Wednesday, September 04, 2013

EPA Proposes Changes To Federal Water Quality Standards

Sep 4: U.S. EPA announced in the Federal Register [78 FR 54517-54546] that it is proposing changes to the Federal water quality standards (WQS) regulation which helps implement the Clean Water Act. EPA said the changes will improve the regulation's effectiveness in restoring and maintaining the chemical, physical, and biological integrity of the nation's waters. EPA is seeking comments from interested parties on these proposed revisions and comments must be received on or before December 3, 2013. EPA notes that the core of the current regulation has been in place since 1983; and since then, a number of issues have been raised by states, tribes, or stakeholders or identified by EPA in the implementation process that will benefit from clarification and greater specificity. The proposed rule addresses key program areas including: Administrator's determinations that new or revised WQS are necessary; designated uses; triennial reviews; antidegradation; variances to WQS; and compliance schedule authorizing provisions.
    EPA indicates that it has had ongoing dialogue with states, tribes and stakeholders on key issues that are central to assuring effective implementation of the WQS program. As part of this process, the Agency has considered several fundamental questions in evaluating opportunities to improve implementation of the WQS program including which recurring implementation issues would benefit most from a regulatory clarification or update, whether there are emerging issues that could be more effectively addressed through regulatory revisions, whether the regulation continues to have the appropriate balance of consistency and flexibility for states and tribes, and whether the resulting program effectively facilitates public participation in standards decisions.
    As a result of this evaluation and consideration of continuing input from states, tribes and stakeholders, the EPA is proposing changes to key program areas of its WQS regulation at 40 CFR part 131 that the Agency believes will result in improved regulatory clarity and more effective program implementation, and lead to environmental improvements in water quality. This proposed rulemaking requests comment on regulatory revisions in the following six key issue areas: (1) Administrator's determination that new or revised WQS are necessary, (2) designated uses, (3) triennial reviews, (4) antidegradation, (5) WQS variances, and (6) compliance schedule authorizing provisions.   
  • (1) EPA is proposing to amend paragraph (b) of Sec.  131.22 to add a requirement that an Administrator's determination must be signed by the Administrator or his or her duly authorized delegate, and must include a statement that the document is a determination for purposes of section 303(c)(4)(B) of the Act.
  • (2) First, EPA is proposing to amend paragraph (g) at Sec.  131.10 to provide that where a state or tribe adopts new or revised water quality standards based on a use attainability analysis (UAA), it must adopt the highest attainable use (HAU). States and tribes must also adopt criteria, as specified in Sec.  131.11(a), to protect that use. The EPA is also proposing to add a definition of HAU at Sec. 131.3(m). Specifically, the EPA is proposing to define HAU as "the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability
    analysis defined in Sec. 131.3(g)." Second, the EPA is making appropriate edits to Sec. 131.10(g) to be clear that the factors listed in Sec. 131.10(g) must be used when a UAA is required by Sec. 131.10(j), and is restructuring Sec. 131.10(k) to clearly articulate when a UAA is not required.
  • (3) EPA is proposing to amend the triennial review requirements of paragraph (a) of Sec. 131.20 to clarify that a state or tribe shall re-examine its water quality criteria during its triennial review to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected.
  • (4) EPA is proposing to amend several provisions of Sec. 131.12 related to implementing the antidegradation requirements. These include (1) clarifying the options available to states and tribes when identifying Tier 2 high quality waters, (2) clarifying that states and tribes must conduct an alternatives analysis in order to support state and tribal decision-making on whether to authorize limited degradation of high quality water, and (3) specifying that states and tribes must develop and make available to the public implementation methods for their antidegradation policies. The EPA is also proposing to add language to Sec. 131.5(a) describing the EPA's authority to review and approve or disapprove state-adopted or tribal-adopted antidegradation policies. The language at Sec. 131.5(a) will further specify that if a state or tribe has chosen to formally adopt implementation methods as water quality standards, the EPA would review whether those implementation methods are consistent with 131.12.
  • (5) EPA is proposing and soliciting comment on revisions to the WQS regulation that will provide more specificity and clearer requirements on the development and use of variances. Such revisions will establish requirements to help improve water quality by allowing states and tribes time to work with stakeholders to address any challenges and uncertainties associated with attaining the designated use and the associated criterion. These revisions will also provide assurance that further feasible progress toward the designated use and criterion will be made during the variance period.
  • (6) EPA is proposing to add a new regulatory provision at Sec. 131.15 to be consistent with the decision of the EPA Administrator in In the Matter of Star-Kist Caribe, Inc. (1990 WL 324290 (EPA), 1990 EPA App. LEXIS 45, 3 EAD 172 (April 16, 1990)). This provision would clarify that a permitting authority may only issue compliance schedules for WQBELs in NPDES permits if the state or tribe has authorized issuance of such compliance schedules pursuant to state or tribal law in its water quality standards or implementing regulations. Any such compliance schedule authorizing provision is a WQS subject to the EPA's review and approval. The proposed provision would also clarify that individual compliance schedules issued pursuant to such authorizing provisions are not themselves WQS but must be consistent with CWA section 502(17), the state's or tribe's EPA-approved compliance schedule authorizing provision, and the requirements of 40 CFR 122.2 and 122.47.
    Access the complete FR announcement (click here). Access the EPA docket for further details and to submit and review comments (click here). [#Water]