## Water Quality Standards Regulatory Clarifications Proposed Rule

**Tribal Consultation and Coordination Webinar**
**November 1 9**  **, 201 3** 

**Questions and Answers**

Page 1 of 4 

### Introduction

On November 19 , 2013, the U.S. Environmental Protection Agency ( EPA ) hosted a t ribal consultation and
coordination webinar to present an overview of the Water Quality Standards ( WQS ) Regulatory Clarifications Proposed Rule. This webinar was tailored to federally

- recognized Indian tribes

. During the first half of the webinar, after E PA ’s presentation, p articipants asked clarify ing questions, and EPA responded verbally to the questions below

. In addition, during the second half of the webinar

, EPA offered the opportunity for participating Tribal Leaders and Consultation Officials to provide official

t ribal consultation comments. No t ribe provided official comments during this portion of the webinar

. This webinar had 105 registered participants , and app roximately 54 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: If REC1 is omitted, but REC2 is included, is a use attainability analysis ( UAA ) currently required? Any proposed changes to this? Response: Under current regulation at 131.10(j)(1) , a UAA would be required in the case that REC1

— a primary contact rec reation use

— is not designated but a secondary designated use is designated

. In this case, the t ribe is designat ing a use for the first time but not proposing a 101 ( a )( 2 ) use. The proposed rule does not change the existing regulation , but it clarifies when a UAA would be required.

Question: What is the proposed definition for highest attainable use (HAU) in 131.3(m)? Respon se: In the proposed rule, HAU is defined as the aquatic life, wildlife, and/ or rec reation use that is found to be closest to the uses speci f ied in section 101(2)(2) of t he Act and feasible to att ain as determined using best available data and information t hrough a UAA as defined in 131.3(g).



### Water Quality Standards **Variances**
Question: How will the new variance proposals be incorporated by USEPA NPDES Permit writers? Response: If EPA were to approve a variance as part of a t ribe’s WQS, EPA would write the water quality

based effluent limit ( WQBEL ) to make it consistent with the variance.

Question: D id you say that variances were capped at 10 y ea rs, with review every 3 years? Response: One variance term is a maximum of 10 years, with review of the progress made every 3 years.
If a t ribe can justify needing the variance after i t expires, the variance may be renewed. However, when a variance is initially adopted, t he variance package should include justif ication for the length of the

variance (up to 10 years)

. In some cases, a maximum term shorter than 10 years might be appli cable

.

Question: With reference to the submittal of a variance to EPA in a CWA 401 Certification , how long will
EPA ha ve to review the variance? The p ublic will also have a chance to loo k at and comment on it also,
correct?Page 2 of 4 Response: If a state was tryi ng to adopt a variance

, the public would provide comment during the state ’s public participation process. Once the state has submitted a variance to EPA, EPA has 6 0 days to approve the variance or 90 days to dis approve it

.

Question: Please explain why a variance would not apply to 303(d) listing decisions? It could set up listing decisions that are contrary to the grant of a variance in the first place. Response: The p ur p ose of the 303 (d) listing process is not the same as the purpose o f a variance. A

variance is used to set up a way to make incremental improvement toward the underlying d esignated

use . Time is given to make that progress. The purpose of 303 ( d ) listing is to articulate t o the public
whether a w ater body is meeting its goal. I f a variance is needed, the water body is not meeting its goals, so it would still be placed on the 303(d) list. EPA still w a nt s the public to know the water body is

not meeting its goal, even tho u gh the process is in place to move in that direction. This is different from a use change, where the underlying goal is changed.

Question: Would this type of variance help remove the need (or at least decrease the need ) for permanent "site specific criterion " changes? Is the goal here to try to eventually meet the standard, but allow some adaptive management "to get there"? Response: In terms of the last part

— yes. A variance allows an accountable , publicly transparent time
frame to allow that adaptive managem ent process to happen. There is a s light differ ence between when

a var iance is appropriate versus when site

- specific criteria are appropriate

. A variance might reduce the
need for site

- specific criteria

. For instance, the p ur p ose of a variance is to recogn ize t hat a water’s designated use is not attainable and therefore less stringent criteria are needed while work is being done to improve water quality toward the goal

. When using a site

- specific criterion

, a state is saying that the goal of the water is not changing but that use can be achieved with diff erent criteria.



### Antideg **radation**

Question: Have the comments received to date from s tates been supportive of EPA requiring the adoption of antidegr a dation implementation methods? Response: There has bee n a mixed response. Some of this depends on the status of states ’

anti de g radation imple mentation met h ods. About half of the states have those in rule.

Question: C an you provide some examples of antidegradation implementation methods? Response: EPA’s A ntid egradation C learinghouse ( http://water.epa.gov/scitech/swguidance/standards /adeg ) is one place where interested parties can find information about what different states are doing

, including e xamples of antidegradation implementation methods

.

Question: What USEPA Guidance Document defines the terms "Tier 1," "Tier 2," and "Tier 3"? Response: These terms are shorthand terms

. Interested parties can go to EPA’s WQS Handbook ( http://water.epa.gov/scitech/swguidance/standards/handbook ) or the 1998 A dvanced Notice of Proposed Rulemaking for Water Quality Standards ( http://www.gpo.gov/fdsys/pkg/FR

- 1998

- 07

- 07/pdf/98

- 17513.pdf ). The p reamble to the proposed rule also contains some background information
on these terms

.

Question: How does the Tier system relate to USEPA's Guidance on 305(b) rep orting and 303(d) listing? (USEPA Consolidated Assessment and Listing Methodology )Page 3 of 4 Response: This can be confusing. The impaired waters listing is under a different CWA authority from the authority for WQS

. Under section 303(d), c at egories 1

– 5 are categori es of impair ment

. These categories
are d ifferent from the antideg radation “ tiers. ”

Question: Are tribes required to identify high quality and/or outstanding waters? The Navajo Nation has not categorized waters as high quality and/or outstanding. Response: T o the extent that the tribe has Treatment in a Manner Similar to a State ( TAS ) and WQS, the expectation is that the tribe has an antideg radation policy. The proposed regulatory revision would require that im plem entation methods be identified and made publicly available . As far as whether one is

req uired to id entify high quality and/or outstanding national resource waters ( i.e., T ier 3 , the most stringent level of protection )

, there is no req uirement that a state or tribe needs to id entify any wa ters for that kind of protection , and s ome have decided not to use that kind of protection

.

Question: But a category of impairment (303(d) listing) would perhaps define moving from one Tier to
the next in antidegradation

. Response: For instance, if 10 ye ars ago there was a water that was meeting its WQS, it would have be en considered category 1 for 303 (d) listing. Today, 10 years later, the water ha s become impaired , so it would be category 5 for 303(d) listing. Does that change what happens in terms of antideg radation ? The

answer depends on which state or tribe is dealing with its high

- quality waters . If the s tate or tribe
identifies high

- quality waters on a par a m eter

- by

- parameter basis, a water could be impaired for one parameter but still be considered high

- quality for other parameters and receive Tier 2 protection. If a state or tribe identifies high

- quality waters on a wa ter body

- by

- water body basis

, the state or tribe could base a decision about whether to provide Tier 2 protection on this impairment o f one or more
parameters . The proposal requests comment on how those types of decisions should be made.



### Triennial Reviews

Question: Would the proposed regula tory revision, with respect to t riennial r eviews

, be conducted during the s tate ’ s or t ribe ’ s scheduled triennial revision or at another time? Response: The proposed rule does not add a n additional step. The proposal clarifies what should be
considered during a routine triennial review. The current regulation calls out only designated uses ; the

pro posal clarifies that a state or tribe must consider both designated use s and criteria.



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



### Compliance Schedule **Authorizing Provision s**  Question: How soon will water q uality standards need to be revised to include compliance schedule authorizing provisions? Response: A compliance schedule authorizing provision provides legal coverage, so it would be best for a state or tribe to adopt that before it needs to use a c ompli ance s chedule . In some ca s es, states and
tribes already have compliance schedule authorizing provisions in other parts of their reg ulation s , but those provisions have not been approved by EPA as WQS. I n such a case, a state or tribe might need to resubmit that provision to EPA with an Attorney General C ert ification so that EPA can act on it in the
WQS context.

Question: The Navajo Nation EPA has the authority in our CWA to authorize water quality programs. I
understand that EPA would like to have that submitted to EPA for approval to demonstrate that we have compliance schedule authorizing provisions . Is there some sort of approval process ?Page 4 of 4 Response: This process is the same for all WQS. The provision would be submitted to EPA for approval
under federal CWA section 303 ( c )

. I f EPA has acted on the provision and approved it , compliance
schedules could be used in permits consistent with the tribe ’ s approved WQS

. The provision does not
have to be in the tribe ’ s WQS per se . If it is in some other part of the t ribal law, that is acceptable, but
EPA needs to act on it as a WQS . Without that, compliance schedules may not be used for federal CWA

purposes. The regulatory clarification is an attempt to help st ates and tribes limit their leg al vulnerability. As mentioned, p ermits must be derived from and comply with WQS . So, i f the approved
WQS d o n o t auth orize compliance schedules , then a permit that contains one could be construed to be illegal.



### Economic A **nal ysis**  There were no questions on the economic analysis.



### Other Clarifying Questions

Question: What are 304 ( a ) criteria ? Response: CWA section 304(a) requires EPA to develop and publish recommendations for criteria levels for certain pollutants. EPA provides criteria recommendations for a qu atic life protection and h uman h ealth protection.

Question: Is it possible for EPA to conduct a Water Quality Standards Academy basic course for tribes
soon after the effective date of the final rule? Response: After the rule is final, EPA will conduct a number of outreach activities subject to availability of funding. An academy is one possibility, and EPA will also develop online modules a nd work with

states

, tribe s, and the public on what i s in the final rule.



### Official Consultation Comments

No officia l consultation comments were provided.