John A. DeLashmit, P.E.

USEPA Region 7

REGFORM Missouri Water Seminar

September 11, 2015

The List Final WQS Regulation Clarifications

“New” WQ Criteria Recommendations (published June 29, 2015)

2012 Recreational Criteria

2013 Ammonia Criteria

Final WQS Regulation Clarifications

Final rules were published in the Federal Register on August 21, 2015

EPA made revisions in the following six program areas:

Administrator’s determinations (that new or revised WQS are necessary)

Designated uses

Triennial reviews

Antidegradation

Variances to water quality standards

Permit compliance schedule authorizing provisions

Final WQS Regulation Clarifications

The new regulations become effective on October 20, 2015

After that date, state submittals must meet the new

requirements; however, there is a short “period of transition”

EPA will review state submittals based on consistency with the

CWA and the EPA regulations that were in effect prior to the

effective date if:

The state submits its changes to EPA before October 20, 2015, or

The state held its public hearing(s) and the state’s public comment

period closes before October 20, 2015, and the state submits its new

or revised WQS within nine months of October 20, 2015 (on or

before July 20, 2016)

Some of the Changes

Administrator’s Determination

This rule change clarifies what constitutes an Administrator’s determination under 303(c)(4)(B) of the Clean Water Act

A determination must be signed by the Administrator or a duly authorized delegate, and

A determination must include a statement that the document is an Administrator’s determination for the purposes of section 303(c)(4)(B) of the CWA

The public has occasionally mistaken a communication from the EPA for a “determination” that new and revised WQS are necessary

With this clarification, the potential for misunderstanding is minimized, allowing the EPA to provide candid and transparent feedback

Designated Uses

States must perform a use attainability analysis (UAA) to remove or revise (applying less stringent criteria) a CWA section 101(a)(2) (“fishable/swimmable”) use

Revisions establish an additional requirement to adopt the highest attainable use (HAU) after demonstrating that fishable/swimmable uses are not attainable

A UAA is not required when a state removes or revises a non-fishable/swimmable use (e.g., public water supply, agriculture, navigation)

Triennial Reviews

If states choose not to adopt new or revised criteria during their triennial review for any parameters for which EPA has published new or updated criteria recommendations, they must explain their decision when reporting the results of their triennial review to EPA

The Rule also clarifies the “applicable water quality standards” that states must review triennially

Antidegradation

The revision requires states’ antidegradation implementation procedures (AIPs), whether or not adopted into rule, to be consistent with their antidegradation policies and with 40 CFR 131.12(a)

Also requires states to provide an opportunity for public involvement during the development and any subsequent revision s of AIPs, and to make the procedures available to the public

The rule adds 40 CFR 131.5(a)(3) to specify that EPA has the authority to determine whether states’ antidegradation policies and any adopted AIPs are consistent with federal requirements

WQS Variances

The WQS variance update establishes regulatory expectations for variances to support consistent, appropriate, transparent and enforceable implementation

40 CFR 131.14(b)(2)(i): establishes a seventh acceptable

“factor” (restoration) for justifying variances, in addition

to those listed in 40 CFR 131.10(g)

WQS Variances (cont.) Four big changes are in the Rule:

Explicit authorization of variances; single discharger, multiple discharger, waterbody, or waterbody segment

The Rule requires states to include specifics in the variance, such as: the varied pollutant(s) or parameter(s), the waterbody or waterbody segment(s) to which the variance applies, and the identity of the discharger (discharger-specific) or the specific eligibility requirements (multi-discharger)

States must supply documentation to justify why the variance is needed (per 40 CFR 131.10(g) and 131.14(b)), the term for the variance, and the highest attainable condition

States are to reevaluate WQS variances longer than five years on an established schedule with public involvement. States must specify in the variance the reevaluation frequency and how they plan to obtain public input on the reevaluation

Permit Compliance Schedules

Compliance schedule authorizing provisions update specifies that compliance schedule authorizing provisions must be adopted as part of a state or tribe’s water quality standards, and therefore must be submitted to EPA for review and action

How to Get Additional Information on the WQS Clarification Rule

If you have questions or comments, you may email WQSRegulatoryClarifications@epa.gov or call 202-566-1860.

Of course, there’s a Web page: http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm

“New” Recommended Water Quality Criteria for Human Health

Published in the Federal Register on June 29, 2015

Recommendations for 94 chemical pollutants

Chlorinated hydrocarbons

Pesticides/herbicides

Polynuclear aromatic hydrocarbons

Recreational Criteria Recommendations Two sets of recommended criteria; EPA will accept

either from states and tribes

Criteria expressed as a geometric mean (GM) and a “statistical threshold value” (STV)

May use E. coli or enterococci as indicator for fresh water

Criteria are for primary contact recreation (Whole Body Contact Recreation in MO)

Recreational Criteria Recommendations (cont.) Optimal averaging interval is 30 days, but 90 days is

acceptable

EPA can no longer support use of seasonal averaging

Water body GM should not exceed GM criterion during any 30-day interval

Should not be greater than 10% excursion frequency of STV during a 30-day interval

Single-sample maximum (SSM) concentrations are no longer used

Recreational Criteria Recommendations (cont.)

Ammonia Criteria Recommendations

Published in the Federal Register on August 22, 2013 Supersedes recommended criteria from 1976, 1985, and 1999 Revision necessary because EPA became aware of new toxicity

studies showing the relative sensitivity of freshwater mussels to ammonia

Since publication of draft criteria in 2009, additional studies have validated sensitivity of unionid mussels and gill-breathing snails to ammonia

New criteria are more stringent than 1999 recommendations Duration components remain the same – a one-hour average for

the acute criterion and a 30-day average for the chronic criterion States are expected to address these recommendations in their

next triennial review

Criterion Duration

1999 Criteria

2009 Draft Updated Criteria

2013 Final Updated Criteria

Acute (1-hour average)

24 19 17

Chronic (30-day rolling average)

4.5* 0.91* 1.9*

*Not to exceed 2.5 times the criterion continuous concentration as a 4-day average within a 30-day period.

Criteria frequency not to be exceeded more than once in three years on average. Criteria magnitudes are expressed as total ammonia nitrogen (mg TAN/L) at pH 7 and 20°C.

John A. DeLashmit, P.E. USEPA Region 7 11201 Renner Blvd. Lenexa, KS 66219 (913)551-7821 delashmit.john@epa.gov