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. 1 The 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 antidegradat ion

. 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 involve d 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 Fo rum in order to document its work and for the purpose of informing EPA and fellow states regarding potential guidance and/or regulatory changes to anti de gradation programs around the country. 3 Achieving Effective and Efficient Implementation of Antidegra dation 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 flexib ility 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 historica l 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 th e variety of approaches and perspectives among states. This summary attempts to capture the key aspects of the Forum’s work; a dditional 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

2 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 relations hip in this are a . 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 Ag ency 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 path s 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 permit s 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 issue s 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 guidan ce 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 o r more of these issues, states ( as co - regulators and partners in maintaining water quality across the co untry) 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, particul arly in light of any changes to the antidegradation program.Water Quality Standards Communication Forum Response to EPA Regarding Antidegradation

August 2010

3  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 f or 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 documentatio n of their efforts to minimize water quality degradatio n 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 b y EPA

 Forum members agree it is important to document state procedures that are in place and functional . EPA should work with states to i dentify any improvements to those process es that provide appropriate protection and public participation

.  The preference of Forum members is that EPA either maintain s status quo or issue s 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 change s . 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 impleme ntation 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 man datory. 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.Water Quality Standards Communication Forum Response to EPA Regarding Antidegradation

August 2010

4 EPA Issue 2: Ens uring 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 identif y 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 f ollowing : o EPA guidance could i dentify 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 diffe rent 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 trade offs and f lexibility 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 anti de gradation in earnest for the first time with no n ew 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 alternati ves 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: E stablish ing conditions for allowing categorical exemptions or exclusions from antideg radation review (de minimis)

 Forum members believe states should f ocus 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 antidegrad ation 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.Water Quality Standards Communication Forum Response to EPA Regarding Antidegradation

August 2010

5 o It would be helpful for EPA to clarify what exemptions it would allow, not just those exemptions it think s 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 with out a cumulative cap. o Basing insignificant discharge on a percentage of a ssimilative 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 f or 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 th at growth may be directed to undeveloped areas because of availab ility 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 conduc ted for activities permitted under general permits

 Forum members agree that states should i ntegrate antidegradation considerations into general permit development prior to issuance and ensure that g eneral 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 per mits (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 legislati ve 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 preference s regarding general p ermits while still allowing EPA the option of vetoing permits that it believes reflect insufficient antidegradation review.Water Quality Standards Communication Forum Response to EPA Regarding Antidegradation

August 2010

6 EPA Issue 5: Expand ing on the role of the ‘importance’ determinations in antidegradation reviews

 Forum members believe that bette r 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 sho uld 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 scientif ically 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 st ates 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

-by

waterbody approach and the pollutant

-by

-pollutant approach. It would also be beneficial for EPA to clarify the purpose of antidegradation

—is it to protect high

quality waters or is it to protect high water quality?Water Quality Standards Communication Forum Response to EPA Regarding Antidegradation

August 2010

7 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 we ll 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 t erms 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,” fo r 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 an d potential variation in state programs while also increasing clarity and regularizing use of certain term s . 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 s tates without developed antidegradation programs c onduct 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 tradeoff s with environmental benefits an d 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 deve loped or redeveloped; others have been in place and remained constant for many years and are working well

.Water Quality Standards Communication Forum Response to EPA Regarding Antidegradation

August 2010

8  Some states have different processes for antidegradation in different contexts. For example, how should antidegradation assessments be conducted o n 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 the ir 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 move d 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

- b ywaterbody 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 ar e programs in place for reviewing NPS BMP implementation where BMPs are mandatory.  States take a variety of approaches to classifying Tier 2 waters and per forming antidegradation reviews. o How states approach this question can affect workload, so some state s 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.Water Quality Standards Communication Forum Response to EPA Regarding Antidegradation

August 2010

9 o So me states use Requirements to Maintain Existing Higher Quality (RMHQs); others set requirements to maintain waters in a particular percentile (95 th , 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 as signing 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 ex ample, p arking 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.

Fo rum Approach to TiersWater Quality Standards Communication Forum Response to EPA Regarding Antidegradation

August 2010

10 Forum Members Name Aff

iliation Job Title Connie Brower North Carolina Division of

Water Quality Water Q uality 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 Es sig 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 Connecti cut 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