## Water Quality Standards Regulatory Clarifications Proposed Rule

**November 1 4, 201**  **3 Public Webinar**  **#2 Questions and Answers** 

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### Introduction

On November 14 , 2013, the U.S. Environmental Protection Agency ( EPA ) hosted a second public webinar

to present an overview of the Water Quality Standards ( WQS ) Regulatory Clarifications Proposed Rule. Participants asked clarifying questions, and EPA responded to the questions below

. The appendix provides a list of questions that EPA did not answer. The Nov ember 1 4 webinar had 437 registered participants , and app roximately 2 1 9 parties joined the webinar. It is possible that participants from the same organization or agency joined the webinar from a single location.



### Designated U **ses** Question: It was stated that the current regulations are insufficient and have not p rotected water quality . P lease give specific instances

. Response: One example is when a state has a primary contact recreation use such as swimming

, and the
state is able to show through a use attainability analysis ( UAA ) that primary contact recreation is not
attain able

. U nder the current regulations , a state could possibly not adopt an attainable use in place of
the unattainable primary contact use

. For instance, e ven though boating or canoeing might be attainable, a state does not always adopt the high est attainable use (HAU)

. This is a situation EPA want s to fix.

Question: How many UAAs has EPA ever approved? Please do not guess or provide imaginary answers. Requirements are getting much more stringent, to the point that WQS are not able to be met wi th the most advanced technology possible [regardless of cost]. A UAA may be the only way to meet the WQS. So how many have ever been approved? Response: In general, EPA has approved more WQS changes resulting from the UAAs than it has disapproved character istics.

Question: What if the highest attainable use is not the best use because of native species that exist in a water body ? What if you manage for a higher use but cause d i r e ct conflict with native species? Response: I nformation on native sp ecies or en dangered species in a w ater body should be considered as part of the analysis to identify the HAU.

Question: Can the 131.10(g) language be clarified as to which factors on which a UAA may be based,

may be revisited periodically after a UAA is granted?

Res ponse: When a state does a UAA, the reg ulations req uire that the state revisits information on any waters not currently designated for 101 ( a )( 2 ) uses to see if there is any new information to indicate that
those uses are now attainable. If they are

, a state would revise its WQS accordingly

. ( See section 131.21 of the fed eral reg ulation

. )

Question: If you replace one 101(a)(2) use with another 101(a)(2) use, like your recreation example, which use is closest to a 101(a)(2) use? Response: The HAU reflec t s the best possible use for a water body

, taking attainability factors into
consideration

— the u se closest to “ protection and prop agation of fish, shell fish , and wildlife or recreation ” that is also attainable.Page 2 of 6 Question: What type of analysis is required for removal of a public water supply use? Response: Public water supply is considered a non

- 101 (a)(2) use

. If a state wants to remove a non

101(a)(2) use, it must demonstrate to EPA the need for that use change. ; h owever , for a non

- 101(a)(2)

use , that demonstration would not have to be based on one of the 131.10(g) factors. EPA is interested in input on what types of factors should be considered in an analysis for removal of a non

- 101(a)(2) use

, such as a public water supply use. EPA is working to develop guidance on this topic.



### Water Quality Standards **Variances**
Question: Why is there a 10

- year cap ? Response: EPA settled on 10 years to balance the admin istrative expectation of renewing a var ianc e with
the desire to make sure that there are regular opportunities to revisit the factors. Five years might be
too short

— many pollution problems take longer to address

— but EPA determined that 20 years is too long. EPA w elcome s comment on whether the 10

- ye ar cap is appropriate.

Question: What is a point source required to demonstrate regarding cost

- effective nonpoint source controls? Is it onsite or offsite controls by third parties? Response: The requirement for cost

- effective nonpoint source controls is usually related to water bod y variances

. W hen a state is adopting a water bod y var iance

, it has to ident if y the cost

- e ffective and
reasonable best management practices ( BMPs ) relevant to the pollutant in question.

Question: What would a variance look like in WQS? Would it be specific to a discharger? For instance

,

“ City A has a variance for zinc. ” Response: The most common are WQS var iances for specific dischargers , such as a city ’ s publicly owned
treatment works ( POTW ) or an industrial discharge . In t hat case, the variance would specify that

“ D ischarger X is getting a var iance for Y pollutant in a particular water

. ” There are also multi ple

discharger variances , which would specify something like “ T he f o llowing five POTWs are receiving a

var iance for X pollutant based on Y analyses in these specific segments

. ” That variance would also
include the interim req uirements that the dischargers would need to meet. For a water bod y variance

, the WQS would identify the entire water subject to the variance.

Question: What is the difference between the 10

- year max imum for a WQS variance v ersus a triennial

r e view ? Response: I n a triennial review

, a state need s to see whether there is any new info rmation to show that
the var iance is no longer appropriate ; n o jus tification is needed other than answering public comment.
When a var iance expire d , the state would have to go through a full rulemaking process

, in which it
would re

- propos e the variance, justif y it , and resubmit it to EPA

.

Question: I s there a time peri o d designated between when a variance is adopt ed and when a new permit is issued? Response: A n NPDES permit must derive from or comply with applicable WQS . If a var iance is adopted in
the middle of an NPDES permit, it i s up to the permitting auth ority to d e c ide whether to revise the water quality

- based effluent limit ( WQBEL ) to reflect the variance immediately or wait until the permit is up for reissuance. EPA has typically seen that where a state is adop t ing new or more stri n gent criteria, the variance pro cess would have occur red during the previous permit cycle so that the next permit cycle will
include the variance.Page 3 of 6 Question: Is a variance based on a non

- planned change in water quality or is it usually only applied to a project that is linked to a n NPDES permit, such as a dredging project or restoration? Response: Neither. Most variances are associated with NPDES dischargers not being able to meet more stringent criteria or WQBELs . Often there are economic reasons why the variance might be needed.

Question: If a p ermittee cannot ever meet a WQS, is a variance an appropriate mechanism? That is, if technology does not exist to treat the wastewater to meet WQS, can a variance be obtained? Response: This depends on the circumstances. A state can do an a nalysis using 131.10(g) factor 6 to see whether a variance would be an effective tool

— the factor 6 analysis would consider the economic and social impacts if the facility were to close

. A WQS variance is a great tool where a discharger is critical to

a com munity and the state does not want to give up on the long

- term goal of the water body. The situation would be revisited periodically

, but the long

- term goal would be retained

. Where tech nology
tends to be the limitation, the state can evaluate what would h appen if a facility were to shut down.

Question: I would like to understand the three types of variances that are proposed. A discharger

specific variance is pretty self

- explanatory. The discharger will submit all the information that EPA
expects to see and then the variance will be tailored to the discharger. For a multiple discharger variance, the dischargers are supposed to have similar issues so the information submittal is very similar to the discharger

- specific variance. A water bod y variance seems very different because there are potentially a multitude of dischargers. The proposed regulations have explained that the information submittal must include the BMPs for nonpoint sources. So, for the point source dischargers, would the
information submitta l need to explain why each of these different discharger types could not implement their WQBELs? Presumably, if this information cannot be generated for all the different point source discharger types, would the appropriate approach be to submit informatio n for multiple discharger
variances? Response: A water body variance is closest to a time

- limite d use change. Even though it is called a water body variance

, it is a little different from the other types of variances . For both multiple discharger variances and discharger

- specific variances, the variance considers each individual discharger and not
the water bod y as a whole. For a water body variance, the analysis is similar to that for a designated use change. The analysis includes looking at the ability of the water bod y to attain its designated use and
whether some time is required to meet the water’s designated use. For a water body variance, one would need to consider both point and nonpoint sources.

Question: Also, how will these variances be implemented? Based on the Great Lakes multiple discharger variances, it seems that individual discharger variances do not require individual approval by EPA if the
state has a multiple discharger variance. Is this how a multiple discharger variance will b e implemented?
Is this also how a water body variance is to be implemented? Response: For a water body variance, the total water body analysis would be submitted to EPA. The

state would identify the water bod y and would implement the variance similarly to how it would implement a use change. In the Great Lakes, it is more case

- specific. Some states identified a specific set
of criteria (i.e., characteristics) that a discharger must meet in order to be eligible for the multiple discharger variance. The crite ria are set in rule and approved by EPA. In each case, it would depend upon how specific the multiple discharger variance is as to whether EPA would need to approve the criteria that a discharger must meet or each discharger ’ s application.Page 4 of 6 Question: Sorr y

. I have river way that doesn ’ t have any water running in it. Even after a good rain there is maybe a flow for about 200 yards outside of town then it i s gone. Response: In that situation, a state might want to do a variance or a use change. There is a factor that applies to both variances and use changes . This factor talks ab o ut natural, ephem eral , or intermittent

streams
, and i t is intended to address attainability related to low flow. How one uses the factor would depend on wh ether one is considering a use change or a variance.

Question: Is 10 year s the max imum for a WQS variance or can it be renewed to be longer than 10 years
total? Response: The proposed 10

- year maximum is for any given variance. If one can justify that the variance
needs to be renewed (e.g., when there are mercury

- related issues that would take more time)

, the
variance can be reissued.



### Antideg **radation**
Question: You mentioned thermal discharges earlier. Could you, briefly, go over that again ? Response: The existing reg ulation at 131.12 ( a )( 4 ) addresses requirements for thermal discharges under antidegradation

. Under that regulation, the ways that a state treats thermal discharges under antidegradation should be consistent with CWA section 316. EPA is n ot prop osing any changes to that regulation

.

Question: Is the “ lowering of water quality ” and “ alternatives analysis ” include requiring a permit limit at a lower concentration even though the water quality or use would not be lessened? Response: The existing regulations specif y that T ier 2 protection is req uired for w ater q uality above and beyond the 101 ( a )( 2 ) uses. Tier 2 requires that that high level of water quality be maintained. The

req uirement to do a T ier 2 review is initiated when a state or tribe is d eciding whether to allow a lowering of high w ater quality, rather than when considering a change to a designated use. Tier 2 review is about making a publicly transparent decision when a lowering of water quality is needed to accommodate some important eco nomic or social development. It is possible that the outcome of the review would show a practicable alternative to the lowering.

Question: In a case where a state is providing a s ection 401 certification for a section 404 permitted
disc harge, affecting a Tier 2 water, how does EPA envision an antidegradation alternatives analysis relating to alternatives analyses that will be done under the 404(b)(1) guidelines and NEPA for the same project? Isn ’ t there potential for significant overlap, or possibly diff erent agencies reaching different
conclusions? Response: This is a m ultifaceted question. The question centers around a s cenario whe re there is a
section 404 permitted discharge ( i.e., dredge and fill) , so this is different from NPDES permits (section 402)

. WQS apply broadly to waters of the U nited States . When there will be an impact o n waters of the

U nited States , whether through a 404

- permitted discharge or a 402

- permited discharge, there will be consideration of WQS. WQS require that if a state or tribe decide s to allow a lowering of water quality

, that must be based on a Tier 2 review. The review might consider different information depending on the type of discharge. The alternatives analysis might look different, but the state or tribe must ensure
tha t the decision is in keeping with the WQS.

Question: What is considered “ degrading? ” Response: EPA intentionally did not define degrading

. EPA r ecognize s that there is natural variability in water quality, so there is sci entific complexity in determining what degradation is

. The t erm degrading means that something has been done to lower the water quality permanently

. EPA recognizes that it isPage 5 of 6 important for s tates to have flex ibility to determine how to quantify and demonstrate degradation

, provided that the method is sci entifically justifiable

.



### Triennial Reviews
Question: Will states and tribes be expected to submit a justification for a triennial review ? Response: States and tribes are n ot required to submit any justification for their triennial reviews. T he proposed revision clarifies that states and tribes must consider all applicable WQS , including criteria

, when conducting a triennial review

.



### Administrator **’ s Determination**  No questions were asked about administrator ’ s dete rminations.



### Compliance Schedule **Authorizing Provision s**  Question: D oes the change mean that EPA must approve compliance schedules or are states only to update their water quality standards code ? Response: This question g ets at the difference between a compliance schedule authorizing provision and a compliance schedule. This rule is about the compliance schedule authorizing provision. If a state wants

to use a compliance schedule as a tool in its permitting program

, it need s to have authorizing provision s in state reg ulation s. This provision does not have to be in WQS code ; it can be anywhere in binding regulations

. The k ey is that EPA has to approve that provision under section 303 ( c )

. O nce EPA has approved the compliance schedule authorizing provision a s a WQS , the state/tribe can issue permits
that contain compliance schedule s , and those will still derive from and comply with the WQS.

Question: Will the proposed rule set a limit on length of time for a compliance schedule ? Response: No . T here i s a requ irement in the permitting program that compliance schedules have to ensure compliance with the eff luent limit as soon as possible. This is done on a permit

- by

- permit basis.



### Economic A **nal ysis** 
Question: Is the economic analysis annualized costs to state s and tribe s to comply with the rule revision, the cost to EPA to approve state and t ribal standard revisions to comply with EPA ’ s rule revision, or
both? Response: It is f or both. In the preamble and economic analysis document, there i s info rmation on bot h
sets of cost s (one

- time costs and recurring costs)

, broken out for states, the agency , and the total for
both

. 

### Other Clarifying Questions
Question: Under the new WQS proposed rule, what time period do the state s and tribe s have to implement the rule once the final rule is published? Response: Once EPA finalizes the rule

, it is effective immediately. EPA expects that it would take one
triennial review for states and tribes to implement the new requirements.

Question: Can we get a copy of the presentation slide by email or download? Response: You can request a copy of the presentation at WQSRegulatoryClarifications@epa.gov

. EPA may also post the presentation at http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm

.Page 6 of 6 

### Appendix A: Questions Not Discussed on the Webinar
Question: If the point of a 10

- year term on a variance is to allow for revie w, then what is the point of including variances in a triennial review?

Question: Due to current state and tribal budget shortfalls, is there additional funding by EPA (grants or other) that will be available to meet the new requirements? If so

, has EPA thought of any matching requirements for this funding?