        Examples of WQS Programmatic and Legal Challenges  -  May 2013

Designated Uses  -  Highest Attainable Use and criteria to protect that use
Codifying EPA's expectation that states adopt the highest attainable use and criteria to protect the revised use is important to ensure that EPA, state and public transactions are as efficient and effective as possible.  Below is an example of where having EPA's expectations transparently outlined in the regulation would have reduced transaction costs for states and for EPA, and would have led to timely review and approval by EPA.  
> Between 2008 and 2012, Iowa submitted 26 UAAs to support removal of primary contact recreation (PCR) uses for many of their waters without adopting another recreation use in its place. 
> While Iowa's UAAs explained how PCR was not attainable for these waters, they did not justify removing recreational uses completely and did not evaluate the attainability of other recreation uses.
> To date, EPA has not taken any action on these specific use revisions.  Whether and how the state intends to protect recreation uses in and on these waters is not transparent to EPA or the public.  
> Despite discussions with the state, the state feels that it has sufficiently met the federal requirements by rebutting the presumption that PCR is attainable in these waters.  EPA, however, believes that although not explicit in the regulations, the state must still protect the attainable recreation uses, if any exist.  Thus far, EPA has tried to avoid disapproving the state's submission in hopes of a resolution.  However, the issue remains unresolved, the state must continue to write NPDES permits and assess water based on PCR. 
> EPA is legally vulnerable to a mandatory duty lawsuit.  If one were to be filed, EPA's action would result in a disapproval of the revisions.  
> EPA firmly believes that had the national WQS regulations transparently and clearly required the adoption of the highest attainable use and criteria to protect such revised use, Iowa would have provided either adequate UAAs justifying their use changes (i.e., no recreational use is attainable) or adopted the recreation uses that they intend to protect in each water body after a sufficient and constructive public process.  And EPA, in turn, would have been able to approve the State's WQS revision within the 60 day statutory requirement.
   
Antidegradation Implementation  -  Adoption of Antidegradation Implementation Methods
Requiring that antidegradation implementation methods be adopted and approved by EPA is important to ensure that the state is fully transparent with the public and EPA on how it intends to implement its antidegradation program before actual implementation.  It is EPA's preference for states to develop their own antidegradation implementation methods and it is also important to allow EPA to work directly with states to ensure that state antidegradation implementation methods are fully consistent with EPA's regulations at 131.12 before those methods are being applied.   This proposed requirement would not only allow antidegradation implementation programs to run more efficiently, but also reduce litigation risks to EPA, states and permittees and avoids the possibility of large numbers of permit objections.  Below are some examples that highlight the need and value of having antidegradation implementation methods adopted by the states.
1. EPA has received the following three petitions to withdraw a State NPDES program due to the state's failure to adopt antidegradation implementation methods into regulation:
      a. Indiana (2009  -  Environmental Law and Policy Center, Sierra Club, et al)  -  petitioner alleged state has failed to adopt antidegradation implementation methods, and that the state's draft implementation methods were deficient and inappropriately addressed de minimis, social/economic findings, and general permits.
      b. Vermont (2008 - Conservation Law Foundation)  -  petitioner alleged that state has failed to adopt antidegradation implementation methods.
      c. Georgia (1997  -  Southern Environmental Law Center, Sierra club et al)  -  petitioner alleged state's use of "unpromulgated guidance" allows it to subvert the public participation process and to evade mandatory requirements of the Clean Water Act, and that the state has argued that it was not required to follow its antidegradation implementation methods because they were only guidance.  
2. WQS Litigation - EPA has had 6 WQS lawsuits in the past 20 years (most in the last 10 years) that directly challenge a state's lack of antidegradation implementation methods or inadequate antidegradation implementation methods in guidance and assert that EPA has a duty to promulgate antidegradation implementation methods for a state. The time required to resolve each case ranged from between 1 and 15 years, with more than half taking 5+ years to conclude.  In addition to the state and EPA resources and time spent on the cases, environmental improvement was delayed and there was uncertainty for the states in the interim. Two of the most notable cases are summarized below.
      a. Oregon (2001- present)
         o In April 2001, Northwest Environmental Advocates (NWEA) filed a lawsuit (Northwest Environmental Advocates v. EPA, 268 F.Supp.2d 1255 (D. Oregon 2003)) claiming that Oregon never submitted an antidegradation implementation method to EPA or that, even if it did, it was significantly inadequate.  The Court found that the State had a "bare-bones implementation plan" and held that EPA had a mandatory duty to promulgate an antidegradation implementation method for Oregon's waters, which it failed to do.  
         o Pursuant to the court order, EPA published a proposed rule establishing an implementation plan for the State, but it was never finalized because Oregon adopted and EPA approved the State's antidegradation implementation methods in 2004.
         o In 2004, NWEA filed another lawsuit concerning Oregon's antidegradation program  (Northwest Environmental Advocates v. EPA, Case No. 05-cv-01876 (D. Oregon)) claiming, in part, that EPA's approval of Oregon's antidegradation implementation methods was arbitrary and capricious because they don't provide a method to identify or protect existing uses.  EPA argued that, under current regulations, states need only "identify" methods and that it only approved those pages of the State's antidegradation implementation plan that were incorporated by reference into Oregon's regulations.  
         o In 2012, the Court held "EPA was required to review [Oregon's antidegradation implementation methods, which exist in non-binding guidance,] to ensure that it describes the required elements and complies with federal regulations such that it does not circumvent the purpose of the [State's] antidegradation policy."  After the court issued its opinion, it ordered briefing with respect to remedy.  EPA's January 2013 brief states that there is no current requirement that EPA take a CWA section 303(c) approval/disapproval action on the state's antidegradation implementation guidance document, and the court should, therefore, not order EPA to take such an action.
      b. Puerto Rico (15 years, 1992-2007)
              o          In 1992, plaintiff, an environmental group, alleged that EPA failed to ensure that Puerto Rico had antidegradation implementation methods for its waters.  Puerto Rico worked with EPA to identify antidegradation implementation methods in guidance.
              o          In 2004, EPA sent a letter to Puerto Rico stating that their antidegradation implementation methods were consistent with the CWA.
              o          In 2007, the Court found that EPA had determined in 1992 that antidegradation implementation methods were needed for Puerto Rico.  CORALations v. EPA, 477 F. Supp. 2d 413 (D. Puerto Rico 2007)., Therefore, it held that EPA had failed to perform a mandatory duty to promulgate antidegradation implementation methods for Puerto Rico despite the fact that Puerto Rico had identified antidegradation implementation methods in guidance.  
              o          EPA was ordered to prepare and publish proposed regulations setting forth new water quality standards (i.e., antidegradation implementation methods) for Puerto Rico, which were finalized in 2007.

      c. Additional state and EPA transaction and litigation costs were spent in the following relevant cases : 
              o  Idaho Conservation League v. EPA, No. 10-cv-207 (D. Idaho) 
              o Missouri Coalition for the Environment v. EPA, No. 03-4217 (W.D. Mo.) 
              o Cook Inletkeeper v. EPA, No. 07-2420 (9[th] Cir.) 
              
Antidegradation Implementation  -  The use of a waterbody-by-waterbody approach to identify High Quality waters for Tier 2 review
EPA's proposed regulatory language at §131.12(b), which would  allow states to identify high quality waters using a waterbody-by-waterbody approach with one narrow restriction, is important to preserve states' flexibility that some states desire to prioritize certain waters for Tier 2 protection, and address a legitimate concern that has been subject of concern by environmental groups (see the example below).  To date, the courts have upheld states' use of the water body-by-water body approach (see below), deferring to the Agency's long-standing interpretation of ambiguous regulations.  Explicitly providing for the waterbody-by-waterbody approach in regulation would reduce the risk that a court might find that EPA's regulations prohibit that approach, in the event environmental groups continue to litigate based on their position that states only identify high quality waters using a parameter-by-parameter approach.  In addition to adding clarity, EPA's proposed rule is crafted to address an important environmental issue and the main concern potential litigants have with a water body-by-water body approach.
1. Petition for EPA to do a rulemaking prohibiting the waterbody-by-waterbody approach
   * In February 2011, four environmental groups represented by Albert Ettinger, submitted a petition to EPA specifying that "EPA should amend 40 CFR 131.12(a)(2) to require use of the parameter-by-parameter approach by every state and tribe or, at least, amend the regulation to set clear and narrow limits on the nature of the water bodies which are subject to unnecessary new or increased pollution."
   * EPA responded to the petition in June 2011 stating that we considered their petition in the context of our proposed WQS Regulatory Revision.  We further stated that EPA's draft proposed regulations includes revisions to section 131.12 to address the challenges faced when implementing antidegradation requirements to protect high quality waters and the options available.
2. WQS Litigation:  Plaintiff filed a complaint against EPA regarding the lack of antidegradation implementation methods in KY, and the complaint was later amended to argue that EPA's approval of the state's antidegradation implementation methods was arbitrary and capricious.  Eventually, the court upheld EPA's approval of KY's water body-by-water body approach in identifying waters to receive Tier 2 protection, doing so by deferring to the Agency's longstanding interpretation of its ambiguous regulations.  EPA's proposal would clarify EPA's regulation regarding the propriety of water body-by-water body approaches. 
      a. Kentucky (2001  -  2008)
              o          In 2001, Kentucky Waterways Alliance sent a Notice of Intent to Sue EPA, claiming an alleged failure to perform a mandatory duty under CWA to promulgate a federal standard implementing antidegradation requirements for Kentucky.
              o          In November 2002, EPA proposed federal antidegradation implementation method for Kentucky.
              o          Believing the method was inadequate, Plaintiffs filed an action in federal court in 2004 alleging that EPA failed to comply with the CWA.  During this time, KY adopted and EPA approved an implementation method for the State.  Plaintiffs then amended their complaint to argue that the approval was arbitrary and capricious.
              o          The district court issued a decision in 2006, in which EPA prevailed on all claims; the plaintiffs appealed to the Sixth Circuit Court of Appeals (Kentucky Waterways Alliance v. EPA, 540 F.3d 466 (6[th] Cir. 2008)) where EPA's approval of the majority of the state's provisions was upheld in 2008, including EPA's approval of Kentucky's water body-by-water body approach to designating Tier 2 waters, deferring to the Agency's longstanding interpretation of its ambiguous regulation.

Provisions Authorizing the Use of Permit-Based Compliance Schedules
EPA's proposed regulation at 131.15 regarding compliance schedule authorizing provisions (consistent with the EPA Administrator's 1990 Star-Kist decision) is intended to explicitly articulate (1) the discretion a state already has to adopt compliance schedule authorizing provisions if the state wishes to utilize permit compliance schedules and (2) that any such authorizing provisions is a water quality standards subject to EPA approval.  Despite the fact that Star-Kist is more than 20 years old, there has been some lingering confusion among the states, permittees, and general public about how states can  ensure that any permits issued with compliance schedules are consistent with the CWA and EPA's permitting regulations. 
In response to questions raised, we'd like to provide the following additional information on our proposed regulation.
> In In the Matter of Star-Kist Caribe, Inc. (1990), the Administrator interpreted CWA section 301(b)(1)(C) to mean that, after July 1, 1977, NPDES permits must require immediate compliance with WQBELs based on pre-1977 WQS.  He also interpreted the statute to mean that compliance schedules are allowed for WQBELs based on post-1977 WQS only if the State has clearly indicated in its WQS or implementing regulations that it intends to allow them.  
      o Attachment H - the Administrator's decision in In the Matter of Star-Kist Caribe, Inc. (1990).
> EPA's position on what is needed if a state wishes to allow permit compliance schedules has been consistent since 1990.  Please see the following references for examples:
      o In re Upper Blackstone Water Pollution Abatement District,  2010 EPA App. LEXIS 17 (May 28, 2010)(citing Star-Kist , 3 E.A.D. 172, 175 (EAB 1990)
      o In re City of Ames, Iowa, 6 E.A.D. 374, 380 (EAB 1996))
      o May 10, 2007 Memorandum from James A. Hanlon to Alexis Strauss titled "Compliance Schedules for Water Quality-Based Effluent limitations in NPDES Permits."
> At least four federal circuit courts of appeals have held that EAB decisions like Star-Kist are entitled to Chevron deference, meaning the courts would defer to a reasonable Agency interpretation of the statute.  See Resisting Environmental Destruction on Indigenous Lands, REDOIL v. EPA, 2012 U.S. App. LEXIS 26358 (9th Cir. 2012) which cited to similar decisions in the 8th, 3rd, and 4th Circuits.  

WQS Variances
EPA's proposed regulations at 131.14 establishes clear rules for the use of WQS variances and the process to obtain one is important to provide. This much needed clarity codifies that WQS variances are a legitimate tool available to states when implementing their water standards program, articulates the flexibility available to the states when adopting variances, and provides sufficient accountability to ensure the public that variances will be used to foster environmental improvements.  Below is an example of where having variance regulations in place would have helped states and their stakeholders quickly agree on a constructive path forward.
> In the late 1990s, Delaware, New Jersey and Pennsylvania identified the Delaware Estuary as impaired on their respective CWA section 303(d) lists based on elevated levels of PCBs in fish tissue, making it unsafe for humans to consume the fish.  Thus, the primary designated use of "fishable waters" in the Delaware estuary was not attained. 
> Source loadings of PCBs are both internal and external to the system, including atmospheric deposition, point sources, CSOs, storm water runoff from contaminated sites, and inputs from other waters.  
> With the Delaware River Basin Commission (DRBC) taking the lead to coordinate amongst stakeholders, the parties desired a step-wise incremental approach to restoring the Estuary, which was initially constructed as a "Water Quality Standards Implementation Plan" to be adopted into water quality standard.
> Such an approach was akin to a waterbody variance or a multiple discharger variance.  However, due to misconceptions by the regulatory community that obtaining a variance is too burdensome and by the environmental community believing that variances are a "get out of jail free" card, the states rejected the approach.  
> EPA's preamble and proposed rule heavily borrowed from the discussions on the WQS implementation Plan in the Delaware Estuary such that the rule incorporates and transparently lays out a mechanism that the parties desired.  If the proposed rules with the variance procedure had been in place clearly laying out EPA's expectations, it is likely the regulated community would have better understood what was needed to obtain a variance and the environmental community would have realized that such an approach can build in accountable measures to ensure reasonable progress.
Additionally, WQS variances are an underutilized tool nationally. Since tracking WQS variance submittals in 2004, EPA found that states/tribes in four regions have never submitted a variance as a WQS and states/tribes in 3 additional regions have not submitted a WQS variance since 2009. However, EPA has found that where states and tribes and their stakeholders have more specificity in regulation regarding expectations and accountability for variances, such as those states and tribes covered by the "Water Quality Guidance for the Great Lakes System" (i.e., Great Lakes Initiative) rulemaking at 40 C.F.R. Part 132, they are successfully adopting and submitting WQS variances.  For example, since 2004, 93 of the 135 WQS variances submitted to EPA were from states in Region 5 (which is covered by the GLI). EPA wants to provide similar regulatory specificity nationally.
A final programmatic and legal challenge related to variances is whether or not variances must adhere to all the same regulatory provisions as designated use changes, including whether or not a state must use the "attainability factors" to support a variance for uses not specified in CWA section 101(a)(2) (e.g., public water supply use, agricultural use, irrigation use).  EPA recently approved a WQS variance in Minnesota for an agricultural use. This variance is being challenged on several fronts, including whether one of the 131.10(g) factors was satisfied. The proposed preamble and rule would state EPA's interpretation regarding legal authority for WQS variances and provide 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).
