In august 2015, the administrator of the Environmental Protection Agency (“EPA”) signed a final rule updating six significant areas of the federal water quality standards, or WQS for short, regulation, which assists the EPA in implementing the Clean Water Act (“CWA”). According to the EPA:
The final revisions provide a better-defined pathway for state and authorized tribes to improve water quality, protect high quality waters, increase transparency and enhance opportunities for meaningful public engagement at the state, tribal and local levels.
EPA Final Rule Requires that Every State Adopt WQS
Under the CWA, every state must adopt WQS in order to protect, maintain and improve the quality of the nation’s surface waters. WQS set forth the parameters for any body of water deemed to be “Waters of the United States” by designating the body of water’s uses, setting water quality criteria to protect those uses, and establishing antidegradation policies to protect high quality waters from degrading pollutants. Additionally, WQS utilize a process of back calculation procedures known as total maximum daily loads, or wasteload allocations, to form the basis of water quality-based permit limitations that regulate the discharge of pollutants into US waters under the National Pollutant Discharge Elimination System (“NPDES”) permit program.
Prior to the new final rule, the previous WQS regulation had been in place since 1983. The EPA added tribal provisions to the WQS regulation in 1991, the “Alaska rule” provisions in 2000, and the BEACH Act rule provisions in 2004.
EPA Final Rules Addresses Six Areas Regarding WQS
As initially proposed in 2013, the final rule addresses the following key program areas:
- the EPA Administrator’s determinations that new or revised water quality standards are necessary
- designated use for water bodies
- triennial reviews of state and tribal WQS
- antidegradation requirements
- WQS variances
- Provisions authorizing the use of schedules of compliance for water quality-based effluent limits (“WQBELS”) in NPDES permits
EPA Administrator’s Determinations
As it relates to the first program area, the EPA’s final rule amends the former regulation to add a requirement that an Administrator’s Determination must be signed by the Administrator (or duly authorized delegate) and include a statement that the document is an Administrator’s determination for purposes of section 303(c)(4)(B) of the CWA. The EPA’s goal in addressing an Administrator’s determination is to allow the EPA and states/tribes to communicate directly and specifically on areas where WQS improvements should be considered and establish a more transparent process for the Administrator to announce determinations under section 303(c)(4)(B) of the CWA.
The second program area addressed by the final rule relates to designated use for water bodies. There, the EPA amended the former regulation to provide that where a state/tribe removes or revises a use specified in CWA section 102(a)(2) or a subcategory of such a use that is not attainable, the highest attainable use (“HAU”) shall be adopted in its place. The final rule also amended the former regulation to clarify when a use attainability analysis (“UAA”) is and is not needed. The final rules defines the term “non-101(a)(2) use” and amends the former regulation to clarify that for such uses while a UAA is not required, the state/tribe must submit documentation justifying how its consideration of the use and value of water for those uses listed appropriately supports the state/tribal action. The EPA’s goal in including this amended language in the final rule is to provide clear requirements and ensure appropriate WQS are in place to help restore and maintain robust aquatic ecosystems and promote resilience to emerging water quality stressors.
The third program area addressed by the final rule relates to triennial reviews. Under that portion of the rule, the EPA amended the former regulation to clarify the “applicable water quality standards” that must be reviewed triennially. The final rule also requires that if a state/tribe chooses not to adopt new or revised criteria for any parameters for which EPA has published new or updated criteria recommendations under the CWA, then they must explain their decision when reporting the results of their triennial review to the EPA. The EPA’s goal in requiring states/tribes to explain their decision not to adopt new or revised criteria is to ensure public transparency and clarify existing requirements, so that states/tribes update WQS when necessary and consider the latest science as reflected in the CWA recommendations.
The fourth program area addressed in the EPA’s final rule relates to antidegradation. The amended regulation now states that states/tribes:
- may identify high quality waters on either a parameter-by-parameter approach, or on a waterbody-by-waterbody approach that does not exclude water bodies from Tier 2 protection solely because water quality does not exceed levels necessary to support all of the CWA section 101(a)(2) uses. When using the water body approach, states/tribes must involve the public in any decision pertaining to when to provide Tier 2 protection, and the factors considered in such decisions.
- must evaluate a range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activity. When the analysis of alternative identifies one or more practicable alternatives, the state/tribe must only find that the lowering is necessary if one of those alternatives is selected for implementation.
- must provide an opportunity for public involvement during the development and any subsequent revisions of antidegradation implementation methods (whether or not those methods are adopted into rule), and to make the methods available to the public.
The EPA’s goal as it relates to the antidegradation amendments is to promote public transparency and enhance antidegradation implementation through clearer requirements and expectations.
The second to last amendment made to the WQS regulations centers around WQS variances. The EPA amended the former regulation to add a section that provides a comprehensive regulatory structure for and explicitly authorize the use of WQS variances. The final rule clarifies:
- that a WQS variance is a water quality standard subject to EPA review and approval or disapproval.
- how WQS variances relate to other CWA programs and specifies the information that the state/tribe must adopt in any WQS variance, and/or the water body or waterbody segments to which the WQS variance applies, and a quantifiable expression of the highest attainable condition.
- that states/tribes must submit to EPA supporting documentation that demonstrates why the WQS variance is needed and justifies the term and interim requirements.
- that states/tribes must reevaluate WQS variances longer than five years on an established schedule with public involvement.
The goal of the WQS variance amendments is to promote the appropriate use of WQS variances when applicable WQS are not attainable in the near-term but may be attainable in the future, and provide regulatory certainty to states, tribes, the regulated community, stakeholders, and the public in making progress toward attaining designated uses and criteria that protect such uses.
Schedules of Compliance
Finally, the new rule includes provisions authorizing the use of permit-based compliance schedules. There, the EPA’s final rule adds a section to the former regulation to clarify that a permitting authority may only issue compliance schedules for water quality-based effluent limitations in NPDES permits if the state/tribe has authorized the use of such compliance schedules in their WQS or implementing regulations. The EPA’s goal in adding this language is to clearly articulate in regulation what must be done for states/tribes to be able to utilize permit compliance schedules, and ensure public transparency on state/tribal decisions to allow permit compliance schedules.
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