an official number

, but staff estimate that approximately 30% of states have antideg in guidance rather than regulation. However, this topic is n ot black and white.

Question: Anti

- deg

– would implementation methods be required only for permitting or for 303(d) listing as well? EPA Response: Typically states address how they will address antideg thr ough permitting. In terms of setting WQS, a state should consider the minimum elements. EPA does not need to see antideg
addressed in section 303 ( d ) listing. Additionally, section 303 ( d ) listing not addressed in this proposed rulemaking.

Question: Anti

- de g

– If “methods” were reviewable, would this apply to subsequent guidance (e.g., for permitting)? Melissa McCoy, ACWA EPA Response: Antideg implementation methods are reviewed by EPA, but EPA does not require adoption as state reg ulation

. Under CWA section 303(c)

, EPA would review a state’s antidegradation methods if those methods are adopted as part of the state WQS , but EPA cannot take action on methods if they are not in WQS . Traditionall y permitting reg ulations do not always constitute a WQS.

Question : Anti

- deg

– why not clarify 131.13 instead? Melissa McCoy, ACWA EPA Response: Part 131.13 is related to general WQS policies in areas where there is some discretion for states (e.g., low flow). For instance, i f a state wants to use variance procedures, they can. Under 131.12, antidegradation is a fundamental part of WQS for every state. EPA does not consider antideg not as discretionary.



### Administrator’s Determination

Question: Is there any opportunity for an a dministrator’s decision to be subject to more collaborative stakeholder participation outside of a petition? Theaux LeGardeur, Gunpowder Riverkeeper EPA Response: An administrator’s determination is not subject to notice and comment before the
Admin istrato r makes that determin ation. The authority for an administrator to make a formal
determination is viewed as discretionary

, and that has been upheld in court

Question: Triennial Review

– Scope is unclear of provision requiring review of new technical info.

• Is scope limited to only official 304(a) guidance docs or to any published tech literature?

• Is first triennial review supposed to include new info published since last triennial review or is it retrospective to initiation of clean water act? EPA Response: EPA’s proposed revision limits considerations to 304(a) criteria rec ommendation s , but
states and tribes should consider the best available science when conducting a triennial review

. EPA expects that a state’s n ext triennial review would include a review o f all the current 304(a) criteria6 rec ommendation s. The f irst review is more inclusive and would consider all, but subsequent reviews
could focus on updates to 304(a) criteria.



### Other Clarifying Questions

Question: Can you share any information on the corresponding guidance or technical support materials that EPA may have planned relating to the final rule? EPA Response: EPA has been updating the WQS handbook and continues to work on perfecting EPA’s interpretation of the CWA within that document. EPA h as an internal plan of action to continue that process and update the handbook to reflect the final r ule , when published

.


### Public Comments (End of Meeting)

Bill Telliard

• Commendable job by EPA.

• A number of states are considering metals concentrations and where do we stand on specific
metals.

- Varies day to day. Look at variances to convert from total “X” to dissolved “X”

• Can this be considered in the variance? Might be able to push states into compliance.

• EPA should show ideas for variances (examples) that could get states from A to B (compliance).

• Requesting EPA to give examples of what is needed for a variance.