Regulations Require Identification of High Quality Lakes, Streams and Other Surface Water

The U.S. Environmental Protection Agency (EPA) recently issued proposed regulations governing the way it reviews and approves state water quality standards. The federal Clean Water Act requires states to adopt water quality standards for every surface water within their boundaries. The regulations set new requirements for complying with anti-degradation requirements, selecting designated uses, implementing variances, and issuing permit compliance schedules, which could impact state programs across the country.

Public comments on the proposed regulations are due in early December. If finalized as is, they would establish uniform state anti-degradation standards for protecting high quality waters by requiring states to identify those water bodies and perform alternative analyses before authorizing their degradation. States would also have to develop implementation methods and make those methods publicly available. The regulations allow EPA to review and approve or disapprove the state-adopted, anti-degradation policies and implementation methods. Thus, in California, for example, the new rules could potentially augment or replace portions of the existing State Water Resources Control Board anti-degradation policy if California’s existing standards fall short of the regulatory bar that is ultimately set by EPA’s final rule. 

The regulations also attempt to delineate when an EPA “determination” has been made by requiring a formal signature and a statement that the document is, in fact, “a determination for purposes of section 303(c)(4)(B) of the Act.” Recent court decisions, such as the Eighth Circuit’s holding in Iowa League of Cities v. EPA, have found that letters and memoranda issued by the EPA can be considered final agency actions subject to court review. Thus, this provision could become contentious if it allows EPA to refrain from making a determination and avoid challenges—even when the EPA has found and informs a state regarding known violations.

The review and comment period regarding the proposed regulations: Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54518 (Sept. 4, 2013), will be open until December 3, 2013.