WATER QUALITY STANDARDS SEPA DEVELOPMENT AND REVIEW PROCESS MODULE SUMMARY: This module presents an overview of the administrative process for submission of state and Indian tribal water quality standards. It describes the process by which EPA reviews state and Indian tribal adopted water quality standards, the types of approval possible, and Federal promulgation procedures. It presents laws and regulations pertaining to state and tribal submittal of water quality standards, including definitions; administrative procedures, such as conduct of public hearings; and the implications of state and Indian tribal failures to submit standards. REFERENCES AND ADDITIONAL MATERIALS: Clean Water Act: sections 101(a)(2); 106; 303 (a)(3)(C); 303(c)(1); 303(c)(2)(A); 303(c)(3). Water Quality Standards Handbook, Second Edition, August 1994. Chapter 6: Procedures for Review and Revision of Water Quality Standards. Appendix A: Water Quality Standards Regulation: 40 CFR 131.4; 131.5; 131.6; 131.12; 131.13; 131.20; 131.21(c). 40 CFR Part 25 (EPA's Public Participation Regulation). WEB RESOURCES International Association for Public Participation Toolbox http://www.iap2.org/ Improving Communication from the Federal Government to the Public http://www.plainlanguage.gov/ State, Tribal & Territorial Standards: Water Quality Standards Repository (WQS Repository) http://water.epa. gov/ scitech/ swguidance/ standards/wqslibrary/index. cfm Environmental Justice at EPA: http ://www. epa. gov/environmental! ustice/ The National Environmental Justice Advisory Council's Model Plan for Public Participation https://www.epa.gov/sites/production/files/2015-Q2/documents/recommendations-model-guide- pp-2013.pdf Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review EPA Superfund Community Involvement Toolkit https://www.epa.gov/superfund/communitv-involvement-tools-and-resources Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review SUMMARY The process of standards submission begins with making the analyses available to the public and then holding public hearings. If no revisions to water quality standards are made, the state/tribe submits the review results to the EPA Regional Administrator within 30 days after the review is completed. If water quality standards are revised, the submission to EPA is due within 30 days after the state/tribe takes final action and certifies the revised standard. As required by the Clean Water Act, EPA then reviews adopted state/tribal water quality standards to determine whether the standards meet the requirements of the Act. Both EPA regional offices and Headquarters participate in the review. 40 CFR 131.6 lists the minimum requirements for state/tribal water quality standards submissions, including: use designations consistent with the Clean Water Act, adequate methods and analyses to support revisions, criteria sufficient to protect the uses, an antidegradation policy, State Attorney General or Tribal Legal Authority certification that legal and administrative procedures were followed, and other information. EPA may approve, disapprove or issue partial approvals of water quality standards. Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review Handout 1. Certification ATTORNEY GENERAL'S CERTIFICATION Governor (Name) (City) . (State) Dear Governor : I have reviewed the proposed Amendments to the Rules and Regulations Establishing Surface Water Criteria for the State of , as adopted by the (State Agency) on (date) . following a public hearing held by the Department on (date) . The amended rules and regulations were duly adopted pursuant to the authority contained in the (State Act citation). The hearing was held in accordance with the provisions of the (State Act citation). The proposed regulations amend the use classifications and certain criteria assigned to protect those classifications previously approved by the Environmental Protection Agency on (date). These proposed regulations apply to all navigable waters in (State) . On the basis of the above, I have concluded that the Rules and Regulations Establishing Surface Water Criteria for the State of have been promulgated in accordance with State law and that they will be legally enforceable in the State. Signature (Attorney General's name) (STATEMENT MAY BE ADDRESSED TO DEPARTMENT HEAD, GOVERNOR, OR EPA REGIONAL ADMINISTRATOR) Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review Handout 2. The Alaska Rule The "Alaska Rule" §131.21 EPA review and approval of water quality standards. (a) After the State submits its officially adopted revisions, the Regional Administrator shall either: (1) Notify the State within 60 days that the revisions are approved, or (2) Notify the State within 90 days that the revisions are disapproved. Such notification of disapproval shall specify the changes needed to assure compliance with the requirements of the Act and this regulation, and shall explain why the State standard is not in compliance with such requirements. Any new or revised State standard must be accompanied by some type of supporting analysis. (b) The Regional Administrator's approval or disapproval of a State water quality standard shall be based on the requirements of the Act as described in §§131.5 and 131.6, and, with respect to Great Lakes States or Tribes (as defined in 40 CFR 132.2), 40 CFR part 132. (c) How do I determine which water quality standards are applicable for purposes of the Act? You may determine which water quality standards are applicable water quality standards for purposes of the Act from the following table: If— Then— Unless or until— In which case— (1) A State or authorized Tribe has adopted a water quality standard that is effective under State or Tribal law and has been submitted to EPA before May 30, 2000 . . . . . the State or Tribe's water quality standard is the applicable water quality standard for purposes of the Act . . . . . EPA has promulgated a more stringent water quality standard for the State or Tribe that is in effect . . . . . the EPA- promulgated water quality standard is the applicable water quality standard for purposes of the Act until EPA withdraws the Federal water quality standard. (2) A State or authorized Tribe adopts a water quality standard that goes into effect under State or Tribal law on or after May 30, 2000 . . . . . once EPA approves that water quality standard, it becomes the applicable water quality standard for purposes of the Act . . . . . EPA has promulgated a more stringent water quality standard for the State or Tribe that is in effect . . . . . the EPA promulgated water quality standard is the applicable water quality standard for purposes of the Act until EPA withdraws the Federal water quality standard. (d) When do I use the applicable water quality standards identified in paragraph (c) above? Applicable water quality standards for purposes of the Act are the minimum standards which Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review Handout 2. The Alaska Rule must be used when the CWA and regulations implementing the CWA refer to water quality standards, for example, in identifying impaired waters and calculating TMDLs under section 303(d), developing NPDES permit limitations under section 301(b)(1)(C), evaluating proposed discharges of dredged or fill material under section 404, and in issuing certifications under section 401 of the Act. (e) For how long does an applicable water quality standardfor purposes of the Act remain the applicable water quality standardfor purposes of the Act? A State or authorized Tribe's applicable water quality standard for purposes of the Act remains the applicable standard until EPA approves a change, deletion, or addition to that water quality standard, or until EPA promulgates a more stringent water quality standard. (f) How can Ifind out what the applicable standards are for purposes of the Act? In each Regional office, EPA maintains a docket system for the States and authorized Tribes in that Region, available to the public, identifying the applicable water quality standards for purposes of the Act. [48 FR 51405, Nov. 8, 1983, as amended at 60 FR 15387, Mar. 23, 1995; 65 FR 24653, Apr. 27, 2000] Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review Handout 3. Communication Strategy Components Communication Strategy Components This document highlights the key areas to consider when developing a communication strategy. This format is not set in stone. This mock strategy should be used as a guide to the key pieces. Nature of Action: The purpose of this section is to boil down in plain language the specific actions that you are taking. The amount of detail you go into depends on the users 'familiarity with the topic. Make sure the concise action is written at the beginning of the section and not buried in the middle or placed at the end. EPA is proposing to issue draft underground injection control permits for a Class I commercial well to be operated by Solutions Injections (SI) in Smarttown. These permits will allow SI to dispose of both hazardous and non-hazardous industrial wastes in underground wells SI applied for the permits In January 2009. History: This section is important if there has been a long history related to the action or the company. It is helpful to bullet out historical pieces as opposed to writing a multi paragraphed section of background. This helps both the writer and the reader pull out the most important historical actions and dates. In 2008 SI won a legal fight to operate a deep well to receive hazardous waste from various industries. In 2009 the company hired former mayor of Smarttown to serve as project attorney. The project was strongly opposed by local elected officials and residents. Key Messages: This section is typically one of the most difficult to write, but is also the most helpful. We spend hours writing technical and legal information, but what we want here is boiled down concise messages. These are the sound bites that politicians and people in the media strive to write. What we want what are we doing? Why are we doing it? What do we want them to do? EPA recognizes that this project is not what the community wants. SI has met the scientific and legal standards/tests for the permit. This permit has built in safeguards. We want your comments on the permit. Interested Parties: The following are just a sample ofpossible targeted audience members. Give enough thought to this to make sure you connect with all of the people you need to connect with. Knowing the history of the site is important for this particularly. If the site is next to a Senior Citizen home, then you have a particular audience you need to contact. Local officials (mayors, townships) The governor and state agencies Tribal representatives Senators and representatives State Agencies Media Residents Schools Public Health Departments Federal Agencies Businesses Permit applicant Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review Handout 3. Communication Strategy Components Anticipated Reactions: Local: Local residents and officials are likely to be very much opposed to the permit because of their long history of opposition to SI. Many locals distrust the Underground Injection technology, have little faith in the no-migration demonstration, and consider the 10,000-year model unpersuasive. Some say that the wastes could wind up contaminating Lake Notsosmart (about 10 miles away). Region 5 expects several hundred people to attend the public hearing and express their opposition. State: It is unclear how the State will respond to the EPA's proposed permit renewal. But since the Governor recently stated in the press "Wells in Smartstown? Over my dead body!" We are pretty confident the state will react negatively. Press: It is helpful to have an idea of what the media is saying about your project, if anything. A simple Google news search should do the trick. It is important to decide up front who will answer media inquiries and to make sure they are prepared to answer questions list that person in this section. The July 25th issue of The Smartstown News ran an article titled "Solutions Injections is no Solution for Smartstown!" We expect the draft permits will be a big story in the Smartstown area. Possible negative reactions of the community and its elected representatives could spark national media interest. Region 5 OPA will answer all media inquiries. Communication tools, activities and timeline How many meetings will you have? Where will they be? What are the legally required actions? When will you mail any communication pieces? It is helpful to put these in an ordered list with dates and sometimes a responsible party listed next to them. In addition, it is important to remember that there may be a courtesy order in which your audience needs to be notified. Specific tools are bolded below. Write a communication strategy Post the permit application along with an introductory paragraph on the Web page. Include an option for the reader to be added to a mailing list. Decide if social media will be used. (Facebook, Twitter) Develop mailing list. Prepare press release. Prepare fact sheet. Prepare Qs and As, this is helpful internally and externally. Send all relevant information to community repositories. Mail (snail and e-mail) fact sheet. Make courtesy phone calls to interested parties. Place ad (public notice) in local paper. Have it run only after the above activities are complete. Announce public comment period through press release and an updated web page with fact sheet, online public comment opportunity and hearing information. Conduct meetings. Post all comments online for the public to view (sometimes not necessary). Write Response to Comments. Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review Handout 4. CWA 303(c)(3) FAQ EPA Publication No. 820F12017 WHAT IS A NEW OR REVISED WATER QUALITY STANDARD UNDER CWA 303(C)(3)? FREQUENTLY ASKED QUESTIONS October 2012 DISCLAIMER These Frequently Asked Questions (FAQs) do not impose legally binding requirements on EPA, states, or the regulated community, nor do they confer legal rights or impose legal obligations upon any member of the public. The CWA provisions and EPA regulations described in this document contain legally binding requirements. These FAQs do not constitute a regulation, nor do they change or substitute for any CWA provision or EPA regulations. The general description provided here may not apply to a particular situation based upon the circumstances. Interested parties are free to raise questions and objections about the substance of these FAQs and the appropriateness of their application to a particular situation. EPA retains the discretion to adopt approaches on a case-by-case basis that differ from those described in these FAQs where appropriate. These FAQs are a living document and may be revised periodically without public notice. EPA welcomes public input on these FAQs at any time. 1. Why is EPA issuing these FAQs? Determining which provisions constitute new or revised water quality standards (WQS) that EPA has the authority and duty to approve or disapprove under the Clean Water Act (CWA) section 303(c)(3) has increasingly become an issue as state and tribal1 water programs are becoming more integrated with implementation policies and processes. To date, EPA has evaluated each situation on a case-by-case basis. These FAQs consolidate EPA's plain language interpretation (informed by the CWA, EPA's implementing regulations at 40 CFR part 131, and relevant case law) of what constitutes a new or revised WQS that the Agency has the CWA section 303(c)(3) authority and duty to approve or disapprove. 2. How is evaluating whether a provision is a new or revised WQS different from determining whether a state or tribe's new or revised WQS are approvable? There are two decisions EPA must make before approving or disapproving a state or tribe's new or revised WQS. First, EPA must determine whether the provision constitutes a new or revised WQS that EPA has the CWA section 303(c)(3) authority and duty to approve or disapprove. If it does, EPA must then determine whether the provision is approvable. This FAQ document only addresses EPA's position with regard to the first decision2 3. What is the basis for the information in these FAQs? EPA's understanding of what constitutes a new or revised WQS under CWA section 303(c)(3) derives from the CWA itself, EPA's implementing regulations, and case law. The CWA requires EPA to approve or disapprove new or revised WQS and specifies that state WQS must consist of designated uses 1 "Tribal" and "tribes" refers to tribes authorized for treatment in the same manner as a state (TAS) under section 518(e) of the Clean Water Act (CWA) for purposes of CWA section 303(c) water quality standards (WQS). 2 These FAQs in no way affect EPA's authority to approve or disapprove a state or tribe's continuing planning process (CPP) under CWA 303(e). Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review Handout 4. CWA 303(c)(3) FAQ EPA Publication No. 820F12017 and criteria to protect such uses. In the 1987 amendments to the CWA, Congress recognized that antidegradation is a part of water quality standards (see section 303(d)(4)(B)). EPA's regulation at 40 CFR § 131,3(i) provides that WQS "are provisions of State or Federal law" that consist of designated uses and water quality criteria. EPA's regulations at § 131.5 provide specificity as to what EPA's review under section 303(c) of the Act involves, at § 131.6 the minimum requirements for WQS submissions, and at § 131.13 that general policies states choose to include in their WQS are subject to EPA review and approval. 40 CFR §§131.5(a)(5), 131.6(d), and 131.12 further reinforce that antidegradation requirements are WQS. In addition, case law relating to what constitutes a new or revised WQS has been established in (1) the Supreme Court's 1994 decision in PUD No. 1 of Jefferson County v. Washington Dept of Ecology, 511 U.S.700 (1994), which acknowledged that antidegradation requirements are part of WQS, and (2) the U.S. Court of Appeals for the Eleventh Circuit's 2004 decision, Florida Public Interest Research Group Citizen Lobby, Inc., et al. v. EPA, 386 F.3d 1070 (11th Cir. 2004), and subsequent EPA action on the Florida Impaired Waters Rule (IWR). The Court's decision in the Florida IWR case established that EPA has a mandatory duty to approve or disapprove a new or revised WQS even if the state did not submit such new or revised WQS to EPA for review. Thus, EPA's position is that its authority and duty to evaluate whether a provision is a new or revised WQS is not dependent upon whether the provision was submitted to EPA for review. In addition, in its decision following a 2004 remand in the IWR litigation, EPA determined that specific water quality criteria provisions in the IWR were new or revised WQS because they were legally binding provisions that define, change, or establish magnitude, duration or frequency of water quality criteria. EPA's current practice is to consider all the salient points from the CWA, regulations, and case law when evaluating whether a provision is a new or revised WQS. 4. What does EPA consider when evaluating whether a specific provision constitutes a new or revised WQS? EPA considers four questions when evaluating whether a provision constitutes a new or revised WQS. If ALL four questions are answered "yes," then the provision would likely constitute a new or revised WQS that EPA has the authority and duty to approve or disapprove under CWA section 303(c)(3). If any of the four questions are answered "no," then the provision would likely not be a new or revised WQS that EPA has the authority and duty to approve or disapprove under CWA section 303(c)(3). 1. Is it a legally binding provision adopted or established pursuant to state or tribal law? This consideration stems from the use of the terms "adopt," "law," "regulations", and "promulgate" in CWA section 303(a)-(c), and from EPA's regulations at 40 CFR 131,3(i), which specify that WQS "are provisions of state or federal law."WQS "are provisions of state or federal law."WQS "are provisions of state or federal law."3 WQS "are provisions of state or federal law."WQS "are provisions of state or federal law."4 AND 3 These FAQs deal with what constitutes new or revised WQS adopted by states or authorized tribes. It does not discuss whether or how provisions of federal law may constitute WQS. If EPA promulgates federal WQS for state or tribal waters, EPA adheres to the same four considerations in promulgating such new or revised WQS. 4 A provision in a document incorporated by reference must meet all 4 considerations to be a new or revised WQS. Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review Handout 4. CWA 303(c)(3) FAQ EPA Publication No. 820F12017 2. Does the provision address designated uses, water quality criteria (narrative or numeric) to protect designated uses, and/or antidegradation requirements for waters of the United States? The CWA, EPA's implementing regulation, and case law have broadly established three core components of WQS - designated uses, water quality criteria, and antidegradation requirements. Therefore, this consideration explicitly specifies that for a provision to be a WQS, it must include or address at least one of these three core components. AND 3. Does the provision express or establish the desired condition (e.g.. uses, criteria) or instream level of protection (e.g.. antidegradation requirements) for waters of the United States immediately or mandate how it will be expressed or established for such waters in the future? This consideration recognizes that if a provision meets the above two considerations and expresses the desired condition or level of protection for waters of the United States, it may be a new or revised WQS that EPA has the authority and duty to approve or disapprove under CWA section 303(c)(3), regardless of whether that expression applies immediately or will be applied in the future. EPA action on provisions that may not apply immediately will ensure that EPA is able to provide input as early as possible in the state's or tribe's WQS development process, thus enabling the states, tribes, and EPA to carry out their functions under the CWA in the most efficient, expedient manner possible. AND 4. Does the provision establish a new WQS or revise an existing WQS? While a provision may meet the first three considerations, the EPA's authority and duty to review and approve or disapprove such provisions under section 303(c)(3) are limited to those WQS that are new or revised. A provision that establishes a new5 WQS or has the effect of changing an existing WQS would meet this consideration. In contrast, a provision that simply implements a WQS without revising it would not constitute a new or revised standard. 5. Does EPA consider general policies under 40 CFR § 131.13 to be WQS? EPA's regulation at 40 CFR § 131.13 provides that states and tribes may, at their discretion, "include in their state standards, policies generally affecting their application and implementation, such as mixing zones, low flows and variances." 40 CFR § 131.13 also states that "Such policies are subject to EPA review and approval." EPA has the CWA section 303(c)(3) authority and duty to approve or disapprove general policies such as mixing zones as long as those policies themselves constitute new or revised WQS based on the four considerations above. 6. Does EPA have the authority and duty to approve or disapprove non-substantive revisions to WQS? EPA considers non-substantive edits to existing WQS to constitute new or revised WQS that EPA has the authority and duty to approve or disapprove under CWA section 303(c)(3). While such revisions do not substantively change the meaning or intent of the existing WQS, EPA believes that it is reasonable to treat such non-substantive changes in this manner to ensure public transparency as to which provisions are effective for purposes of the CWA. EPA notes that the scope of its action in reviewing and approving 5 A provision that EPA has never approved as a WQS would be considered "new." It must also meet the other three considerations to be a new or revised WQS. Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- WQS Development and Review Handout 4. CWA 303(c)(3) FAQ EPA Publication No. 820F12017 or disapproving such non-substantive changes would extend only as far as the actual non-substantive changes themselves. In other words, EPA's action on non-substantive changes to previously approved WQS would not constitute an action on the underlying previously approved WQS. Any challenge to EPA's prior approval of the underlying WQS would be subject to any applicable statute of limitations and prior judicial decisions. 7. Does EPA have any CWA authority over provisions that do not constitute new or revised WQS? In cases where the Agency believes that an existing state or tribal WQS (i.e., a provision that meets the first three considerations but is not new or revised) is inconsistent with the CWA, or that the existing WQS lack what is necessary to be consistent with the CWA, the Administrator may determine "that a revised or new standard is necessary to meet the requirements" of the CWA under CWA section 303(c)(4)(B). An Administrator's determination triggers a duty on the part of EPA to propose and promulgate such WQS unless the state or tribe adopts and EPA approves WQS addressing EPA's determination. In addition, the CWA and its regulations grant EPA authority over state and tribal implementation of WQS through its oversight or implementation of the NPDES and 303(d)/TMDL programs. For example, revisions to NPDES state/tribal programs are subject to EPA approval under 40 C.F.R. § 123.62, and EPA may object to state/tribal draft or proposed NPDES permits for point source discharges if the limits in those permits would not achieve applicable WQS. Similarly, EPA may add waters to a state's or tribe's list of water quality-limited waters if the state/tribe did not assess waters in a manner consistent with the applicable WQS. State and tribal law may include provisions that do not meet the four considerations described in these FAQs, such as those guiding implementation of their CWA programs (e.g., NPDES or CWA section 303(d) assessment provisions). If such provisions do not meet the four considerations, and therefore EPA does not approve or disapprove them under Section 303(c)(3), the status of such provisions would be determined under the applicable requirements of the other CWA programs the provisions are intended to implement. Water Quality Standards Academy WQS Development and Review Updated 4-24-2017 ------- |