On August 21, 2015, EPA issued a final rule revising its regulations governing the development, review and approval of state water quality standards (“WQS”) (40 CFR Part 131). The revisions were prompted by requests from the states for increased clarity in the existing rule, as well as the need for greater flexibility. The rule includes changes that expand EPA’s authority to review state WQS in several ways.
EPA added new provisions allowing it to review state antidegradation policies and related implementation methods for consistency with EPA regulations. EPA explained how states may apply antidegradation policies – either on a parameter-by-parameter basis or on a water body-by-water body basis.
The rule adds new authority for EPA to review state WQS variances and state-adopted compliance schedules for water quality-based effluent limits in NPDES permits. Under the final rule, a WQS variance may be adopted for either a discharger-permittee, a water body, or a water body segment. The new rule requires states to certify that WQS variances represent the “highest attainable use,” a newly defined term.
EPA revised its designated use provision to clarify that a state adopting a designated use other than those specified in CWA § 101(a)(2) must submit documentation justifying how the use and value of water for the listed uses supports the states’ designation, such as a use attainability analysis.
Finally, EPA added new provisions to the regulations which require states that wish to use compliance schedules to adopt a permit compliance schedule provision. This provision will be subject to EPA review and approval under CWA § 303. Finally, EPA’s rule requires a state to provide an explanation with its triennial review submittal if it does not adopt new or revised criteria for parameters for which EPA has published new or updated CWA § 304(a) criteria recommendations.
The final rule becomes effective October 20, 2015 and is available here.