EPA has recently proposed revisions to the manner in which it reviews and approves state water quality standards. It is widely considered a reaction to several problems the agency faced after environmentalists successfully sued to force the promulgation of numeric nutrient limits for Florida waters. The proposed rule, slated for publication in the Federal Register Sept. 4, includes specific conditions for when EPA triggers a Clean Water Act (CWA) provision and exactly when the administrator makes a “determination” that a state's existing rules do not meet CWA standards.
The proposed rule would also codify flexibility such that regulators can set “aspirational” standards for waterbody health and issue broad variances if the goals prove unattainable in the short term, similar to the agency’s approach in Montana. According to the EPA, agency memoranda or documents articulating areas where states’ WQS may need improvements could be been construed to be official determinations that would then require the EPA to propose and promulgate federal WQS for such states. In its justification, the EPA stated that it is essential that the agency has the ability to provide feedback, and that states and tribes have the opportunity to consider and evaluate the Agency’s views, without fear of litigation.
The EPA proposal would also establish new minimum standards for states' anti-degradation rules, revisions to compliance schedule policies, and the triennial review of state water rules.