         Drivers and Benefits of WQS Reg Revision Proposal  - May 2013

Designated Uses
   1.    Highest Attainable Use
   Driver:  To eliminate situations where a state demonstrates that a designated use is not attainable but does not replace that use with another.  For example, we wish to avoid situations where a state adequately demonstrates that a warm water aquatic life use is not attainable based on one of the six factors, but has neither adopted another use to protect lesser aquatic life expectations nor demonstrated that no aquatic life use is attainable.  Such a situation leads to an inefficient and ineffective transaction as EPA cannot approve the revision without one of the two state actions.
   Benefits:
   *          Refocuses the public debate from "whether to allow a downgrade" to "what is achievable."  Gives the public an avenue to help develop constructive solutions rather than simply opposing "downgrades."  Allows states to seek public input on the use change and its replacement concurrently.   
   *          Having expectations clearly stated in the regulation will reduce the time and resources spent by states and EPA resolving the issue after the UAA has already gone through the public process and formally submitted to EPA.  
   *          When EPA meets its mandatory review timeframes, it is less vulnerable to mandatory duty lawsuits.  Consequently, EPA will be able to staff better communication/coordination with state partners, as opposed to staffing mandatory duty litigation.
         
   2.    Clarifying when a UAA is or is not required  
   Driver:  The current uses regulations have led to a significant amount of confusion because 40 CFR  131.10(g), (j), and (k) are not connected and, if read independently, could lead to an interpretation regarding when a UAA is required that is contrary to the interpretation given when the sections are read together.  The revisions will ensure that all three provisions are interlinked such that there is only one common interpretation.  Further, the revisions will provide for a more explicit connection between these sections and EPA's interpretation of section 101(a)(2) of the CWA.
   Benefits:
      * Will make clear to States, tribes, and the public when a UAA is required and when it is not.
      * Will increase consistency in EPA Regional responses regarding which use changes must be justified using one of the 131.10(g) "attainability factors."
      * Will provide states/tribes additional flexibility (grounded in the CWA) for removing/refining uses not specified in CWA section 101(a)(2) (e.g., public water supply, agricultural use, irrigation use).
      * The legal framework established in the preamble will help EPA when defending future litigation on use removals and variances, especially as EPA is seeing an increasing use of variances for uses not specified in 101(a)(2), such as for agricultural and irrigation uses.  
      * Will increase transparency to the public as we implement the existing program position on this issue.
         
Antidegradation
1. Identifying High Quality Waters
   Driver:  Stakeholders have expressed concern over the possible use of the waterbody  -  by  - waterbdy approach for identifying high quality waters, threatening legal action if EPA does not prohibit such an approach.  EPA's revisions use a targeted change to preserve the current state/tribe flexibility to prioritize certain waters for Tier 2 protection, while addressing a legitimate concern.  
   
   Benefits:
      * Provides regulatory protection of state flexibility that is currently used by (1/2) of the states that might otherwise be eroded in highly likely, case-specific litigation.
      * Confirms longstanding guidance allowing pollutant-by-pollutant or waterbody-by-waterbody approaches or a hybrid approach, all of which are in use by states.  
         
1. Alternatives Analysis
   
   Driver:  Stakeholders have expressed concern that some states are either not conducting an alternatives analysis before authorizing a lowering of water quality, or, even if they do an alternatives analysis, they do not select alternatives that would have less environmental harm.  EPA's discussions with states have revealed that states may be conducting these alternatives analysis, but the existence of the analysis is not transparent to the public.  Therefore, the revisions are intended to be explicit regarding expectations for states and tribes when allowing a lowering of water quality in a high quality water as required by 40 CFR 131.12(a)(2) , and to increase public transparency regarding such decisions, while maintaining as much state flexibility as possible.  
   
   
   
   Benefits:
      * Retains goal to ensure states select and implement an alternative, if available, that would cause less environmental harm than the proposed lowering, yet still allows states to take case specific factors into consideration.
      * Increase public acceptance and efficiency of the transaction.
      * Rather than specifying a rigid "alternatives analysis" procedure, the proposal builds on some current state practices and EPA's longstanding guidance and only requires a state/tribe to identify a range of alternatives that prevent or minimize degradation.  The proposal maintains state flexibility to choose the alternative that is "feasible" before allowing degradation to occur. 
      * Explains how a state can utilize its flexibility to select the alternative from within the range and that it can select the original project proposal if other alternatives are not feasible.
      * Preamble explicitly allows for considerations of cross-media impacts. 
      * Strikes a balance between status quo and driving states to select the "least degrading feasible alternative" which some environmental groups advocate.

2. Adoption of Implementation Methods
   Driver:  Not all states have sufficient antidegradation implementation methods.  EPA's efforts to persuade states to establish such methods have been met with resistance.  In addition, those states that have sufficient antidegradation methods may not have methods fully accessible and transparent to the public.  
   Benefits:
      * Provides a minimum set of expectations for what aspects of antidegradation all states must address in their antidegradation method, while allowing state the discretion to tailor their methods.  EPA believes that there are States with adequate programs today that already meet the minimum set of expectations. 
      * States and tribes retain flexibility in what form they adopt their antidegradation implementation methods.  States and tribes could adopt them into water quality standards regulations, other regulations, or incorporate the methods into regulation by reference.  
      * Working up front with the state and public on antidegradation methods that meet the requirements of the CWA and the regulation reduces legal vulnerability for both states and EPA.  Currently, EPA is vulnerable to mandatory duty suits to promulgate methods for states, and to withdraw state NPDES delegation. 
      * Responding to antidegradation litigation and petitions is a significant resource drain for EPA. 
     
Variances
Driver:  Variances are currently underutilized or misused, often because there is no regulatory framework to guide states and the public.  The only framework EPA have is built on a legal opinion and relies on the uses regulations which are not always the right match for scenarios in which variances are needed.  EPA has recognized that the EPA Region receiving the most variance requests is also the one that has an established regulatory structure for variances through the GLI (Region 5).   EPA's revisions are intended to provide clarity and specificity to the use and application of WQS variances, such that states can use them when appropriate.  The proposal articulates the flexibility available to states when adopting variances, and provides sufficient accountability to ensure to the public that variances will be used to foster environmental improvements.
Benefits:
   * Clarifies EPA's expectations, brings transparency to the process, and helps promote use of variances by significantly reducing confusion, inconsistency, and mixed interpretations about how, when, and where variances may be used. 
   * Will enhance the ability of some states to issue variances ("EPA says they're OK").
   * Providing a direct link to CWA authority and providing separate regulations for variances (from uses) allows EPA to be more flexible for variances than it can today. 
         o For example, under the proposal, EPA could allow a variance for a point source even if implementing BMPs for non-point sources could potentially enable WQS attainment.  The variance could serve as a mechanism to provide time to explore and implement those BMPs.  In contrast, a use removal (and under today's existing regulations, a variance) would be prohibited if the required prospective analysis showed that imposing "reasonable and cost effective BMPs for NPS control" would allow the current use to be achieved.
   * Provides the regulatory clarity needed to preserve a state/tribe's ability to submit a variance for uses not specified in CWA section 101(a)(2) and identifies when a justification for a variances must be based on attainability related factors.
   
   
   
Triennial Review
   Driver:  There has been concern that some states may not be revising their water quality criteria often enough, particularly when EPA publishes new CWA 304(a) criteria.  Therefore, EPA's revision is intended to increase routine consideration of updated criteria and whether updates are needed to continue protecting the designated use.  Also, outdated criteria are a legal vulnerability and can undermine the integrity of state standards. 
   Benefits:
   * Does not mandate updating of criteria. States retain the discretion to determine whether criteria revisions are necessary to protect the designated use.
   * Encourages states to use their triennial review to preempt legal challenges by proactively considering EPA's 304(a) criteria and providing adequate documentation for how the state's criteria continue to protect the designated use with or without revisions. 
   * Gives stakeholders an avenue to provide data and comments where they perceive the state standards have outdated criteria. 
Compliance Schedule Authorizing Provisions
Driver:  Despite the Star-Kist EAB case, states may not be aware what they need to do administratively to legally utilize a permit compliance schedule.  EPA's revisions are intended to explicitly state EPA's expectations in light of  the Administrator's 1990 decision in the Star-Kist EAB case.
Benefits:
   * Provides an up-front transparent legal basis for future permits with WQBEL compliance schedules to "derive from and comply with" water quality standards as required by 122.44(d).
   * Clarifies an individual compliance schedule is a permitting tool and is not itself considered a WQS. Issuing a compliance schedule continues to be the responsibility of the permitting authority under existing NPDES regulations.
