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EPA Administrator Gina McCarthy signed the final Water Quality Standards Rule August 5 and NACWA conducted a detailed review of the rule to identify changes made and whether the Association’s January 2014 comments  were addressed.

In general, the final rule tracks closely with the proposal, with mostly minor changes to further clarify the Agency’s intent. A number of more significant changes, however, were made by EPA to key sections based on comments it received. While NACWA’s comments on the proposal recommended that EPA not proceed with the regulation and instead address any issues through guidance, a number of positive changes were made in the final rule.

This Advocacy Alert outlines the changes EPA made to the six areas it proposed to address: 1) Administrator’s Determination; 2) Highest Attainable Use; 3) Triennial Reviews; 4) Anti-Degradation; 5) Variances; and, 6) Compliance Schedules.

Overview of the Final Water Quality Standards Rule

The final rule only directly impacts states and their development and implementation of water quality standards programs. However, several elements of the rule will ultimately have impacts for permittees. This is why NACWA has been following EPA’s efforts to propose and finalize these revisions since the late 1990s, when EPA issued an Advanced Notice of Proposed Rulemaking (ANPRM) exploring a long list of potential changes to the WQS program. EPA narrowed that list to the six main areas it proposed to modify in 2013 (78 Fed. Reg. 54518; September 4, 2013): 1) Administrator’s Determination; 2) Highest Attainable Use; 3) Triennial Reviews; 4) Anti-Degradation; 5) Variances; and, 6) Compliance Schedules.

The final rule largely accomplishes EPA’s stated objectives in all six areas, but key changes were made in response to comments. While NACWA’s comments on the proposal recommended that EPA address these issues as needed through guidance rather than through rulemaking, the Agency did make positive changes to the provisions on highest attainable use, triennial review, and variances. The additional clarity on the variance provisions in particular, though limiting some past flexibility, will hopefully encourage more states to use this tool, a positive outcome for permittees. The significance of the rule’s impact could depend on what state you are in and how your state may have already been implementing some of these changes. For example, some states were already implementing their anti-degradation provisions consistent with the rule.

EPA’s website provides a redline  comparison of the proposed and final regulatory language for those interested in seeing the actual revisions, but below is a section by section summary of how things changed from proposal to final.

Administrator’s Determination – EPA sought to clarify what constituted an official ‘Administrator’s Determination’ to avoid claims, like those made in Florida, that guidance or some other EPA document could be construed as an official determination. Such a determination is made when a new or revised water quality standard is necessary to meet the requirements of the Clean Water Act. Stakeholders in Florida used a decade-old statement from an EPA guidance document to claim that such a determination had been made for nutrients in that state. Clarification of what constitutes a determination is important for identifying EPA’s subsequent legal obligations and opportunities to challenge EPA action.

• NACWA supported the proposed change and EPA made only minor, clarifying revisions in the final rule.

Designated Uses/Highest Attainable Use – EPA proposed changes to clarify that when a designated use is determined to be unattainable, the state should ensure that it replaces the use with the “highest attainable use” (HAU). EPA also sought to clarify when a use attainability analysis (UAA) is and is not required for a 101(a)(2) use. The agency is hoping that the HAU requirement will limit the number of instances where states remove a 101(a)(2) use altogether and instead encourage states to develop subcategories or modified 101(a)(2) uses.

• NACWA expressed concern with the wording of the proposed changes, highlighting that some states felt that the changes would limit their flexibility or would mandate additional controls to make incremental progress toward 101(a)(2), fishable/swimmable, uses. In the final rule, EPA retains the HAU provision, making mostly minor revisions to clarify its intent.
• In addition, new language was added to the definition of “highest attainable use” indicating that there is no required highest attainable use where the state has demonstrated that the relevant 101(a)(2) use and any sub-categories are not attainable. This is helpful clarification. While EPA expects such situations to be “rare”, it added the language to clarify that it was a possible outcome.
• NACWA’s comments on enhancing the use of UAAs and revisiting flawed existing uses were not addressed.

Triennial Reviews – EPA proposed to outline in more detail what states were required to do during their triennial reviews, including conduct public hearings.

• NACWA commented that EPA went too far in proposing to require states to re-examine their criteria in light of any new or revised 304(a) criteria recommendations that EPA may have published. In the final rule, the language stating that states “shall re-examine” any criteria for which EPA has published new or revised recommendations has been struck from the rule. Instead, EPA requires states to explain their rationale if they choose not to update or revise their standards based on these new or updated federal recommendations. This is a positive change. While the requirement to review is still implicit, EPA focuses instead on requiring that the public and EPA understand the state’s reasoning for not updating.
• The preamble to the rule also clarifies that states have the authority to prioritize updates to their standards and chose not to update particular criterion, as long as they provide an explanation. EPA stresses that the state must still seek comment on all standards, even if they do not plan to update them.

Anti-degradation – EPA’s proposed changes were intended to require states to follow a more structured process when making anti-degradation/high-quality water decisions to increase transparency and opportunities for public comment.

• None of NACWA’s comments were satisfactorily addressed by EPA.
• Though EPA made a few positive wording changes to remove words like ‘must ensure’ from the discussion of anti-degradation implementation provisions and did not require EPA approval of state implementation procedures, EPA made two significant organizational changes from the proposal. In the proposal, EPA included language about state implementation and use of the parameter by parameter or waterbody by waterbody approaches for making high quality water determinations as well as the need to conduct an alternatives analysis. In the final rule, language addressing these elements was moved from the paragraph on implementation to the anti-degradation policy paragraph in order to, in EPA’s words, ensure consistency with federal regulations and increase accountability and transparency. So while state implementation procedures remain not subject to EPA review, including these elements as components of the state policy will subject them to EPA review and approval.
• EPA also retained language limiting the use of the waterbody by waterbody approach for reviewing high quality waters to restrict states from removing a waterbody from high quality status simply because it does not meet all of the 101(a)(2) uses.
• The main positive highlight from the rule on anti-degradation was the discussion in the preamble on the use of de minimis exclusions that many states have developed. EPA confirms that such exclusions, where consistent with the CWA and the state’s anti-degradation policies, are allowed.

Variances – EPA proposed to outline what states must document and submit to EPA for an approved variance.

• This section of the final rule was significantly revised. Language indicating that variances should expire no later than 10 years after state adoption has been removed, which is positive. But the provisions for renewal of variances have been struck from the final rule as well. Instead of limiting the length of the variance and allowing for renewals, the rule allows for more open-ended variances, but with requirements for revisiting variances at regular intervals and loss of the variance if it is not revisited.
• NACWA believes the new, final language on variances, though potentially limiting some past flexibility the states may have had, is a positive indication that EPA is committed to ensuring this important tool is actually used.
• The final rule clarifies that the new language on variances does not apply to waters in the Great Lakes basin, which are governed by separate variance provisions outlined in the 1995 Great Lakes Water Quality Guidance.

Compliance Schedules – EPA proposed to require states that intend to authorize the use of compliance schedules for water quality based effluent limits (WQBELs) in Clean Water Act permits to first adopt permit compliance schedule authorizing provisions. The proposal required that such provisions be consistent with the Clean Water Act and be reviewed and approved by EPA as a water quality standard.

• NACWA commented that it did not think that EPA needed to add a specific requirement to the WQS regulations to accomplish this and that EPA would have the opportunity to review any compliance schedules that were used in a particular permit proceeding. EPA finalized the proposed language with some clarifying changes.
• EPA struck language clarifying that individual compliance schedules were not water quality standards themselves, but the preamble does reiterate that individual compliance schedules are not water quality standards and not subject to EPA approval.

Water Quality Trading – While EPA did not seek comment on it, NACWA requested that EPA add new language in 131.13 to expressly recognize that water quality trading programs can be used to meet water quality based effluent limitations in appropriate circumstances. EPA did not address this comment in the final rule language or preamble.

The pre-publication version of the final Water Quality Standards Rule was made available immediately after the rule was signed. The rule will be formally published in the Federal Register in the coming weeks.