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August 23, 2010

EPA announced in a July 30 Federal Register notice its plans to initiate a rulemaking to make a set of targeted changes to the Agency’s water quality standards (WQS) regulation.  The Agency began work identifying issues for the rulemaking last year, announcing that it was planning to propose “clarifications” to the regulation in order to improve its effectiveness in helping restore and maintain the nation’s waters.  In the July 30 notice, EPA outlines several proposed changes to its rules on antidegradation, designated uses, variances and other elements of the water quality standards regulation and announces two upcoming listening sessions to collect input on the changes.

NACWA is reviewing the notice and is soliciting input from the membership on EPA’s proposed changes.  Please send any comments to This e-mail address is being protected from spambots. You need JavaScript enabled to view it by August 23, 2010.

EPA Listening Sessions

EPA will hold two public listening sessions to seek input on the proposed regulatory changes.  Both sessions will be audio teleconferences and will take place on Tuesday, August 24 and Thursday, August 26, 2010 from 1:00-2:30 pm Eastern.  As described in the notice, the sessions will provide a review of EPA’s current water quality standards regulation and a summary of the clarifications that EPA is considering.  As time permits, EPA will allow questions and brief oral comments during the listening sessions.  NACWA will participate in the listening sessions and encourages members interested in participating to register in advance on EPA’s website.

Summary of Proposed Changes

EPA’s proposal considers change on six elements of the WQS regulation.  Specifically, EPA is considering the following regulatory changes:

1. Antidegradation – requiring that State antidegradation implementation methods meet specific minimum requirements and that those procedures be adopted into state WQS and be subject to EPA approval.
   
   
2. Administrator’s “Determination” – clarifying that an EPA Administrator’s determination that revised or new standards need to be developed must be signed by the Administrator and must include a statement that the document constitutes such a determination under the relevant statutory provisions of the Clean Water Act.
   
   
3. Designated Uses – clarifying that “fishable, swimmable” uses are presumed attainable unless otherwise demonstrated, that those uses must be designated unless the state conducts a use attainability analysis (UAA) to support a lesser use, and that the lesser use designated through a UAA must be the highest attainable use that is closest to the “fishable, swimmable” goal.
   
   
4. Variances – establishing requirements for variances “to ensure proper use of variances and reduce the possibility of inappropriate use”.
   
   
5. Triennial Review – clarifying that states must consider public comments in determining the scope of each triennial review, and requiring that states evaluate whether their existing water quality criteria continue to be protective of designated uses.
   
   
6. Revisions to Reflect Recent Court Decisions – making three clarifications based on recent court rulings.  The most notable change relates to compliance schedules – specifying that authorizing provisions for compliance schedules must be adopted as part of a state’s WQS and subject to EPA review and approval.
   
   

EPA expects to issue a proposed rule on the planned WQS changes during the summer of 2011.  As you may recall, EPA raised similar issues in 1998, when it issued an Advance Notice of Proposed Rulemaking (ANPRM) on a long list of WQS issues.  The Agency eventually scaled back and dropped that measure altogether.

Again, NACWA is keenly aware of the broad impacts such changes could have on its public clean water agency members and is reviewing the notice closely and soliciting input from the membership on EPA’s proposed changes.  Please send any comments to This e-mail address is being protected from spambots. You need JavaScript enabled to view it by August 23, 2010.  NACWA will continue to track these efforts and provide members with updates as they occur.