Water Quality Standards Regulatory Clarifications Proposed Rule

Tribal Consultation and Coordination Webinar

November 19, 2013

Questions and Answers

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Introduction

On November 19, 2013, the U.S. Environmental Protection Agency (EPA) hosted a tribal 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 EPA’s presentation, participants asked clarifying 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 

tribal consultation comments. No tribe provided official comments during this portion of the webinar. 

This webinar had 105 registered participants, and approximately 54 parties joined the webinar. It is 

possible that participants from the same organization or agency joined the webinar from a single 

location.

Designated Uses

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 recreation use—is not designated but a secondary designated use is designated. In this 

case, the tribe is designating 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)?

Response: In the proposed rule, HAU is defined as the aquatic life, wildlife, and/or recreation use that is 

found to be closest to the uses specified in section 101(2)(2) of the Act and feasible to attain as 

determined using best available data and information through 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 tribe’s WQS, EPA would write the water qualitybased effluent limit (WQBEL) to make it consistent with the variance.

Question: Did you say that variances were capped at 10 years, 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 tribe can justify needing the variance after it expires, the variance may be renewed. However, when 

a variance is initially adopted, the variance package should include justification for the length of the 

variance (up to 10 years). In some cases, a maximum term shorter than 10 years might be applicable. 

Question: With reference to the submittal of a variance to EPA in a CWA 401 Certification, how long will 

EPA have to review the variance? The public will also have a chance to look at and comment on it also, 

correct?
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Response: If a state was trying 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 60 days to 

approve the variance or 90 days to disapprove 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 purpose of the 303(d) listing process is not the same as the purpose of a variance. A 

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

use. Time is given to make that progress. The purpose of 303(d) listing is to articulate to the public 

whether a water body is meeting its goal. If 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 wants the public to know the water body is 

not meeting its goal, even though 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 management process to happen. There is a slight difference between when 

a variance is appropriate versus when site-specific criteria are appropriate. A variance might reduce the 

need for site-specific criteria. For instance, the purpose of a variance is to recognize that 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 different criteria.

Antidegradation

Question: Have the comments received to date from states been supportive of EPA requiring the 

adoption of antidegradation implementation methods?

Response: There has been a mixed response. Some of this depends on the status of states’

antidegradation implementation methods. About half of the states have those in rule.

Question: Can you provide some examples of antidegradation implementation methods?

Response: EPA’s Antidegradation Clearinghouse (http://water.epa.gov/scitech/swguidance/standards 

/adeg) is one place where interested parties can find information about what different states are doing, 

including examples 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 Advanced Notice of 

Proposed Rulemaking for Water Quality Standards (http://www.gpo.gov/fdsys/pkg/FR-1998-07-

07/pdf/98-17513.pdf). The preamble 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) reporting and 303(d) listing? 

(USEPA Consolidated Assessment and Listing Methodology)
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Response: This can be confusing. The impaired waters listing is under a different CWA authority from the 

authority for WQS. Under section 303(d), categories 1–5 are categories of impairment. These categories 

are different from the antidegradation “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: To 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 antidegradation policy. The proposed regulatory revision would 

require that implementation methods be identified and made publicly available. As far as whether one is 

required to identify high quality and/or outstanding national resource waters (i.e., Tier 3, the most 

stringent level of protection), there is no requirement that a state or tribe needs to identify any waters 

for that kind of protection, and some 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 years ago there was a water that was meeting its WQS, it would have been

considered category 1 for 303(d) listing. Today, 10 years later, the water has become impaired, so it 

would be category 5 for 303(d) listing. Does that change what happens in terms of antidegradation? The 

answer depends on which state or tribe is dealing with its high-quality waters. If the state or tribe 

identifies high-quality waters on a parameter-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 water body-by-water body basis, the state or tribe could

base a decision about whether to provide Tier 2 protection on this impairment of one or more 

parameters. The proposal requests comment on how those types of decisions should be made.

Triennial Reviews

Question: Would the proposed regulatory revision, with respect to triennial reviews, be conducted 

during the state’s or tribe’s scheduled triennial revision or at another time?

Response: The proposed rule does not add an additional step. The proposal clarifies what should be 

considered during a routine triennial review. The current regulation calls out only designated uses; the 

proposal clarifies that a state or tribe must consider both designated uses and criteria. 

Administrator’s Determination

No questions were asked about administrator’s determinations.

Compliance Schedule Authorizing Provisions

Question: How soon will water quality 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 compliance schedule. In some cases, states and 

tribes already have compliance schedule authorizing provisions in other parts of their regulations, but 

those provisions have not been approved by EPA as WQS. In such a case, a state or tribe might need to 

resubmit that provision to EPA with an Attorney General Certification 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?
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Response: This process is the same for all WQS. The provision would be submitted to EPA for approval 

under federal CWA section 303(c). If 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 tribal 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 states and tribes limit their legal 

vulnerability. As mentioned, permits must be derived from and comply with WQS. So, if the approved 

WQS do not authorize compliance schedules, then a permit that contains one could be construed to be 

illegal.

Economic Analysis

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 aquatic life protection and human 

health 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 and work with 

states, tribes, and the public on what is in the final rule.

Official Consultation Comments

No official consultation comments were provided.