EPA’S ROLE IN APPROVING BASIN PLAN AMENDMENTS

WHICH BPAs REQUIRE EPA REVIEW? NEW OR REVISED WATER QUALITY STANDARDS TOTAL MAXIMUM DAILY LOADS (TMDLs)

NEW OR REVISED WATER QUALITY STANDARDS BENEFICIAL USES WATER QUALITY OBJECTIVES ANTIDEGRADATION POLICIES GENERALLYAFFECTING IMPLEMENTATION OF WQS, E.G. Mixing Zones Low Flows Variances Compliance Schedules

TMDLs TMDL = Σ WLAs + Σ LAs + NB WLA = portion of receiving water’s loading capacity allocated to a point source LA = portion of receiving water’s loading capacity attributed to a nonpoint source NB = Natural background

SOURCE OF EPA’S AUTHORITY TO REVIEW CLEAN WATER ACT §303(c) for WQS [40 CFR 131] §303(d) for TMDLs [40 CFR 130.2 and 130.7]

WQS REGULATIONS 40 CFR 131 131.1 – Scope 131.2 – Purpose 131.3 – Definitions 131.4 – State Authority 131.5 – EPA Authority 131.6 – Minimum requirements for WQS submission

WQS Regs: 40 CFR 131 (cont.) 131.10 – Designation of Uses 131.11 – Criteria 131.12 – Antidegradation policy 131.13 – General Policies 131.20 – State review and revision 131.21 – EPA review and approval 131.22 – EPA promulgation of WQS 131.38 – CA Toxics Rule

TDML Regulations 40 CFR 130.2: Definitions 40 CFR 130.7: TMDLs 130.7(c) - Development of TMDLs and individual water quality based effluent limitations 130.7(d) – Submission and EPA approval (c) Pollution. The man-made or maninduced alteration of the chemical, physical, biological, and radiological integrity of water. (d) Water quality standards (WQS). Provisions of State or Federal law which consist of a designated use or uses for the waters of the United States and water quality criteria for such waters based upon such uses. Water quality standards are to protect the public health or welfare, enhance the quality of water and serve the purposes of the Act. (e) Load or loading. An amount of matter or thermal energy that is introduced into a receiving water; to introduce matter or thermal energy into a receiving water. Loading may be either man-caused (pollutant loading) or natural (natural background loading). (f) Loading capacity. The greatest amount of loading that a water can receive without violating water quality standards. (g) Load allocation (LA). The portion of a receiving water’s loading capacity that is attributed either to one of its existing or future nonpoint sources of pollution or to natural background sources. Load allocations are best estimates of the loading, which may range from reasonably accurate estimates to gross allotments, depending on the availability of data and appropriate techniques for predicting the loading. Wherever possible, natural and nonpoint source loads should be distinguished. (h) Wasteload allocation (WLA). The portion of a receiving water’s loading capacity that is allocated to one of its existing or future point sources of pollution. WLAs constitute a type of water quality-based effluent limitation. (i) Total maximum daily load (TMDL). The sum of the individual WLAs for point sources and LAs for nonpoint sources and natural background. If a receiving water has only one point source discharger, the TMDL is the sum of that point source WLA plus the LAs for any nonpoint sources of pollution and natural background sources, tributaries, or adjacent segments. TMDLs can be expressed in terms of either mass per time, toxicity, or other appropriate measure. If Best Management Practices (BMPs) or other nonpoint source pollution controls make more stringent load allocations practicable, then wasteload allocations can be made less stringent. Thus, the TMDL process provides for nonpoint source control tradeoffs. (j) Water quality limited segment. Any segment where it is known that water quality does not meet applicable water quality standards, and/or is not expected to meet applicable water quality standards, even after the application of the technology-based effluent limitations required by sections 301(b) and 306 of the Act. 130.7(c) Each State shall establish TMDLs for the water quality limited segments identified in paragraph (b)(1) of this section, and in accordance with the priority ranking. For pollutants other than heat, TMDLs shall be established at levels necessary to attain and maintain the applicable narrative and numerical WQS with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality. Determinations of TMDLs shall take into account critical conditions for stream flow, loading, and water quality parameters. 130.7(d) must submit water quality limited segments priority list to EP for approval every2 years.

WHAT DECISIONS CAN EPA MAKE? APPROVE DISAPPROVE

EPA’S REVIEW PROCESS Receive State’s submission If complete, date received starts the clock WQS 60 days to approve 90 days to disapprove TMDL 30 days to approve or disapprove

EPA REVIEW PROCESS (cont.) FOR WQS: Review submission for completeness and consistency with 40 CFR 131.5 and 131.6 Use designations consistent with CWA §§ 101(a)(2) and 303(c)(2)? Sufficient scientific/technical basis for omitting any 101(a)(2) uses? Criteria sufficient to protect uses? Supporting methods and analyses? Antideg policy? OAL certification? Sufficient info re: general policies? 131.6 - Minimum requirements for water quality standards submission. The following elements must be included in each State's water quality standards submitted to EPA for review: (a) Use designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the Act.   (b) Methods used and analyses conducted to support water quality standards revisions.   (c) Water quality criteria sufficient to protect the designated uses.   (d) An antidegradation policy consistent with 131.12.   (e) Certification by the State Attorney General or other appropriate legal authority within the State that the water quality standards were duly adopted pursuant to State law.   (f) General information which will aid the Agency in determining the adequacy of the scientific basis of the standards which do not include the uses specified in section 101(a)(2) of the Act as well as information on general policies applicable to State standards which may affect their application and implementation. § 131.5   EPA authority. (a) Under section 303(c) of the Act, EPA is to review and to approve or disapprove State-adopted water quality standards. The review involves a determination of: (1) Whether the State has adopted water uses which are consistent with the requirements of the Clean Water Act; (2) Whether the State has adopted criteria that protect the designated water uses; (3) Whether the State has followed its legal procedures for revising or adopting standards; (4) Whether the State standards which do not include the uses specified in section 101(a)(2) of the Act are based upon appropriate technical and scientific data and analyses, and (5) Whether the State submission meets the requirements included in §131.6 of this part and, for Great Lakes States or Great Lakes Tribes (as defined in 40 CFR 132.2) to conform to section 118 of the Act, the requirements of 40 CFR part 132. (b) If EPA determines that the State's or Tribe's water quality standards are consistent with the factors listed in paragraphs (a)(1) through (a)(5) of this section, EPA approves the standards. EPA must disapprove the State's or Tribe's water quality standards and promulgate Federal standards under section 303(c)(4), and for Great Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or Tribal adopted standards are not consistent with the factors listed in paragraphs (a)(1) through (a)(5) of this section. EPA may also promulgate a new or revised standard when necessary to meet the requirements of the Act. (c) Section 401 of the Clean Water Act authorizes EPA to issue certifications pursuant to the requirements of section 401 in any case where a State or interstate agency has no authority for issuing such certifications.

EPA REVIEW PROCESS (cont.) FOR TMDLs: Review submission for completeness and consistency with 40 CFR 130.2 and 130.7 Sufficient to attain/maintain WQS? Separate TMDLs, WLAs for point sources, and LAs for nonpoint sources and background? Accounts for seasonal variation? Margin of safety? Accounts for critical conditions for stream flow, loading, and water quality parameters?

EPA REVIEW PROCESS (cont.) Complete ESA consultation (WQS) Endangered Species Act §7: federal actions shall not jeopardize threatened or endangered species If cannot complete within 60 days of submittal, may act “subject to the results of consultation”

EPA’S REVIEW PROCESS (cont.) Approve or disapprove Region has authority to approve WQS WQS disapproval requires HQ concurrence Region has authority to approve or disapprove TMDLs

EPA REVIEW PROCESS (cont.) Approved WQS are posted in the National Database of WQS on EPA’s website: http://www.epa.gov/waterscience/standards/wqslibrary Approved TMDLs are posted on state websites (EPA does not publish)

TIPS FOR IMPROVING THE LIKELIHOOD OF EPA APPROVAL Get to know your EPA liaisons Coordinate early and often Ensure T&E species are protected Respond to EPA comments

TIPS FOR IMPROVING THE LIKELIHOOD OF EPA APPROVAL Make sure conclusions are supported by data Clearly identify geographical scope, pollutants and waters covered Include and identify all required elements in submission