On September 4, 2013, EPA published a notice proposing changes to the federal water quality standards (“WQS”), part of its implementation of the Clean Water Act. The proposed changes fall into six categories (summarized in this trifold):
1) Adding clarity regarding when the EPA Administrator has made a determination under Section 303(c)(4)(B) of the Clean Water Act that it is necessary for EPA to promulgate revised water quality standards for a state or tribe, typically in situations where states or tribes fail or are unable to act in a manner consistent with the CWA under a delegated program. EPA has determined this clarity is needed because of situations where Agency memoranda or documents have been interpreted by stakeholders to be official determinations under Section 303(c)(4)(B), potentially triggering failure-to-act litigation later on. EPA’s solution to this issue is to have any such determinations, signed by the EPA Administrator or his or her delegate, distinguish such determinations from normal agency feedback in memoranda or technical documents that have real value in administering the Clean Water Act, and which could otherwise be chilled by fear of litigation for failure to act. This clarity is particularly needed for situations like the recent 60-day notice to EPA regarding fish consumption rates in Washington’s Water Quality Standards sent to EPA Region 10 and which will likely spark litigation soon. [EDIT: Michael Gillett has a nice piece on this 60-day notice with more background over at his blog. I’d recommend reviewing that post for more information.]
2) Clarifying the applicability of the “highest attainable use” in setting designated uses under the CWA. Right now, under the federal WQS, states and tribes can remove unattainable uses when setting designated uses of a waterway. This rule clarifies that, when a designated use is not attainable, the highest attainable use shall be substituted in its place.
3) Clarifies that states and tribes must re-examine their adopted water quality criteria during triennial review if EPA has published new or updated criteria recommendations since the last update.
4) Clarifies the requirements of state/tribal anti-degradation policies.
5) Proposes new regulatory guidelines for variances from water quality standards, including specifically identifying the pollutants and permittees that the variance applies to, the numeric interim requirements that apply, an expiration date not to exceed 10 years, and a discussion of applicability of factors that justify why and for how long a variance is necessary.
6) For the first time, adding an explicit regulation stating when compliance schedules are allowed for water quality-based effluent limitations in NPDES permits. A compliance schedule is a series of prescribed steps in an NPDES permit that a permittee must perform to come into compliance with a water quality-based effluent limitation. Currently, the EPA Administrator decision in In the Matter of Star-Kist Caribe, Inc. (1990) controls the use of compliance schedules in NPDES permits, and only allows them where the state or tribe has authorized them in the state or tribal water quality standards or implementing regulations. There has been a fair amount of permit litigation over the past two decades centered on whether–following Star-Kist Caribe–a compliance schedule in an NPDES permit is authorized by a state’s or a tribe’s WQS. EPA’s hope with this rulemaking is to clarify to states and tribes that compliance schedules need to be authorized by a state or tribal WQSs or implementing regulations, and, to prevent non-compliance with those WQS (and violation of a NPDES permit), the compliance schedule provision needs to be reviewed and approved by EPA as a water quality standard.
What does this mean for Washington? My first reaction is that variances and compliance schedules are likely to become very important tools in Washington because of the potential for increased fish consumption rates to drive toxic water quality criteria down to levels that make compliance very difficult and costly for dischargers. Oregon has already revised its water quality criteria in this manner, and in so doing, relied heavily on these types of implementation tools. I am aware that Ecology is considering folding into the current rulemaking variances and compliance schedules to help with compliance with the stringent new standards. EPA’s parallel rulemaking may help in this process in terms of truing up Washington’s WQS with federal requirements, and making those implementation tools more defensible in terms of the inevitable legal challenges that will follow.
Comments on EPA’s proposed rule are due by December 4th.