Proposed Revisions to EPA Water Quality Standards Regulation

Proposed Revisions to EPA Water Quality Standards Regulation

Written By Kenneth J. Warren, Warren Glass LLP forThe Legal Intelligencer*

The Clean Water Act (CWA) is one of several environmental statutes enacted by Congress in the 1970s. Congress sought to "attain and maintain the chemical, physical and biological integrity of the nation's waters." Congress even went so far as to set "the national goal that the discharge of pollutants into navigable waters be eliminated by 1985." In 2014, we recognize that the CWA's laudatory goals will take much longer to achieve than Congress envisioned.

Much of the difficulty in restoring the quality of the nation's waters stems from the competition among the multiple functions that the waters serve. In the CWA, Congress provided that water quality standards "shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other programs, and also taking into consideration their use and value for navigation." The dependency of agriculture, industry and municipalities upon discharges to rivers and streams has to date made complete elimination of discharges of pollutants impossible to achieve.

To make choices among competing uses, the CWA instructs states to designate the use for each waterbody and set narrative and numeric water quality criteria to protect the use. The CWA terms these goals "water quality standards" (WQS). WQS not only establish the water quality goals but also affect the stringency of water quality-based effluent limitations in discharge permits and provide the target in any total maximum daily load (TMDL) established for an impaired waterbody. Dischargers and other stakeholders therefore have a keen interest in a state's WQS.

On Sept. 13, 2013, the U.S. Environmental Protection Agency proposed "clarifications" to its WQS regulation. The six changes involve (1) a process for the EPA administrator to issue a formal "determination" when she decides that new or revised WQS are necessary in a state; (2) a requirement that states select the highest attainable use when seeking to adopt a use for a waterbody that is less restrictive than that required to provide for the protection of fish and wildlife and for recreation; (3) a provision for states to update their WQS using the EPA's latest criteria; (4) enhanced antidegradation requirements to protect high-quality waters; (5) new rules for WQS variances; and (6) a requirement that states issuing permit compliance schedules provide authorization for such schedules in their WQS. Even though they were labeled clarifications, these proposed regulatory changes may have a significant effect on the administration of the CWA. Here we address certain of these proposals.

EPA Administrator Determinations

The CWA requires the EPA to establish WQS for a state whenever it determines that the WQS that the state has established are inadequate. The EPA frequently works with states on conforming their WQS to the CWA rather than establish WQS for the states.

The EPA proposes to add a provision to the WQS regulation stating that to trigger EPA's obligations under CWA Section 303(c)(4)(B), a determination must be signed by the administrator and expressly provide that it is a determination under CWA Section 303(c)(4)(B). Nongovernmental organizations (NGOs) strongly oppose this change, noting that "26 states have no nutrient criteria at all after 15 years of 'feedback,'" and that the EPA has been ordered by one district court to make a necessity determination in response to a duly submitted petition, according to Earthjustice comments dated Jan. 2 (citing Gulf Restoration Network v. Jackson, 2013 U.S. Dist. LEXIS 134811 (E.D. La. 2013)).

States and regulated entities support the proposal, some asserting that the issuance of an EPA necessity determination is a discretionary act that a court cannot compel the EPA to perform. The Fifth Circuit will have an opportunity to evaluate the merits of that argument when it reviews the Gulf Restoration Network decision, which the EPA has appealed.

Use AttainabilityAnalysis

Another EPA proposal addresses one of the more contentious processes in the administration of the CWA, the use attainability analysis (UAA). Section 101(a)(2) of the CWA limits state discretion to select WQS by requiringWQS to provide for the protection and propagation of fish and wildlife and for recreation (the so-called "fishable/swimmable" uses) unless those uses are unattainable. In reviewing WQS, the EPA presumes that a waterbody can presently or after restoration support these uses, unless a state demonstrates otherwise through a UAA based on the factors in 40 C.F.R. § 131.10(g). The EPA now proposes to require a state relying on a UAA to adopt new or revised WQS that do not protect the fishable/swimmable uses to select the highest attainable use for the waterbody, i.e., the use category previously established by the state that is closest to the aquatic life, wildlife or recreational use specified in Section 101(a)(2) and feasible to attain.

States and various business stakeholders oppose this requirement on the ground that it unnecessarily infringes on state discretion to adopt uses and that it improperly presumes a hierarchy of uses. States contend that under the CWA, selection of categories of uses is a state prerogative. In contrast, NGOs would require states to adopt specific categories or subcategories of designated uses to ensure that the most protective attainable use becomes the WQS. They contend further that uses such as drinking water not listed in CWA Section 101(a)(2) also require protection.

Antidegradation

The EPA also proposes to modify WQS regulatory provisions imposing antidegradation requirements for high-quality waters. At present, lowering of water quality in these waters is allowed only when "necessary to accommodate important economic or social development in the area in which the waters are located."

The EPA's proposal would require each state to develop statewide methods for implementing its antidegradation policy. These methods must ensure that a waterbody is not excluded from the antidegradation program "solely because not all of the uses specified in CWA § 101(a)(2) are attained." The EPA's proposal encourages states to examine water quality on a parameter-by-parameter basis and protect those parameters exhibiting high quality. The EPA would alternatively allow a state to conduct its analysis on a waterbody-by-waterbody basis provided that the state holistically (after considering all chemical, biological and physical characteristics) determines whether the waterbody is of high quality. NGOs have asked the EPA to remove the waterbody-by-waterbody option on the ground that protecting any parameter cleaner than WQS is consistent with the goals of the CWA. States strongly support preserving their discretion to elect either option, while New York has proposed yet a third alternative: a use-by-use approach.

Before allowing a discharge that might lower water quality in high-quality waters, the proposed rule would also require, in addition to the socioeconomic analysis described above, an alternatives analysis examining whether any nondegrading or minimally degrading alternatives are available. The proposal is unclear regarding whether a state may rely on an applicant to prepare the alternatives analysis, exclude alternatives that are not cost-effective or decline to perform any alternatives analysis when the effect of a new discharge is de minimis. States seek to preserve their discretion and together with industry challenge the EPA's authority to prescribe implementation methods. In contrast, NGOs would further limit state discretion by requiring the state to select the least degrading alternative.

WQS Variances

A WQS variance establishes a temporary WQS when a state cannot attain one or more of the uses specified in the CWA despite placing technology-based effluent limitations in permits. Variances may be targeted to specific pollutants, permittee(s) or waterbodies. States employ variances when they do not want to permanently downgrade the designated use.

The EPA's current WQS regulation references variances as a permissible state policy affecting implementation of WQS, but provides no details on their terms. The EPA now proposes a new provision, which is more aptly described as a comprehensive regulation than merely as a "clarification," containing various elements for a WQS variance, including: numeric criteria that could be attained with point source controls, pollutant minimization plans and nonpoint source pollutant reductions; justification based on a UAA factor or the need to support restoration activities such as dam removal or wetland or stream reconfiguration; and a specified duration of up to 10 years, renewable based upon a showing that the actions required by the variance were implemented but the use remains unattainable. The temporary WQS would apply for purposes of setting permit limits and issuing water quality certifications while the underlying permanent WQS would apply for other purposes such as establishing TMDLs.

Variances may be best suited for waterbodies impaired by persistent bioaccumulative toxins such as mercury or PCBs that adsorb to sediments and may take decades to remediate. Variances may provide one mechanism to accommodate long-term restoration needs without permanently changing the use.

The variance proposal fails to address several issues, including (1) whether and how to consider water quality improvements that are anticipated during the variance term when selecting numeric criteria; (2) how numeric criteria can be established for the duration of the variance in situations where the permanent criteria are narrative; (3) how to accommodate restorations that will take more than 10 years to complete; (4) how to utilize a variance when nonpoint sources resist or are unable to achieve necessary pollutant load reductions; (5) how to coordinate the term of the variance with the term of the discharge permits relating to the waterbody; and (6) how to accommodate a state issuing a variance in conjunction with the permitting process, not the WQS process.

The difficulty of resolving these issues is compounded by the dramatically opposed views of stakeholders. NGOs oppose variances, support the TMDL process to attain permanent WQS, and would relegate dischargers needing more time to meet permit limits to compliance schedules. Because compliance schedules typically cannot exceed one five-year permit cycle, dischargers are likely to find this position untenable, particularly in situations where their discharges are affected by stormwater that can be remediated only with long-term soil and/or groundwater cleanup programs. Some commenters on the proposed rule also oppose the variance program as exceeding the EPA's authority under the CWA (which contains no provisions for variances, long-term restorations or direct EPA regulation of nonpoint sources) and intruding on state prerogatives.

Effect on Administration of CWA

The EPA's "clarifications" to the WQS regulation may have a significant effect on the administration of the CWA. The proposed provision that the EPA must designate its criticisms of state WQS to be a "determination" before the EPA's obligation to promulgate WQS is triggered may make it harder for NGOs to use those criticisms to compel the EPA to issue WQS. The proposed requirement that states performing UAAs adopt the highest attainable use may introduce controversy over what use is "highest." The proposed addition of implementation provisions to the antidegradation program may trigger challenges to the EPA's authority. The variance provisions are likewise likely to cause controversy by appearing too restrictive to facilitate long-term restoration, or too liberal in allowing states to defer attaining the uses specified in the CWA. In sum, while the EPA's efforts to clarify the WQS regulation are commendable, the EPA still has work to do to develop an effective, clear regulation.

Kenneth J. Warren is a founding partner of Warren Glass and has been practicing environmental law for more than 30 years. He is a former chair of the American Bar Association's section of environment, energy and resources, where he led the section's 10,000 members. He can be reached at .

Reprinted with permission from the February 14, 2014 edition of

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