REVISIONS TO THE FEDERAL WATER QUALITY STANDARDS RULE JILL CSEKITZ, TECHNICAL SPECIALIST TEXAS COMMISSION ON ENVIRONMENTAL QUALITY

 Overview  History  Need for revision  Timeline  Major Revisions  Changes to Texas Surface Water Quality Standards anticipated?  Questions and Discussion PRESENTATION OUTLINE

OVERVIEW

REGULATORY FRAMEWORK: WATER QUALITY STANDARDS Legislation Federal: Clean Water Act, Section 303 State: Texas Water Code, Chapter 26 Regulation Federal: Title 40 Code of Federal Regulations, Part 131 State: Texas Administrative Code, Chapter 307 Texas Surface Water Quality Standards Guidance Federal: WQS Handbook, Technical Support Document for Water Quality Based Toxics Control State: Procedures to Implement the Texas Surface Water Quality Standards

 Initial rule in 1975  “Appropriate” criteria to meet designated uses  Antidegradation policy  Basic framework in place since 1983  Justification and requirements for Use Attainability Analyses (UAA)  Numerical criteria for toxics  Major Revisions  1991: expand water quality standards program to include Indian Tribes  2000: Incorporate “Alaska Rule” TITLE 40 CFR PART 131 WATER QUALITY STANDARDS

 Improve transparency  Increase clarity  Increase standardization among states  Institutionalize current practices in WQS program  Reconcile with litigation WHY WERE CHANGES NEEDED?

 Designated Uses  Antidegradation  Variances  Compliance Schedule Authorizing Provisions  Triennial Reviews  Administrator’s Determination WHAT SECTIONS WERE REVISED?

 1998: Advance Notice of Proposed Rulemaking  Solicit input on major areas in need of revision  2010: Announced plans to initiate rulemaking  Held “listening sessions” to receive input on a set of focused topics  2011: Anticipated rule proposal  September 4, 2013: Rule proposal published  August 21, 2015: Final rule published  October 20, 2015: Effective Date TIMELINE

MAJOR REVISIONS

 Defines “Highest Attainable Use”  Use closest to §101(a)(2) goals of the Clean Water Act, and attainable based on the evaluation of the factor(s)…that preclude(s) attainment of the use and any other information or analyses that were used to evaluate attainability  §101(a)(2) goals: “Water quality which provides for the protection and propagation of fish, shellfish and wildlife and provides for recreation in and on the water”  Requires adoption of the Highest Attainable Use when revising standards through a Use Attainability Analysis (UAA) DESIGNATED USES FishableSwimmable

 When is a UAA required?  When removing or modifying a §101(a)(2) use or subcategory  When designating uses less stringent than “fishable/swimmable” for the first time  What about other uses, like Public Water Supply?  UAA not required, but still need documentation  Consider the value/and or benefits associated with modification of use UAA REQUIREMENTS

 No changes anticipated  Existing subcategories facilitate designation of the highest attainable use  From TSWQS:  Attainable Use – “A use that can be reasonably achieved by a water body in accordance with it’s physical, biological, and chemical characteristics whether it is currently meeting that use or not”  Practice of adopting standards based on UAAs have historically followed this requirement DESIGNATED USES: CHANGES TO TSWQS?

 Expanded rule language to include antidegradation policy and implementation methods  Implementation methods required to be consistent with policy in standards and must be publicly available  Public involvement required  When evaluating factors considered when assigning protections and making antidegradation determinations  Analysis of alternatives is required, prior to allowance of degradation  Analysis must include “practicable alternatives”. If found, must be implemented for degradation to be allowed ANTIDEGRADATION IMPLEMENTATION

 Allows identification of high quality waters for Tier 2 protection:  Waterbody -by- waterbody  Parameter -by- parameter  Waters are not precluded from protection if identified on the 303(d) List of Impaired Waters ANTIDEGRADATION

 No changes anticipated  The TSWQS provide a framework for implementation of the antidegradation policy, including requirements for public comment and evidence provided by the public  Tier 2 reviews apply to those waters where water quality exceeds levels necessary to support fishable/swimmable quality ANTIDEGRADATION: CHANGES TO THE TSWQS?

 More detailed provisions are in the Procedures to Implement the Texas Surface Water Quality Standards  Identification of Tier 2 waters  All waters with existing, designated, or presumed uses of contact recreation and intermediate – exceptional aquatic life use  Tier 2 analysis is applied at the time of permit development on a parameter by parameter basis  Tier 1 analysis prevents additional loading for 303d Listed waterbodies (protects existing uses and high quality waters)  Analysis of alternatives is required when degradation is expected. The analysis must include assessment of cost and feasibility for reasonable alternatives. EXISTING ANTIDEGRADATION IMPLEMENTATION PROCEDURES

 Temporary standards in §307.2(g) of the TSWQS  Goal: Use variance (temporary standard) to make progress, and eventually achieve the underlying standard  What are they?  A time-limited designated use and criterion that reflect the highest attainable condition during the term of the variance  Framework is similar to a UAA  May also be conducted to facilitate restoration or reconfiguration activities, that preclude attainment of underlying use  What purpose?  Permitting and 401 certifications  Underlying use is unchanged and applicable for other purposes (TMDL, assessment, etc.)  Variance must be approved by EPA before used in permitting VARIANCES: INTRO

 Previous rule:  General policy that affects application and implementation  Revisions retained general policy language  New section § provides detailed framework for variances  Includes procedures previously included in WQS Handbook  Time-limited use and criterion  Underlying use and criterion stays the same (TMDL, assessment, etc.)  Highest attainable use  Individual, multiple discharger or water body  Adopted in standards, subject to EPA approval VARIANCES

 Re-evaluation at 5 years  Supporting documentation  Demonstration justifying need for variance and term  Highest attainable condition  Pollution control technologies and optimization  Pollution Minimization Program, if additional controls are not feasible  PMP: A structured set of activities to improve processes and pollution controls that will prevent and reduce pollutant loadings  Specify pollutant, waterbody and discharger  Interim requirements (criterion, effluent condition, etc.)  Waterbody variances  Identification and documentation of NPS best management practices (for water body) VARIANCES: NEW REQUIREMENTS

VARIANCES: CHANGES ANTICIPATED FOR TSWQS?  Yes  Include restoration and reconfiguration activities as reasons  Applicable for permitting and §401 certifications  5 year re-evaluation period  Applicable for individual and multiple permitees, as well as waterbodies  Requirement to specify the applicable use and criterion

COMPLIANCE SCHEDULE AUTHORIZING PROVISIONS  Requires provisions authorizing compliance schedules to be adopted in standards, prior to being used in permits  Changes anticipated to the TSWQS?  No  TSWQS authorizing provisions already in place, §307.2(f)

TRIENNIAL REVIEWS  Adds requirement to provide rationales for not adopting EPA’s §304(a) criteria recommendations published since previous triennial revision  Specific requirements for justifications not provided  Specifies that all applicable WQS adopted into state law should be reviewed during triennial review  Not just parameters with revised §304(a) criteria  Changes anticipated to the TSWQS?  Sort of…  Not to the rule language in §307  Justifications will need to be developed and submitted to EPA during triennial review process

ADMINISTRATOR’S DETERMINATION  In cases where the Administrator has determined that new/revised WQS are necessary to meet requirements of the CWA, those determinations must be signed by the Administrator or designee  Why was this needed?  Minimizes misunderstandings between States and EPA  Hopefully will reduce litigation  Changes anticipated to TSWQS?  No

Jill Csekitz Technical Specialist TCEQ Water Quality Planning Division QUESTIONS?