EPA Proposing to Formally Review Methods Used to Protect Waters From Degradation

By Amena H. Saiyid  

The Environmental Protection Agency is considering requiring states and tribes to obtain agency approval for the methods they use to protect water quality from being degraded through development or other activity that could lead to discharges of pollutants.

The provision on formal approval of anti-degradation methods is part of a wide-ranging proposal to clarify regulations governing state and tribal adoption of water quality standards.

The proposed rule is scheduled for publication Sept. 4.

EPA said anti-degradation methods play a critical role in allowing states and tribes to maintain and protect high water quality. The agency said a formal review of methods developed by states and tribes would ensure that decisions that may affect water quality--a finding that a reduction in water quality may be necessary in certain circumstances, for example--are made in “a transparent public manner and are based on a sound technical record.”

The agency also is proposing that if states and tribes determine that a reduction in water quality is necessary they issue a formal finding to that effect. The finding would be made after conducting an alternatives analysis that evaluates a range of “non-degrading and minimally degrading practicable alternatives” that may prevent or minimize the degradation associated with the proposed activity.

The agency is asking for comment on the proposed requirement that it approve the anti-degradation methods used by states and tribes, but it also said it would take comment on an alternative of allowing states and tribes to opt out of a formal review.

EPA also is proposing to provide guidance on how states and tribes can use temporary variances to water quality standards; to clarify circumstances for making changes to designated uses of waters; to outline how to incorporate compliance schedules into National Pollutant Discharge Elimination System permits, and to require public comment as part of states' and tribes' triennial review of water quality standards. The proposed rule also would clarify that an EPA administrator must make the determination that a revised or new standard is needed for a state or tribe to meet Clean Water Act requirements.

EPA said the proposed rule would directly affect states and tribes, which have to write and implement water quality standards. It would indirectly affect industrial facilities and the wastewater treatment sector, which have to incorporate changes in standards into their NPDES permits.

The proposed revisions to water quality standards regulations would amend 40 C.F.R. pt. 131. EPA said it will take comments on the proposed revisions until Dec. 3.

EPA estimates the annual costs for the entire rule would range from $5.98 million to $9.27 million over a 20-year period.

The White House Office of Management and Budget began interagency review of EPA's proposed regulatory revisions to the water quality standards rule in the fall of 2011 and completed it July 23 (2013 WLPM, 7/31/13).

Maintain, Protect Water Quality

According to EPA, Section 101 of the Clean Water Act emphasizes that the chemical, physical, and biological integrity of the nation's waters be maintained and protected.

Currently, states and tribes adopt anti-degradation policies and identify methods to implement the policies. These policies must provide protection for all designated uses of a water body and require protection and maintenance of high quality waters unless the state or tribe finds that a reduction in quality might be necessary to accommodate a social or economic development in the area in which the water is located.

EPA wants the anti-degradation methods to be subject to approval to guard against any authorized changes in use or designation. Under current rules, EPA can review the policies, but there is no formal approval process.

EPA also reiterated that water quality variances, which are subject to agency approval, are temporary. Variances give states and tribes time to work with both point and nonpoint sources to determine the best approach to reduce pollutants to attain a water body's designated use.

EPA also is proposing that variances not be allowed in states “if the designated use and criterion can be achieved by implementing technology-based effluent limits.”

Potential for Lawsuits

Alexandra Dunn, general counsel and executive director of the Association of Clean Water Administrators, which represents state and interstate water agencies, told BNA that states will be reviewing the proposed rule closely as the rule governs how states adopt water quality standards.

She said states are concerned that this formal review and approval process for anti-degradation methods may impose costly burdens, as well as prove time-consuming and create litigation. “Whenever EPA approves an action it becomes reviewable in court,” Dunn said.

She said she expects more states will opt against a formal review.

Chris Hornback, senior regulatory affairs director for National Association of Clean Water Agencies, told BNA that EPA is finally recognizing that variances are being under-used. “But a likely concern is that where there is more specificity and requirements for EPA approval, there is likely to be less flexibility,” he said.

EPA will accept comments identified by Docket I.D. No. EPA-HQ-2010-0606 at http://www.regulations.gov.