Water Quality Standards Communication Forum

Response to EPA Regarding Antidegradation

August 2010

1

Background

The Water Quality Standards Communication Forum (the Forum) is a group of water quality

standards managers from around the US working together to improve communication among states

and between states and the US Environmental Protection Agency (EPA). The Forum includes a

representative from each of EPA’s ten regions and one representative from an interstate water

quality control commission.1The Forum is funded through a grant from EPA, managed by the

Water Environment Federation, and facilitated by The Keystone Center.

The Forum began its substantive deliberations in early 2009 by identifying topics that pose

particular challenges to water quality standards programs. Antidegradation rose to the top of the list

as an extremely complex issue and one not consistently understood or implemented across states; it

is plagued by substantial confusion among water quality standards managers about EPA’s intentions

or expectations, and an increasing focus of lawsuits from stakeholders. Additionally, in

conversations with EPA staff through the State/EPA Workgroup,

2

Forum members learned that

improving antidegradation implementation was becoming a priority for EPA as well. Based on

these assessments, the Forum agreed to focus its attention on antidegradation.

The Forum conferred about antidegradation issues during a series of regularly scheduled conference

calls and during two in-person meetings with EPA in Alexandria, Virginia. Some conference calls

consisted of Forum members only, while others involved EPA personnel as well. In two instances,

the Forum arranged conference calls with outside experts who respectively represented the

perspective of environmental interests and the regulated sector. This paper summarizes the key

themes and views of the Forum in order to document its work and for the purpose of informing EPA

and fellow states regarding potential guidance and/or regulatory changes to antidegradation

programs around the country.3

Achieving Effective and Efficient Implementation of Antidegradation Requirements

Several recurring themes arose during the course of the Forum’s deliberations about

antidegradation. One was the natural and expected tension between achieving a reasonable level of

national consistency and providing sufficient flexibility for individual states to address the wide

variation that exists in water resource programs, regulated entities, and institutional factors. This

issue is particularly acute in the antidegradation area given that states have, in light of the historical

lack of regulation and guidance, developed a number of different approaches to implementing

antidegradation. While any movement toward greater national consistency may have certain

1 The Forum also includes a seat, currently vacant, for a representative from a Tribal water quality standards.

A list of Forum members is included at the end of this document.

2 The State/EPA Workgroup is a group of 5 members of the Forum who represent the larger Forum in regular

discussions and periodic meetings with EPA staff.

3 The Forum deliberations on antidegradation have been complicated and lengthy, reflecting the complexity

of antidegradation programs and the variety of approaches and perspectives among states. This summary

attempts to capture the key aspects of the Forum’s work; additional detail of Forum and Workgroup calls and

meetings is available from Doug Thompson of The Keystone Center at dthompson@keystone.org.
Water Quality Standards Communication Forum

Response to EPA Regarding Antidegradation

August 2010

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benefits, it is almost sure to be problematic for some number of states. The states, moreover, differ

considerably in the sophistication and maturity of their programs. Some states have well developed,

long-standing antidegradation programs; others are still in early stages of gestation. The mosaic or

patchwork effect when the state programs are viewed as a whole represents a significant challenge

to devising effective and broadly supported changes to guidance or regulation in the antidegradation

arena. An uptick in litigation also shadows these discussions and in some circumstances may create

a tension between limiting governmental legal exposure on one hand and maintaining needed and

pragmatic flexibility on the other. Finally, there is the question of how the states and EPA can

fashion the most effective working relationship in this area. What does it mean to work

collaboratively or in partnership or as “co-regulators,” and how does this play out in practice given

the various roles that each must play in the Water Quality Standards program?

Against this backdrop and after considerable discussion within the Forum and between the Forum

and EPA, in January 2010, EPA provided the Forum with a list of seven issues that Agency staff

were exploring for possible changes to guidance or regulation, as well as several options the

Agency was considering to address those issues. Forum members considered these issues and

options individually, in informal consultations with their regional partners, and as a group at the

April 2010 Forum meeting in Alexandria, VA. Forum members’ preferences for each of these

issues are summarized below. Additionally, EPA should take note of several overarching themes.

Overarching Themes

 In general, states prefer that programmatic changes to antidegradation be accomplished through

guidance rather than in regulation, primarily because guidance generally allows for greater

flexibility for states to choose paths that suit their state’s legal structure and environmental

character while also providing increased information about how states can improve their

antidegradation programs. In the Forum’s view, guidance permits states to proceed in ways

that reflect and respond to different policy, political, economic, and ecological contexts. Given

the wide variety of geographic, historical and institutional issues around the country, such

flexibility is critical to the success of state antidegradation programs.

 If EPA develops guidance on one or more issues related to antidegradation, clarity or direction

should be provided to EPA Regional Offices that such guidance should not be treated as

regulation or otherwise viewed as a mandatory or prescribed approach. States’ experience

suggests that some regional staff perceive or treat guidance as essentially equivalent to a

regulation and seek to revise or veto state approaches in light of this perception.

 If EPA decides to develop guidance on one or more of these issues, states (as co-regulators and

partners in maintaining water quality across the country) would prefer to be engaged in the

process. State water quality managers’ hands-on knowledge of the practical application of

guidance and day-to-day implementation challenges of antidegradation can only help strengthen

any final guidance that EPA might produce.

 Antidegradation programs, as well as any changes to them (in guidance or in regulation),

intersect with permitting programs, and can have a particularly profound effect on general

permits. Considerations for this intersection and clarification about how best to navigate it

would be beneficial to states, particularly in light of any changes to the antidegradation

program.
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Response to EPA Regarding Antidegradation

August 2010

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 The more complicated and burdensome to state resources antidegradation implementation is

made, the less likely it is to be fully or broadly implemented and the more likely there is to be

demand for exemptions or other ‘off-ramps.’

 There may be more antidegradation implementation going on in states than is apparent. This

implementation is often unpublicized and goes unacknowledged from a national perspective

either from lack of state documentation of their efforts to minimize water quality degradation or

from alteration of project proposals before they become a matter of public record.

EPA Issue 1: Clarifying that antidegradation implementation methods must be adopted in

state WQS and approved by EPA

 Forum members agree it is important to document state procedures that are in place and

functional. EPA should work with states to identify any improvements to those processes that

provide appropriate protection and public participation.

 The preference of Forum members is that EPA either maintains status quo or issues a policy

memo or guidance stating that implementation methods should be required rather than

“identified,” but allow states to document their implementation methods in ways other than

through a mandatory inclusion in water quality standards.

 Members’ reasoning and other considerations include the following:

o Implementation can be required and improved without regulatory changes.

o Many states already understand implementation methods to be an important part of

their water quality standards and, when such standards are not already in place, are to

be adopted by rule and approved by EPA.

o State contexts are unique, rulemaking procedures vary and sometimes can be quite

difficult.

o Some states have incorporated implementation into their planning rules; moving

implementation methods into water quality standards would be cumbersome and

result in little change in antidegradation implementation.

o If EPA provides guidance, such guidance should provide examples of approaches

that have been approved and those that have not without precluding other

approaches, so that states are not left to guess about what is acceptable and do not

need to invest resources in multiple efforts to draft acceptable implementation

methods.

o EPA may not have the authority to require that it approve state implementation

methods. However, getting EPA to review implementation methods could be helpful

and provide useful insight, so long as such review is voluntary rather than

mandatory.

o EPA approval of implementation methods might be interpreted as determining that

those methods are permanently fixed and thereby preclude any flexibility on the part

of state water quality managers to make necessary improvements.
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EPA Issue 2: Ensuring that states conduct alternatives analysis and carry out other minimum

elements of antidegradation implementation methods

 Forum members agree it is important that states document implementation procedures and

“show their work.” States should identify the “what” and “how” of minimum elements in state

implementation guidance or similar document.

 Forum members believe that new EPA guidance on this issue is preferable to new federal

regulation.

 Members’ reasoning and other considerations include the following:

o EPA guidance could identify elements to include in implementation methods but

should not mandate that they be incorporated to allow tailoring to specific state

programs and needs.

o Each element for consideration in implementation methods has different impacts and

benefits, which may vary based on the specific context in each state. States should

be permitted to evaluate options and proceed in a way that maximizes benefits and

minimizes adverse impacts in their own contexts. Consideration of tradeoffs and

flexibility should be maintained; guidance seems more likely to ensure flexibility

than regulation.

o EPA guidance needs to be as resource-neutral as possible, as many states will be

addressing antidegradation in earnest for the first time with no new staffing or

additional resources. Additional resources in state water quality standards programs

might be more likely to yield more robust implementation of antidegradation than

would new guidance or new regulation.

o States can work through an alternatives analysis with applicants prior to completion

of an application to ensure that best management practices are employed in the final

project application.

EPA Issue 3: Establishing conditions for allowing categorical exemptions or exclusions from

antidegradation review (de minimis)

 Forum members believe states should focus their efforts where the attention is most needed and

exempt minimal impact activities from review. Where there are many Tier 2 waters, states

should focus on areas with potential for significant degradation and provide an off-ramp for less

important impacts.

 Forum members prefer new guidance on this issue to new regulation. Exemptions remain an

important tool for states to be able to manage their programs. Cumulative caps are of interest to

several members as an option to consider; other members oppose requiring cumulative caps

(either in guidance or in regulation).

 Members’ reasoning and other considerations include the following:

o EPA should clarify what is subject to an antidegradation review, which may decrease

the application of exemptions to projects not subject to antidegradation review in the

first place.

o Guidance is needed to define critical terms like “exemption” and de minimis, which

may not be equivalent. Additional terms like “unused loading capacity” would

benefit from clearer definition.
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Response to EPA Regarding Antidegradation

August 2010

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o It would be helpful for EPA to clarify what exemptions it would allow, not just those

exemptions it thinks are acceptable.

o Cumulative caps are interesting tools, but should not be required. Among other

issues, tracking a cap is extremely problematic.

o States would benefit from additional information about ways to implement de

minimis with a cumulative cap and without a cumulative cap.

o Basing insignificant discharge on a percentage of assimilative capacity is not the

only approach and may be less protective of the best quality water. An assimilative

capacity approach is also more difficult to implement with narrative criteria. A

percentage change in ambient quality, or discharged load for existing discharges,

with Tier 1 as the backstop to prevent exceeding assimilative capacity seems a more

workable approach and offers better protection of higher quality waters (those with

more assimilative capacity).

o There is a concern that growth may be directed to undeveloped areas because of

availability of unused assimilative capacity in higher quality waters that might ease

de minimis concerns and favorably affect permit issuance.

EPA Issue 4: Resolving how antidegradation reviews should be conducted for activities

permitted under general permits

 Forum members agree that states should integrate antidegradation considerations into general

permit development prior to issuance and ensure that general permit development complies with

antidegradation.

 Forum members suggest that EPA provide guidance on conducting antidegradation reviews for

general permits.

 Forum members’ reasoning and other considerations include the following:

o EPA guidance is needed to define what types of action are subject to antidegradation

review. Guidance should indicate what types of general permits need a review and

what should be considered when drafting a general permit. Guidance should also

include examples of sufficient or appropriate antidegradation reviews for general

permits (as well as stormwater permits, §401 certifications, and other state actions).

o Some states get legislative direction regarding what can or must be covered by a

general permit. Regulation on this issue would require cumbersome and potentially

difficult legislative change at the state level. Guidance on how to proceed with

antidegradation reviews while implementing state directives would be helpful.

o A guidance approach would allow states an opportunity to comply with EPA

preferences regarding general permits while still allowing EPA the option of vetoing

permits that it believes reflect insufficient antidegradation review.
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Response to EPA Regarding Antidegradation

August 2010

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EPA Issue 5: Expanding on the role of the ‘importance’ determinations in antidegradation

reviews

 Forum members believe that better approaches are needed for determining what degradation is

“important”.

 Some Forum members recommend that EPA not take action on this issue and maintain the

status quo. “Importance” is both contextual and dynamic, and is a policy matter at the state

and/or local level. Other Forum members would prefer that EPA proceed with guidance on this

issue, clarifying outstanding issues in the Interim Economic Guidance for Water Quality

Standards. Some members indicated that EPA should eliminate the “importance” determination

altogether, as it provides little meaningful guidance regarding water quality.

 Forum members’ reasoning and other considerations include the following:

o The “importance” determination is not a water quality standards practitioners’ area

of expertise and, in practice, is not helpful in protecting water quality.

o There is no scientific justification upon which to base a determination of social and

economic importance. Scientific and technical information on alternatives, costs,

and impacts should be provided to the public, and whether a project proceeds or not

should be based on public feedback.

o It is unclear if there is an appropriate or correct order for the evaluation of social and

economic justification or if there is a better way to assess importance.

o A prescriptive and/or quantitative approach that is meaningful in all state contexts

would be difficult to identify and unworkable to implement. States need flexibility to

evaluate projects and make determinations on a case-by-case basis.

o Alternatives analysis to find a least-degrading alternative that is practicable may do

far more for stemming degradation than focusing on social or economic importance.

EPA Issue 6: Clarifying how high-quality waters may be determined

 Forum members are open to providing greater documentation of existing procedures, but have

concerns about EPA specifying exact procedures states ought to use.

 Some Forum members recommend that EPA not take action on this issue, as states have

selected different (but scientifically justified) means of identifying high-quality waters. Other

Forum members would prefer that EPA provide additional guidance.

 Forum members’ reasoning and other considerations include the following:

o EPA could remove the concept of Tier 1 and allow states to review projects and

authorize a permit that allows water quality to be lowered as long as water quality

standards are met.

o There are multiple approaches to identifying high-quality waters (see “Additional

Forum Questions and Perspectives” below). EPA should provide guidance on the

boundaries of acceptable approaches rather than identifying one approach that seeks

to encompass or supplant existing approaches. States would benefit from guidance

that provides suggestions for successful implementation of both the waterbody-bywaterbody approach and the pollutant-by-pollutant approach. It would also be

beneficial for EPA to clarify the purpose of antidegradation—is it to protect highquality waters or is it to protect high water quality?
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o Clarification regarding identification of Tier 1 waterbodies might help states make

more effective use of limited resources. Additionally, EPA could also provide

guidance on how states might address ephemeral, intermittent, effluent-dependent,

man-made waterways, as well as irrigation reservoirs and other less conventional

waterbodies.

o States would benefit from clarification regarding the role 303(d) listing has in the

classification of waterbodies.

EPA Issue 7: Clarifying the working definitions for some common terms in the

antidegradation program and implementation practice

 Forum members believe that it might be helpful to develop a common understanding of

terminology, as long as it can be done without disrupting existing working definitions in states.

 If common definitions are developed, Forum members prefer that such definitions be provided

in guidance rather than in regulation.

 Forum members’ reasoning and other considerations include the following:

o A common understanding of terms is needed for discussion and evaluation of

proposed discharges. However, a specific definition may lead to increased rigidity,

if it precludes existing applications of particular terms in specific circumstances.

Identifying a single definition of central terms like “degradation,” for example, could

have substantial impacts on water quality programs throughout the country, requiring

some states to modify their programs.

o It will be challenging to strike the appropriate balance between being sufficiently

general to allow for existing and potential variation in state programs while also

increasing clarity and regularizing use of certain terms.

Additional Forum Questions and Perspectives for EPA to Consider

Regarding Antidegradation Programs and Approaches

 Is EPA interested in evaluating states’ processes or the outcomes of those processes?

 How should antidegradation proceed in states where EPA has primacy?

 Is antidegradation broader than the Section 402 NPDES program? Is it for all activities that

could lower water quality? Can states without developed antidegradation programs conduct

antidegradation reviews through Section 401 certification?

 Can/should EPA require states to do public participation above and beyond that required for

public notice and comment for NPDES permits? Does it have the authority?

 Is there a need for better integrated reporting? Is this an area that is vulnerable to litigation?

 States can struggle to strike the right balance between particular uses and pollutants and

tradeoffs with environmental benefits and other values. Sometimes, for example, it can be

difficult to balance the regulatory provisions of the Clean Water Act and those of the Clean Air

Act in assessing benefits of proposed projects.

 Some state antidegradation programs are currently being developed or redeveloped; others have

been in place and remained constant for many years and are working well.
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 Some states have different processes for antidegradation in different contexts. For example,

how should antidegradation assessments be conducted on pesticide applications? Perhaps it

would be a better use of resources to focus antidegradation on a certain set of programs. Some

states include attention to non-stormwater nonpoint sources in antidegradation policies; others

do not. Some states only do antidegradation reviews for new or increased stormwater and

wastewater discharges.

Regarding Tier 1 Waters

 For NPDES discharges, Tier 1 one seems to boil down to water quality based effluent limits and

would seem to thus be wholly redundant, does EPA see it differently?

 There is great need to clarify the meaning of existing uses. Are existing uses limited to the

‘fishable/swimmable’ requirement of CWA 101(a)(2)? Are existing uses one of the uses already

defined in a states water quality rules with their associated criteria, or are existing uses a blank

slate from which to define uses not yet defined?

Regarding Tier 2 Waters

 What is the best approach to “existing” and “designated” uses? Some states define these as

equivalent; others do not.

 States take differing approaches to tiers. Is Tier 1 a point value, a range, or a percentage for a

particular criterion? Should waters be Tier 1 by default unless deliberately moved to Tier 2 or

3, or should waters be Tier 2 by default unless deliberately moved to Tier 1 or 3? When does a

water become Tier 2? Forum members, in collaboration with EPA, developed a graphic that

seeks to provide some guidance or clarity on this issue. The graphic conveys the idea that

waters may be assigned to Tiers 2, 2.5 or other intermediate tier between 2 and 3, or 3 based on

the combination of a water's intrinsic value and it's measured quality. This graphic was initially

developed at the State/EPA Workgroup meeting in April 2010 and was later refined by a Forum

member, but could have an infinite number of permutations depending on a particular state's

views on the relative weights of intrinsic value and water quality. Two examples of the graphic

are provided on page 9 of this document. There should be some flexibility or “wiggle room”

between the top of Tier 1 and the bottom of Tier 2.

 One concern is that a waterbody could be below standards for one parameter while meeting or

exceeding standards for all other parameters and still lose its Tier 2 status. In a waterbody-bywaterbody approach should high quality water judgments be use-specific?

 Assurance of ‘other controls’ means point source discharges are in compliance or on a course

for compliance (e.g. compliance schedule) with their effluent limits, and that there are programs

in place for reviewing NPS BMP implementation where BMPs are mandatory.

 States take a variety of approaches to classifying Tier 2 waters and performing antidegradation

reviews.

o How states approach this question can affect workload, so some states choose to identify

fewer waters as Tier 2 but to protect those Tier 2 waters aggressively.

o Some states create tiers through regulation; some do not. Some states require

rulemaking to change the classification of a particular waterbody; others do not.
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August 2010

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o Some states use Requirements to Maintain Existing Higher Quality (RMHQs); others set

requirements to maintain waters in a particular percentile (95th, for example).

o Insufficient data and/or monitoring or analytic tools can make it challenging for states to

classify waters and to do antidegradation reviews on new applications or projects.

o Mining poses a particular challenge to antidegradation in some states.

o Some programs benefit from well-defined, numeric standards or well-defined narrative

approaches to assigning waters to a particular tier.

o Some approaches allow for easy comparison across communities; others do not. Some

approaches allow for quick response times for pressing projects or opportunities; others

do not.

o Use of biological data and its integration with chemical quality data needs to be more

fully explored and clarified.

Regarding Tier 3 Waters

 Tier 3 may not be as simple as is believed. Some states have a detailed Tier 3 process that

accommodates certain limited developments or uses. For example, parking lots in state or

national parks could raise antidegradation considerations in some programs.

 Federal regulations require “no degradation” not “no discharge” for Tier 3 waters.

 Some states use the concept of “Tier 2.5” as a middle ground between Tier 2 and Tier 3; others

use it due to difficulties in agreeing on a definition of restrictions for Tier 3 waters.

Forum Approach to Tiers
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Response to EPA Regarding Antidegradation

August 2010

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Forum Members

Name Affiliation Job Title

Connie Brower North Carolina Division of

Water Quality

Water Quality Standards Coordinator

Martha Clark

Mettler

Indiana Department of

Environmental Management

Deputy Assistant Commissioner, Office

of Water Quality

Richard Eskin Maryland Department of the

Environment

Director, Science Services

Administration

Don Essig Idaho Department of

Environmental Quality

Water Quality Standards Coordinator

Debra Hammond New Jersey Department of

Environmental Protection

Chief, Bureau of Water Quality

Standards and Assessment

Sarah Johnson Colorado Department of

Public Health and

Environment

Standards Unit Manager, Water Quality

Control Division

Randy Pahl Nevada Division of

Environmental Protection

Special Projects/TMDL Coordinator

Derek Smithee Oklahoma Water Resources

Board

Water Quality Division Chief

Paul Stacey Connecticut Department of

Environmental Protection

Director, Planning and Standards

Division

Michael Tate Kansas Department of Health

and Environment

Chief, Bureau of Water - Technical

Services Section

Peter Tennant Ohio River Valley Water

Sanitation Commission

(ORSANCO)

Deputy Executive Director