In its recently published guidance, Priorities for Water Quality Criteria and Standards Programs FY 2017-2018, the EPA directs state and tribal environmental agencies to tackle six challenging water quality issues in the coming years. This guidance, along with broadening of the EPA’s water national enforcement initiative to include reductions in industrial pollutants, signals the EPA’s growing water pollution priorities. Regulated entities should pay close attention to these priority areas as they make capital improvements or operations and maintenance changes.
Priority 1: Update standards for consistency with new federal Water Quality Standards.
The first of six listed priorities is a recommendation that states update their standards to be consistent with the new Water Quality Standards (WQS) rule issued in 2015, found at 40 CFR Part 131. Recent updates to the criteria include the 2012 recreational water quality criteria, the 2013 ammonia criteria, and the 2015 human health criteria. The EPA priorities document also offers specific guidance to states regarding designated waterway uses, antidegradation, and variances.
Priority 2: Expand efforts to establish numeric criteria.
Next, the agency asks states and tribes to expand their efforts to establish numeric biocriteria, nutrient criteria, and toxics criteria. It appears that the EPA hopes the new numeric criteria will overcome the difficulties inherent in enforcing narrative WQS.
Priority 3: Improve online public access to EPA-approved state and tribal WQS.
State and tribal agencies currently have had varying success in making relevant rules and policies accessible to the public via the Internet. In some states, it is virtually impossible for members of the public to find key regulations and standards. Accordingly, the EPA is calling on states and tribes to improve online access to WQS.
Priority 4: Increase focus on environmental justice.
The EPA is likewise calling on states and tribes to refocus their efforts to consider environmental justice in setting and implementing WQS. New criteria and standards must be protective of tribal treaty rights. And states and tribes should utilize evidence-based fish consumption rates for various local populations — with a particular emphasis on determining fish consumption practices among tribal consumers. As states and tribes revise their water quality criteria, regulated entities located on or near heavily fished waters may face more stringent requirements.
Priority 5: Include implementation in setting criteria and WQS.
The EPA guidance recommends that states and tribes address implementation as part of the criteria and standards development process to avoid issues that may arise later in the process. This includes increased coordination between states and EPA permitting, TMDL, and assessment staff. Improving implementation may take the form of revising permit writer’s guidance documents, preparing new model forms, and training state and tribal enforcement personnel on the new requirements, among other things.
Priority 6: Include downstream protection and natural conditions when establishing criteria.
Finally, the priorities document reminds states and tribes to consider downstream protection and natural conditions in making use designations and establishing other water quality criteria. While the regulation at 40 CFR 131.10(b) requires consideration of downstream protection, states and tribes have been inconsistent in their approaches to that consideration in making use designations.
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With the upcoming election, and federal, state and tribal agency budgets in doubt, it is difficult to predict how much progress will be made on any of these six priorities. The potential impacts, however, are far-reaching, and the McGuireWoods water industry team will be monitoring the agencies’ efforts in these priority areas and stands ready to help businesses make critical decisions in light of the pending changes.