WQS Regulatory Revision  -  Federalism Consultation
September 2, 2010

Attendees
EPA Attendees:
Evelyn Washington
Shari Barash 
Christina Christensen
Fred Leutner
Chelsea Morris
Andrew Hanson

Outside Attendees:
See attached.

Notetaker: 
Clair Meehan -- Tetra Tech

Questions and Answers During Presentation

General Clarifications
Question: Will options selection occur before comments are due?
Washington: Yes -- options selection will occur in early October. Our options selection will consider any feedback we have received by that time.

Question: What kinds of things come up over and over?
Christensen: Issues related to antidegradation. The specifics are different, but we think that key changes to the regulation will make our handling of these situations more efficient. We also get many questions about the triennial review process. 
Barash: "What is a standard" in a WQS submission -- this came up in Florida's IWR.

Question: When do you need comments by?
Barash: We would like to get key messages as soon as possible. There is no formal end to this public consultation process (it is not an official comment period). We have various methods for communicating with states, including WQSMA (some members are also ASIWPCA members), the WEF Forum, and the state listening sessions that were announced in the Federal Register. 

Question: You have been meeting with states, but what about elected officials? Have any of the listening sessions included state and local elected officials? 
Barash: This listening session is intended to serve that purpose. We also had listening sessions that were opened to the public. We did not have anything specific for elected officials.
Question: You say you have been communicating with states for 2 years, yet the last slide indicates that you want input tomorrow.
Barash: We hope to get input on this call today and receive more detailed comments in writing.  The invitation letter indicates that the period is 45 days from today. But that is almost the time of options selection. 

Administrator's Determination
Question (after slides about Administrator's determination): Do you anticipate that the Administrator would have the option to issue a national water quality standard rather than an individual state standard?
Leutner: The typical practice is that we deal with individual states. We have only had a national standard when we have looked across all states and found that many did not have appropriate criteria for toxic pollutants. We issued criteria for those 14 states. That is probably our broadest case. 
Washington: We are not trying to go that far. We are just trying to identify the specific communications that would be considered a determination.

Antidegradation
Question: On antidegrdation -- the current regs say that states have to identify implementation methods and you said that some have not. Is it not easier to enforce this rather than requiring a whole new EPA approval process? 
Christensen: The problem with our current reg is that "identify" is a vague term. Our interpretation is that states must adopt implementation methods. We want to make it clear in the regs and say that states have to "adopt."
Barash: We have heard comments that we are going too far. There are a number of states that have identified methods that are inadequate -- they may not really support the policy. We need to make sure that states are implementing the policy. 
Question: In specifying minimum elements, will you look at how this impacts state flexibility? Will it reduce flexibility?
Barash: It may in some cases. In others it will increase flexibility. We are trying to make things more transparent for the public. 
Question: Any list I have seen from EPA does not include flexibility. You need to look at what the CWA says and try to keep things flexible.
Question: On a related issue, one example of where flexibility may be an issue is in how states address public comment. Each state has its own process set forth in its own regulation. If you set up minimum elements, there will be a cost associated with that. This will impact states and localities.
Christensen: We heard similar comments in the earlier listening sessions. We are developing an economic analysis of the impacts of this rule. Please provide specific comments on cost. We also want to hear any ideas of what you would like to see in the antideg minimum elements.

Highest Attainable Use
Question: How often is the provision about highest attainable use applied? 
Christensen: We have some states (2-3) that have many unclassified waters. How can we get those states to go out and designate those unclassified waters as 101(a)(2) uses or do a UAA to show why those uses cannot be attained?
Barash: Some states have no subcategories of use -- they either designated aquatic life use or they do not -- and they remove the use if there is the use is not fully met. However, they might not look at what is attainable. In the same analysis showing what is not attainable, a state should show what is attainable. It should not be "all or nothing." 
Question: For states with unclassified waters, have they done the analyses and found that the uses cannot be attained or have they simply not done the analyses?
Barash: Under the rebuttable presumption idea, some states have waters with no uses -- and have not done a UAA. Some states have gone through the process.
Question: How many instances do you have where a state has not gone thru the process? What about the case where there is a waterbody and the state has found that the waterbody cannot be used for aquatic life and that is as clean as they can get it? If this is done through a public process, with appropriate input, what is the problem? 
Leutner: Sometimes a UAA has been done, and the state has removed the aquatic life use but has not replaced it with any more specific aquatic life use. For instance, the water cannot support trout and the state removes the entire aquatic life use, even if the water could support something more limited (e.g., a warmwater fishery). This is a case when states could consider the highest attainable use. We encourage the use of bioassessment to determine more specific uses (e.g., examine what species are there?)
Question: So a state is implementing all or nothing?
Christensen: We are not supporting a hierarchy or ranking. We are saying that there are gradations within aquatic life. We want to protect what is there.
Barash: Even if setting up gradations of uses state-wide is too difficult, states can identify what is attainable at specific sites. We have heard that EPA needs to define this concept better in the proposal. 
Question: The idea of the highest use attainable makes sense to a point. How would you deal with downstream uses? It still imposes a requirement.
Question: You keep mentioning "a few states" as the basis for making this change. Is there any accumulation of the data? If it is just a few states or agencies, why are you changing standards that apply to everyone to get at a problem that is more limited? 
Barash: For standards that are submitted, we are already applying these concepts. But, the ideas are not well explained. We have been approving/disapproving standards based on current practice, but EPA wants to codify things that are current practice.
Question: That should be part of the explanation.
Question: Some states are already being creative and should not be subject to additional requirements. 
Barash: In this comment period, where you think a lot of states are already doing these things (or close), we want to hear about that. Please provide suggestions for how we can change our approach to consider these.

Variances
Question: Are variances commonly used?
Leutner: There are several. Some states do not want to use them because they come with a negative connotation. Putting this in regulation might make it easier for some states to use this tool. 
Question: It is worthwhile to clarify variances.  But it should be based on current practices. The expiration date is ok -- legally it is well put. But you do have to look at the current knowledge, how it is used, and not be overly stringent on how it is used. This is a good one.
Barash: It would be helpful to get input on what a reasonable timeframe (e.g., maximum) would be. 
Question: This is one area where you want to be flexible. You should get input during the comment period.
Barash: We will be requesting comment on this type of question. Variances are a temporary change to the use that ultimately changes the criteria. A lot of states do not want to give up on a use but want to make a temporary change or give a discharger some relief. There are expectations for progress and things like that.
Question: There are some examples where you need an extended time (e.g., mercury).

Triennial Reviews
Question: Related to scope of triennial reviews -- what if the public says that the state needs to do a full scope review? What if a state only has enough money for a targeted review? 
Christensen: We might say that states need to take comment and consider those comments when it makes a decision about what to cover. It is ok if a state wants to be targeted -- there may be a good reason to look at a particular subset of waters. But states should hear what people have to say. 
Question: Will you determine what the comment period should be, or will that be left up to the state? You need to be clear about what states need to do in response to the public comment. 
Question: At what point do states have to do a full review?

Questions and Answers Following Conclusion of Presentation

Question: There are some good ideas. However, it looks like this is mostly about convenience for EPA. Areas D, E, and F make a lot of sense. Areas A, B, and C are stumbling blocks. There is an expectation that you have narrowed down target areas to a small group of people. EPA did not identify that areas have less administrative burden, are less costly, or are more flexibility. I encourage you to think that way. There will be more unfunded mandates. Cities cannot afford more burden. 
Question: We are dealing with solid wastes, air, and other issues. Many mandates are being imposed, and we are cash-strapped. We constantly come up with issues that are not considered in cost estimates. EPA only considers what it will cost states as a regulated entity rather than what it will cost as an implementing partner. 
Leutner: We are required to look at burden to co-regulators.
Question: That is not necessarily being done.
Question: For 35 years we have been submitting comments. We are saying rather than aggressively expanding priorities, we want to look back and see how we can improve what has already been expanded. Even without these rules, we are looking at $3-5 trillion in the next few years at the local level. Part is increased population and development (which are our responsibility) -- but part is related to mandates. There has to be a way to partner better.
Barash: If you think there is a list of areas where EPA can make changes in the burden and still achieve the same goals, we want to hear that. We have been trying to work with counterparts in other EPA offices. 
Question: In certain states, any changes have to go through the state legislative process.
Barash: We want to look for things that can be reviewed/approved as WQS without being part of state regs. We want to see where there is flexibility.
Washington: We are struggling to address situations where people need more definitions. 
Question: You also talked about records for public comment. If you are talking about a new method for us to communicate, that is a huge cost (e.g., if some new technology is required).
Question: Some entities feel like they have not had an opportunity to discuss this with EPA.
Barash: There might be other opportunities. 
Comment from Moderator: We welcome comments beyond October 11. We understand that many of you have a formal process before we can submit formal comments. While October 11 is ideal, it is a soft date. If you have extensive comments in 75 days, we will still pay attention to your comments. October 11 is just the date for options selection. The rule will not be until next year. Perhaps this group might want to meet again in early 2011 to get more information. 

Question: Is EPA willing to share the list of original 40 ideas?
Barash: Yes.




