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Water Quality Regulation Traditional WQ Regulation under CWA State control: designated uses and classifications

Water Quality Regulation Traditional WQ Regulation under CWA State control: designated uses and classifications 401 certificates: PUD No. 1 of Jefferson County v. Washington Dept. of Ecology (1994) Interstate effects: Arkansas v. Oklahoma (1992) Anti-degradation requirement

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Water Quality Regulation Traditional WQ Regulation under CWA State control: designated uses and classifications

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  1. Water Quality Regulation • Traditional WQ Regulation under CWA • State control: designated uses and classifications • 401 certificates: PUD No. 1 of Jefferson County v. Washington Dept. of Ecology (1994) • Interstate effects: Arkansas v. Oklahoma (1992) • Anti-degradation requirement • More Recent Planning Efforts • Mandated water quality planning: WQ criteria and standards • TMDLs • ICSs for toxics

  2. Water Quality-based Regulation • 401 certificates: PUD No. 1 of Jefferson County v. Washington Dept. of Ecology (1994) • Who must obtain a “401 certificate.” What does the certificate certify? • What was the basis of the dispute in this case? • Interstate effects:Arkansas v. Oklahoma (1992) • Why was Oklahoma upset with Arkansas? • How did EPA resolve this dispute and why? How did the Supreme Court resolve it?

  3. Water Quality-based Regulation • What are the differences between these things? • “designated uses” of waterways • water quality “criteria” • water quality “standards”

  4. Designated Uses and Anti-degradation COLORADO RIVER BELOW LAKE J. B. THOMAS State designated use: High Aquatic Life Aquatic Life Use Subcategory: High. Habitat Characteristics: highly diverse. Species Assemblage: usual association of regionally expected species. Sensitive Species: present. Diversity: high. Species Richness: high. Trophic Structure: balanced to slightly imbalanced. COLORADO RIVER BELOW LAKE J. B. THOMAS State designated use: Contact Recreation Recreational activities involving a significant risk of ingestion of water, including wading by children, swimming, water skiing, diving, and surfing.

  5. How are WQ criteria and standards established?

  6. CWA Section 303 process: • State proposes water quality standards to EPA • If EPA approves them (using EPA criteria), EPA promulgates federal regulations establishing those standards. • Then state identifies its “impaired waters” 303(d)(1)(A): “Each State shall identify those waters within its boundaries for which the effluent limitations … are not stringent enough to implement any water quality standard applicable to such waters.”

  7. CWA Section 303 process: 4. Establish TMDLs for impaired waters. 303(d)(1)(C): Each State shall establish for the waters identified in paragraph (1)(A) of this subsection … the total maximum daily load…. Such load shall be established at a level necessary to implement the applicable water quality standards 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.

  8. CWA Section 303 process: • 5. Submit list of impaired waters and proposed TMDLs to EPA for approval. • 6. EPA either: • Approves TMDLs and state implements limits in future permits, or • Disapproves TMDLs and establishes TMDLs for the state • 1997 Guidelines – litigation • 33,000 TMDLs; 20,000 water bodies; avg. 5 year court-ordered timetable

  9. 7/13/00Rule on TMDL Process • Final rule amended the TMDL process by: • Requiring states to submit more specific TMDL/impaired waters information • Require states to include “implementation plans” in their submissions • Require states to impose nonpoint source controls • Strengthen EPA’s ability to step and control the TMDL process when state proposals are deemed inadequate.

  10. 2000 Rule – Chronology 7/13/00: TMDL Final Rule published 7/14/00: Military appropriations bill signed. Bill contained “rider” prohibiting EPA to spend money on new rule. Bill expired 9/30/01. 6/14/01: NAS study supportive of TMDL effort raises specific questions about its implementation. 8/09/01: EPA proposes to delay effective date of final rule until 4/30/03; seeks comments on “better ways to construct the TMDL program.”

  11. Individual Control Strategies CWA 304(l) Individual control strategies for toxic pollutants (1) [E]ach State shall submit to the Administrator for review, approval, and Implementation under this subsection -- (A) a list of those waters within the State which after the application of effluent limitations … cannot reasonably be anticipated to attain or maintain … water quality standards … due to toxic pollutants…; (B) a list of all navigable waters in such State for which the State does not expect the applicable [water quality] standard …will be achieved …due entirely or substantially to discharges from point sources of any toxic pollutants …

  12. Individual Control Strategies, CWA 304(l) • For “A” list and “B” list, states must also submit to EPA: • (1) information about “the specific point sources discharging any such toxic pollutant which is believed to be preventing or impairing such water quality..” • (2) “an individual control strategy which the State determines will produce a reduction in the discharge of toxic pollutants from point sources …sufficient, in combination with existing controls on point and nonpoint sources of pollution, to achieve the applicable water quality standard …”

  13. DISCHARGE PROHIBITION CWA SECTION 301(a): Except as in compliance [various permitting provisions of the Act including Section 402s and 404 of the Act] of this title, the discharge of any pollutant by any person shall be unlawful.

  14. “Discharge” Definition CWA Section 502:  (12) The term ''discharge of a pollutant'' and the term ''discharge of pollutants'' each means (A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft.

  15. “Point source” Definition CWA Section 502: (14) The term ''point source'' means any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged. This term does not include agricultural stormwater discharges and return flows from irrigated agriculture.

  16. “Pollutant” Definition CWA Section 502: (6) The term ''pollutant'' means dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water...

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