EPA Listening Session Invites Public Comment on Potential Changes to

Water Quality Standards Under the Clean Water Act

On July 30, 2010, the United States Environmental Protection Agency (EPA) published in the Federal Register its plans to initiate a national rulemaking to promulgate targeted changes to its water quality standards (WQS) regulations under the Clean Water Act (CWA). The EPA expects to publish proposed rules in the Federal Register in the summer of 2011.

On August 24, 2010, the EPA held the first of two public listening sessions intended to respond to specific factual questions relating to, and accept comments on, the scope and nature of the proposed changes being contemplated. During the listening session the EPA stated that written comments may be submitted to the EPA at any time; however, the EPA also stated that comments will be most useful for internal discussions if received by September 10, 2010.

A brief overview of the targeted changes currently contemplated by the EPA is provided below. In addition, you can view the Federal Register notice and a presentation prepared by the EPA to summarize the proposed rulemaking.

1. Antidegradation

The regulations currently require states and tribes to adopt specific antidegradation policies but only obligates them to identify associated implementation plans. The EPA is considering requiring that antidegradation implementation plans meet certain minimum requirements and be adopted into states' and tribes' WQS. Formal adoption of implementation plans by states and tribes, usually in the form of regulations, could reduce flexibility and would require their submission to the EPA for review and approval under Section 303(c) of the CWA.

2. Administrator's Determination

The administrator of the EPA currently is authorized to determine whether a revised or new WQS is necessary to meet the requirements of the CWA. Where such a determination is made, the EPA must propose and finalize appropriate federal standards (unless the state or tribe revises its standard beforehand). The EPA noted the potential for confusion regarding what constitutes the administrator's determination that a new or revised WQS is necessary. The EPA is considering a revision requiring that such a determination be signed by the administrator (or designee) and include a statement that the document is a determination under Section 303(c)(4)(B).

3. Designated Uses

Section 101(a)(2) of the CWA establishes a national goal for water quality, i.e., "protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water," wherever attainable. The EPA has long interpreted this section to mean that the CWA aspirational goals are attainable unless otherwise demonstrated. The EPA is considering modifying the regulation to codify its interpretation of Section 101(a)(2) and to require adoption of the Highest Attainable Use closest to the goal where a use specified in Section 101(a)(2) cannot be achieved.

4. Variances

Current regulations permit states and tribes to adopt variances to WQS; however, the EPA notes there is little consistency among variances (e.g., not all variances are required to have an expiration date). The EPA is considering establishing regulatory expectations for variances. The EPA stated during the listening session that it is interested in receiving public comment on what factors should be considered in establishing consistent, appropriate, transparent and enforceable implementation of variances. This EPA proposal also threatens to reduce local flexibility.

5. Triennial Reviews

States and authorized tribes are required to hold a public hearing every three years to review WQS and to revise or adopt standards as appropriate. During the public listening session, the EPA noted that applicable regulations do not require states/tribes to solicit public comment when determining the scope of their review (thereby potentially narrowing the scope of review) and do not explicitly require periodic evaluation of whether water quality criteria still protect the designated use. The EPA is considering requiring states/tribes to solicit and consider public input on the scope of a triennial review and to evaluate whether water quality criteria are still protective of designated uses, taking into consideration "any" new information. The EPA noted during the public listening session that it would consider adopting guidance outlining what might be considered the most useful of "any" new information. The EPA also specifically invited comment on this issue.

6. Respond to Issues Arising from Court Decisions

The EPA is considering:

A. Revising the definition of WQS to more clearly define the types of state/tribal provisions that must be submitted to the EPA for review and action;

B. Requiring that source-specific compliance schedules for achieving an effluent limitation based on a WQS be adopted as part of a state's or tribe's WQS and also be submitted to the EPA for review and action; and

C. Requiring the submission to the EPA of state or tribal records involving public participation and a state or tribal response related to revisions of WQS.

If you would like to discuss the EPA's request for stakeholder input or any of the potential changes to the WQS, please contact Tom Dimond or Susan Charles.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice.  The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.