Antidegradation Implementation: Federal Framework and Indiana Process Presented March 7, 2008

What is Antidegradation? A regulatory policy designed to prevent deterioration of existing levels of good water quality unless the action responsible for the deterioration provides a social or economic benefit. A regulatory policy designed to prevent deterioration of existing levels of good water quality unless the action responsible for the deterioration provides a social or economic benefit. A part of federal water quality requirements. A part of federal water quality requirements. –Federal antidegradation policy is found at 40 CFR § –The Clean Water Act’s (CWA) antidegradation policy is found in section 303(d) (and further detailed in federal regulations) Not a "no growth" rule. Not a "no growth" rule. A policy that allows public input on decisions to be made on important environmental actions. A policy that allows public input on decisions to be made on important environmental actions.

Clean Water Act Requirements for Water Quality Standards Designated Uses Designated Uses –states must identify and designate how each waterbody in the state is used. Water quality criteria Water quality criteria –states must set specific numeric and/or narrative criteria necessary to protect each designated use. Antidegradation policy Antidegradation policy –states required to develop rules & implementation procedures to protect existing uses to protect existing uses to prevent clean waters from being degraded, unless the action responsible for the deterioration provides a social or economic benefit to prevent clean waters from being degraded, unless the action responsible for the deterioration provides a social or economic benefit

Federal History of Antidegradation Concept established in 1968 by U.S. Department of Interior. Concept established in 1968 by U.S. Department of Interior. First policy statement included in EPA's first Water Quality Standards Regulation (40 CFR ,40 F.R , November 28, 1975). First policy statement included in EPA's first Water Quality Standards Regulation (40 CFR ,40 F.R , November 28, 1975). Refined & re-promulgated as part of the current program regulation published on November 8, 1983 (48 F.R , 40 CFR ). Refined & re-promulgated as part of the current program regulation published on November 8, 1983 (48 F.R , 40 CFR ). Based on the spirit, intent, and goals of the CWA Section 101(a): "… restore and maintain the chemical, physical and biological integrity of the Nation's waters." Based on the spirit, intent, and goals of the CWA Section 101(a): "… restore and maintain the chemical, physical and biological integrity of the Nation's waters."

Federal Regulatory Background Antidegradation explicitly incorporated in the CWA through: Antidegradation explicitly incorporated in the CWA through: –a 1987 amendment codified in section 303(d)(4)(B) requiring satisfaction of antidegradation requirements before making certain changes in NPDES permits; and –the 1990 Great Lakes Critical Programs Act codified in CWA section 118(c)(2) requiring EPA to publish Great Lakes water quality guidance including antidegradation policies and implementation procedures. Antidegradation policies & implementation methods are required to be included in a State's water quality standards. Antidegradation policies & implementation methods are required to be included in a State's water quality standards.

Summary of Federal Rule (40 CFR §131.12) States to develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy. States to develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy. The antidegradation policy and implementation methods should be consistent with the following: The antidegradation policy and implementation methods should be consistent with the following: –Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected. –Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully.

40 CFR § (continued) –State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control. –Where high quality waters constitute an outstanding national resource, such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or ecological significance, that water quality shall be maintained and protected. –In those cases where potential water quality impairment associated with a thermal discharge is involved, the antidegradation policy and implementing method shall be consistent with section 316(a) of the Act.

Water Quality Standards Federal Regulation Requires a three-tiered antidegradation program Requires a three-tiered antidegradation program –Section (a)(1), or "Tier 1," protecting "existing uses," protecting "existing uses," provides the absolute floor of water quality in all waters of the United States provides the absolute floor of water quality in all waters of the United States –Section (a)(2), or "Tier 2“ High Quality Waters (HQWs) High Quality Waters (HQWs) water quality exceeds that necessary to protect the section 101(a)(2) goals (fishable & swimmable) water quality exceeds that necessary to protect the section 101(a)(2) goals (fishable & swimmable) water quality may be lowered under certain conditions but never below the level necessary to fully protect the "fishable/swimmable" & other existing uses water quality may be lowered under certain conditions but never below the level necessary to fully protect the "fishable/swimmable" & other existing uses –Section (a)(3), or "Tier 3" Outstanding National Resource Waters (ONRWs) Outstanding National Resource Waters (ONRWs) only temporary reduction allowed in water quality only temporary reduction allowed in water quality

Federal Requirements: Three Tiers of Water

Protection of Tier 1 Waters Specified in - 40 CFR (a)(1) Specified in - 40 CFR (a)(1) Maintain and protect existing uses and water quality conditions necessary to support uses. Maintain and protect existing uses and water quality conditions necessary to support uses. –Existing use to have occurred since Nov. 28, 1975 or –Water quality is suitable to allow existing uses to occur Where an existing use is established, it must be protected even if it is not a designated use Where an existing use is established, it must be protected even if it is not a designated use Applicable to all waters Applicable to all waters

Protection of HQWs (Tier 2) Specified in - 40 CFR (a)(2) Specified in - 40 CFR (a)(2) Includes waters whose quality exceeds that necessary to protect the section 101(a)(2) goals of CWA, regardless of use designation Includes waters whose quality exceeds that necessary to protect the section 101(a)(2) goals of CWA, regardless of use designation Before any lowering of water quality occurs, there must be an antidegradation review consisting of: Before any lowering of water quality occurs, there must be an antidegradation review consisting of: –a finding that it is necessary to accommodate important economical or social development in the area in which the waters are located –full satisfaction of all intergovernmental coordination and public participation provisions –assurance that the highest statutory and regulatory requirements for point sources, including new source performance standards, and best management practices for nonpoint source pollutant controls are achieved Water quality can never be lowered to a level that interferes with existing and designated uses. Water quality can never be lowered to a level that interferes with existing and designated uses.

Protection of ONRWs (Tier 3) Specified in - 40 CFR (a)(3) Specified in - 40 CFR (a)(3) Only temporary lowering of water quality allowed Only temporary lowering of water quality allowed Include: Include: –nation’s highest quality waters –waters of exceptional ecological significance ONRW classification made by States ONRW classification made by States

Indiana’s OSRWs (Tier 2.9) Include waterbodies that have unique or special ecological, recreational, or aesthetic significance (327 IAC 2-1-9). Include waterbodies that have unique or special ecological, recreational, or aesthetic significance (327 IAC 2-1-9). Tier 2.9 is an application of the antidegradation policy that has implementation requirements that are more stringent than for Tier 2, but somewhat less stringent than the prohibition against any lowering of water quality in Tier 3. Tier 2.9 is an application of the antidegradation policy that has implementation requirements that are more stringent than for Tier 2, but somewhat less stringent than the prohibition against any lowering of water quality in Tier 3. –EPA accepts this additional tier in State antidegradation policies because it is more stringent application of the Tier 2 provisions of the antidegradation policy and, therefore, permissible under section 510 of the CWA

“Tiering” of Indiana Waters

Antidegradation Requirements of IC (a/k/a SEA 431) A definition of significant lowering of water quality that includes a de minimis quantity of additional pollutant load: A definition of significant lowering of water quality that includes a de minimis quantity of additional pollutant load: –for which a new or increased permit limit is required; –below which antidegradation implementation procedures do not apply. Significant lowering of water quality allowed in OSRWs or Exceptional Use Water (EUW) if: Significant lowering of water quality allowed in OSRWs or Exceptional Use Water (EUW) if: –there will be an overall improvement in water quality by: implementation of a water quality project in the watershed of the OSRW or the EUW implementation of a water quality project in the watershed of the OSRW or the EUW payment of a fee, not to exceed five hundred thousand dollars ($500,000) based on the type and quantity of increased pollutant loadings payment of a fee, not to exceed five hundred thousand dollars ($500,000) based on the type and quantity of increased pollutant loadings

General History of Past IN Antidegradation Rulemaking 1970s – Indiana’s Stream Pollution Control Board adopted rules that established an antidegradation policy for all waters as part of the Water Quality Standards. 1970s – Indiana’s Stream Pollution Control Board adopted rules that established an antidegradation policy for all waters as part of the Water Quality Standards Indiana’s Water Pollution Control Board adopted, as part of the Great Lakes Initiative, rules that established antidegradation implementation procedures for the Great Lakes Basin ONLY Indiana’s Water Pollution Control Board adopted, as part of the Great Lakes Initiative, rules that established antidegradation implementation procedures for the Great Lakes Basin ONLY – IDEM made various attempts to establish a workgroup to work on antidegradation issues – these attempts failed to resolve issues – IDEM made various attempts to establish a workgroup to work on antidegradation issues – these attempts failed to resolve issues.

General History of Past IN Antidegradation Rulemaking November 6, 2002 – first meeting of Antidegradation- OSRW workgroup set up by the Triennial Review Steering Committee November 6, 2002 – first meeting of Antidegradation- OSRW workgroup set up by the Triennial Review Steering Committee March 1, first notice of rulemaking – extensive comments were received and responses developed, however, some felt the Agency’s responses to the first notice comments were insufficient. March 1, first notice of rulemaking – extensive comments were received and responses developed, however, some felt the Agency’s responses to the first notice comments were insufficient. March 2003 – April 2005 – workgroup meetings were held through December March 2003 – April 2005 – workgroup meetings were held through December April 1, 2005 – second notice of rulemaking. The comment period was open from April 1, 2005 through May 30, Responses to the comments were never prepared. April 1, 2005 – second notice of rulemaking. The comment period was open from April 1, 2005 through May 30, Responses to the comments were never prepared.

General History of Present IN Antidegradation Rulemaking Considering: Considering: – the extensive amount of comments received; –an internal review by staff who would be responsible for implementing antidegradation procedures; IDEM determined the April 1, 2005 second noticed draft would be difficult to implement April 2005 – July 2007 – internal IDEM, OWQ workgroup met to take a fresh look at antidegradation implementation procedures and develop revised concept April 2005 – July 2007 – internal IDEM, OWQ workgroup met to take a fresh look at antidegradation implementation procedures and develop revised concept

General History of Present IN Antidegradation Rulemaking August 2, 2007 – presentation of revised antidegradation concept to interested parties in NW IN at Northwest IN Regional Planning Commission (NIRPC) August 2, 2007 – presentation of revised antidegradation concept to interested parties in NW IN at Northwest IN Regional Planning Commission (NIRPC) Attendees included: Attendees included: –Kay Nelson, NW IN Forum –Lee Botts, the Alliance for the Great Lakes –Kathy Luther; Dan Gardner; Kyle Nelson; Jackie Anders, NIRPC –Brad Klein, Environmental Law and Policy Center –John Ross, NiSource –Kevin Doyle, Mittal Steel –Tom Anderson and Charlotte Read, Save the Dunes –Dave Behrens, U.S. Steel –Linda Wilson, BP –Jennifer Gadzala, Town of Chesterton –Glenn Pratt via telephone –Various IDEM staff

General History of Present IN Antidegradation Rulemaking August 15, presentation of revised antidegradation concept to industry reps. August 15, presentation of revised antidegradation concept to industry reps. August 22, 2007 – follow-up on presentation of revised antidegradation concept with industry reps. August 22, 2007 – follow-up on presentation of revised antidegradation concept with industry reps. September 28, 2007 – additional follow-up on presentation of revised antidegradation concept with industry reps. September 28, 2007 – additional follow-up on presentation of revised antidegradation concept with industry reps. Key attendees included: Key attendees included: –Patrick Bennett, Indiana Manufacturers Association –Neil Parke, Eli Lilly –John Humes, Hoosier Energy –Tim Lohner, American Electric Power –Nat Noland, Indiana Coal Council –Vince Griffin, Indiana Chamber of Commerce

General History of Present IN Antidegradation Rulemaking September 12, presentation of revised antidegradation concept to Water Pollution Control Board. September 12, presentation of revised antidegradation concept to Water Pollution Control Board. Key Concepts: Key Concepts: –de minimis –default antidegradation limits –public notification process

General History of Present IN Antidegradation Rulemaking October 17, presentation of revised antidegradation concept to environmental interest group reps. October 17, presentation of revised antidegradation concept to environmental interest group reps. November 21, 2007 – follow-up on presentation of revised antidegradation concept with environmental interest group reps. November 21, 2007 – follow-up on presentation of revised antidegradation concept with environmental interest group reps. Key attendees included: Key attendees included: –Tim Maloney, Hoosier Environmental Council –Rae Schnapp, Hoosier Environmental Council –Bowden Quinn, Sierra Club –Jeff Hyman, Conservation Law Center –Brad Klein, Environmental Law & Policy Center –Charlotte Read, Save the Dunes –Albert Ettinger, Environmental Law & Policy Center

General History of Present IN Antidegradation Rulemaking October 29, presentation of revised antidegradation concept to municipality reps. October 29, presentation of revised antidegradation concept to municipality reps. Key attendees included: Key attendees included: –Jodi Perras, representing Indiana Water Environment Association and the City of Indianapolis –Fred Andes, Barnes and Thornburg –Brett Barber, Greeley-Hansen

Current Activity on Present IN Antidegradation Rulemaking IDEM has developed draft rule language IDEM has developed draft rule language –The draft used the framework described in the revised antidegradation concept and took into consideration feedback from the presentations and follow-up meetings –The draft language is currently being reviewed internally Governor’s Stakeholder meeting Governor’s Stakeholder meeting –This meeting is now – March 7, 2008

Next Steps on Present IN Antidegradation Rulemaking IDEM will prepare a notice of rulemaking IDEM will prepare a notice of rulemaking IDEM will establish a workgroup IDEM will establish a workgroup –The workgroup will include representatives from industry, environmental interest groups, and municipalities –Goal is to hold the first workgroup meeting in April 2008

Proposed Workgroup Process The number of workgroup meetings will be limited and each meeting will target discussion on a key concept. The number of workgroup meetings will be limited and each meeting will target discussion on a key concept. Key Concepts to discuss: Key Concepts to discuss: –de minimis – April 2008 –default antidegradation limits – May 2008 –public notification process – June 2008

Proposed Rulemaking Timeline (best case scenario) Second Notice publication: Goal – July 2008 Second Notice publication: Goal – July 2008 Comment period – minimum 30 days so would end by: Goal - August 2008 Comment period – minimum 30 days so would end by: Goal - August 2008 Respond to comments – dependant on the number and nature of comments received - complete by: Goal – September 2008 Respond to comments – dependant on the number and nature of comments received - complete by: Goal – September 2008 Preliminary Adoption: Goal – October 2008 Preliminary Adoption: Goal – October 2008 Third Notice – may require 21 day comment period - publication: Goal – November 2008 Third Notice – may require 21 day comment period - publication: Goal – November 2008 Final Adoption – Goal – December 2008 Final Adoption – Goal – December 2008