Among a set of proposed amendments to the federal water quality standards (WQS) regulations, the EPA is seeking to clarify that states or tribes must adopt the highest attainable use (HAU) when designating uses for regulated water bodies. The requirement would apply where a state or tribe adopts new or revised WQSs based on a use attainability analysis (UAA).
One intent of this proposed change is to ensure that states make HAU determinations based not only on what is currently attained but also on what is attainable in the future after achievable gains in water quality are realized. In other words, the intent is to have states make use designations that can be more effective in driving the management actions necessary to restore and protect water quality. The proposal would maintain the rights of states to use their own criteria in designating the HAU.
Time for change
According to the Agency, the core requirements of the WQS rules have been in place for over 30 years and need to be updated to respond to policy and technical issues, stakeholder concerns, and litigations that have emerged over that period.
In addition to the proposed change to the state HAU designation process, the EPA is seeking the following:
- Clarification that the EPA administrator must sign any federal WQS determination setting forth a new or revised standard upon determining such a standard is necessary to meet the requirements of the Clean Water Act (CWA). The EPA believes this clarification is necessary to demonstrate the difference between a federal regulatory determination and federal recommendations, some of which have been erroneously interpreted as regulatory.
- Clarification of which factors must be used in making UAAs as well as articulation of when a UAA is not required.
- Clarification that a state or tribe must reexamine 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 ensure that designated uses continue to be protected. Section 304(a) requires that the EPA revise water quality criteria to reflect the latest scientific knowledge.
- Regarding antidegradation, clarification of the options available to states and tribes when identifying Tier 2 high-quality waters, clarification that states and tribes must conduct an alternative analysis to support state and tribal decision making on whether to authorize limited degradation of high-quality water, and clarification that states and tribes must develop and make available to the public the implementation methods they use in setting their antidegradation policies. The EPA says it is considering and requesting comment on whether the Agency should require that antidegradation implementation methods be adopted as WQS and, thus, subject to EPA’s review and approval or disapproval.
- A new regulatory definition of a WQS variance and more specific and clearer requirements affecting the development and use of variances. States and tribes may grant a variance, but variances are subject to EPA’s review and approval or disapproval, regardless of the scope of the variance.
- Clarification that a state or tribe may issue a compliance schedule in a National Pollutant Discharge Elimination System (NPDES) permit only if the state or tribe has authorized issuance of such compliance schedules pursuant to state or tribal law in its WQS or implementing regulations. The EPA wants to ensure that it has the opportunity to review NPDES compliance schedules, which may be used by a state to delay attainment of WQS.
The EPA will accept comments on this proposal until December 3, 2013.
The proposal was published in the September 4, 2013, FR.