On September 4, 2013, EPA published a proposed rule to modify its Water Quality Standards program, The proposed rule addresses six key topics that have been the subject of litigation and past EPA guidance: (1) the Administrator’s authority to impose federal water quality standards; (2) how designated uses are determined; (3) the triennial review of state water quality standards; (4) antidegradation; (5) water quality standard variances; and (6) the establishment of compliance schedules. The proposed changes to EPA’s antidegradation policy in particular will result in more water bodies being classified as “high quality” waters, making it more difficult for states to allow for changes in pollutant loading in such water bodies.
EPA’s antidegradation revisions propose to tighten state antidegradation policies in three ways. First, EPA has proposed revisions that will require water quality classifications to be made on a use-by-use basis, as opposed to a water body-by-water body basis. The likely result will be more waters classified as “high quality” waters subject to stricter antidegradation review since a waterbody can now be classified as “high quality” for some uses even when it has not fully attained all applicable use-based standards. Some jurisdictions already implement antidegradation review in this manner, but for entities in those jurisdictions that do not, sources could find themselves facing a more rigid and onerous process in justifying a change in discharge limits.
Second, EPA is proposing to require an alternatives analysis before a state allows added pollutant loading to a “high quality” water body. Under 40 C.F.R. § 131.12, states can permit additional discharges to a high quality water body if it determines “that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located.” Traditionally, states have been allowed to determine how best to make these findings, but EPA’s proposed rule would mandate a specific framework, including an alternatives analysis “that evaluates a range of non-degrading and minimally degrading practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed activity” and a requirement that the state adopt any “practicable alternatives” the state can identify.
Finally, and perhaps most significantly, EPA is proposing to enhance its oversight of state antidegradation policies by, at a minimum, requiring states to develop “antidegradation implementation methods” that will be subject to EPA review. But, EPA has stated that is considering going further to require that these implementation methods be expressed as water quality standards themselves, which would enable EPA to impose its own determinations of proper management of high quality waters on state programs.
Antidegradation is a laudable component of the Clean Water Act, but its overuse can result in the ossification of outdated permit terms. It can also make it more difficult for state agencies to adapt their regulations to evolving knowledge about the complex chemical and biological forces at play in evaluating water body health. EPA’s current proposal, if adopted, could result in a significant new hurdle for both state authorities and permittees seeking to alter existing water quality-based discharge limits or develop permits for new sources. The deadline for submitting comments on the proposed rule is December 3, 2013.