AMSA March 2002 Legal Perspectives

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"Antidegradation is not a 'no growth' rule and was never designed or intended to be such. [States] may decide that some lowering of water quality in 'high-quality waters' is necessary to accommodate important economic or social development."
EPA Water Quality Standards Handbook, 2d Ed., at 4-8 (1994)

On March 21, 2002, AMSA motioned to intervene in a precedent-setting Clean Water Act (CWA) antidegradation case. Ohio Valley Environmental Coalition, et al., v. Whitman, Civ. No. 3:02-CV-59 (S.D. WV, Jan. 23, 2002). In Ohio Valley, environmental groups are challenging the Environmental Protection Agency's (EPA's) approval of West Virginia's antidegradation implementation procedures. The groups allege that EPA's decision to approve the implementation procedures violated the Agency's CWA statutory and regulatory responsibilities. The challengers specifically question 19 elements of the state procedures, including important publicly owned treatment works (POTW) exemptions from antidegradation review.

The genesis of the environmental groups' lawsuit lies in a lengthy and very public policy battle on growth and development between West Virginia industries, municipalities, and citizen groups. If the Ohio Valley plaintiffs are successful in court, the case could have potential adverse impacts for POTWs nationwide - as West Virginia based its antidegradation implementation procedures on those in effect in other states.

This issue of Legal Perspectives reviews federal and state antidegradation policy. It also discusses the emerging influence of antidegradation - a historically quiet part of CWA water quality standards (WQS) review and permitting.

Federal Antidegradation Policy
CWA § 303(c) lays the foundation for state WQS. EPA's implementing regulations require state WQS to incorporate several minimum elements, including:

1. Designated uses to set the water quality goals for each waterbody;
2. Water quality criteria to define the minimum conditions needed to achieve the designated uses; and
3. An antidegradation policy, which specifies the framework for making changes in water quality.

40 C.F.R. § 131.6. The federal antidegradation policy requires all "States to develop and adopt a statewide antidegradation policy and identify the methods for implementing the policy." 40 C.F.R. § 131.12. State antidegradation policies and implementation procedures must ensure that:

1. Water quality is maintained to support existing uses (Tier 1). "Existing uses" are those actually attained in the waterbody on or after November 28, 1975, whether or not they are included in the state WQS. See 40 C.F.R. § 131.3(e).
2. Water quality is maintained in high quality waters (Tier 2). High quality waters are those where the water quality is better than the minimum necessary to support the CWA's fishable/swimmable goals. Downgrades in high quality waters are allowed when necessary for important economic or social development. Such waters, however, can not fall below the fishable/swimmable baseline.
3. Water quality is maintained in outstanding natural resource waters (ONRWs) (Tier 3). Essentially, any permanent downgrade in water quality in ONRWs is prohibited.

40 C.F.R. § 131.12(a)(1)-(3); see also EPA Water Quality Standards Handbook: Second Edition, Chapter 4, Antidegradation, EPA 823-B-94-005 (Aug. 1994) (Handbook).   Like all regulations, state antidegradation policies must be at least as stringent as - but can be more stringent than - the federal policy. State policies must be submitted to EPA for review. See 40 C.F.R. § 131.20(c). Most state antidegradation policies look very much like 40 C.F.R. § 131.12.

The antidegradation protection afforded to Tier 2 waters has been particularly controversial because "[i]t is often interpreted incorrectly as an absolute prohibition on lowering of water quality in high quality waters." Water Quality Guidance for the Great Lakes System: Supplementary Information Document (SID), EPA 820-B-95-001, Section VII, A, 1. EPA clarifies, however, that "such a prohibition would amount to a 'no growth' policy which is not consistent with EPA's position as expressed in the regulations." Id. To counterbalance the perceived stringency of Tier 2 protections, EPA accepts state antidegradation policies with a Tier 2 ½. This mid-tier sets requirements more stringent than for high-quality Tier 2 waters, but less stringent than the prohibition against any lowering of water quality in Tier 3 ONRWs. Handbook at 4-2. EPA notes that the "Tier 2 ½ approach allows States to provide a very high level of water quality protection without precluding unforeseen future economic and social development considerations." Id.

EPA's 1998 Water Quality Standards Advance Notice of Proposed Rulemaking (WQS ANPRM) contains a comprehensive overview of the federal antidegradation policy. 63 Fed. Reg. 36,742 (July 7, 1998). While the ANPRM has been put on the shelf, it contains surprisingly prescient statements about antidegradation's emerging presence. The ANPRM notes that antidegradation "is not being used as effectively as it could be" and that it is "significantly underused as a tool to attain and maintain water quality and plan for and channel important economic and social development that can impact water quality." Id. at 36,779-36,780.

State Implementation Procedures
The required state antidegradation implementation procedures contain the real details of state antidegradation approaches. Many state procedures include important exemptions from antidegradation review to accommodate needed POTW growth and expansion. For example, the implementation procedures challenged in Ohio Valley include exemptions: 1) for de minimis activities resulting in less than a 10 percent reduction in the water segment's assimilative capacity; 2) for proposed new or expanded discharges from POTWs to alleviate public health concerns; and 3) for POTW expansions or improvements.

While it is EPA's "longstanding policy" that the state antidegradation implementation procedures be submitted to EPA for review, they frequently are not. Id. at 36,781. Notably, in the 1998 WQS ANPRM, EPA expressed its desire to amend 40 C.F.R. § 131.20(c) to clearly require state submission of implementation procedures to EPA. Id. This is an important point, as the Ohio Valley case concerns challenges not to West Virginia's antidegradation policy - but to EPA's approval of the State's implementation procedures - something that may not actually be required by current regulations.

The litigation over West Virginia's procedures will test antidegradation concepts important to POTW operations. The State's procedures are available on AMSA's Member Pipeline at http://www.amsa-cleanwater.org/private/littrack/littrack.cfm#12. AMSA members may want to compare West Virginia's antidegradation procedures to their own state's to better understand the case's potential to set adverse precedent for their own POTW's operation or expansion.

The Future of Antidegradation
The full power of antidegradation review will come into its prime in the next few years. This development is due in large part to stakeholder perception that our nation is not moving quickly enough to achieve water quality goals. What will be important for POTWs, as antidegradation policies and implementation procedures mature, is to ensure that they advance in a manner that recognizes there will be real world need for future POTW growth and expansion.

 

© 2002 Association of Metropolitan Sewerage Agencies

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Legal Perspectives is a monthly publication of the Association of Metropolitan Sewerage Agencies (AMSA).

Founded in 1970, AMSA represents the interests of over 270 of the nation's POTWs. AMSA members serve the majority of the sewered population in the United States and collectively treat and reclaim over 18 billion gallons of wastewater everyday.

We welcome your comments or questions on Legal Perspectives. Please contact Alexandra Dapolito Dunn, General Counsel, AMSA at adunn@amsa-cleanwater.org or 202/533-1803.