Antidegradation Implementation: Federal Framework and Indiana Rulemaking Process

Presented August 27, 2008

What is Antidegradation?

• • • • A regulatory policy designed to prevent deterioration of existing levels of good water quality unless the action responsible for the deterioration provides a social or economic benefit A part of federal water quality requirements – Federal antidegradation policy is found at 40 CFR §131.12 – Clean Water Act’s (CWA) antidegradation policy is found in section 303(d) (and further detailed in federal regulations) Not a "no growth" policy, but a policy that provides for the protection of Hoosiers and their environment A policy that allows public input on decisions to be made on important environmental actions

Clean Water Act Requirements for Water Quality Standards

• • • Designated uses – States must identify and designate how each waterbody in the state is used Water quality criteria – States must set specific numeric and/or narrative criteria necessary to protect each designated use Antidegradation policy – States must develop rules & implementation procedures • • to protect existing uses to prevent clean waters from being degraded, unless the action responsible for the deterioration provides a social or economic benefit

Water Quality Standards Federal Regulation

• Requires a three-tiered antidegradation program – Section 131.13(a)(1), or "Tier 1" • protecting "existing uses" • – Section 131.12(a)(2), or "Tier 2“ • • provides absolute floor of water quality in all waters of the United States High Quality Waters (HQWs) water quality exceeds that necessary to protect the section 101(a)(2) goals (fishable & swimmable) • water quality may be lowered under certain conditions but never below the level necessary to fully protect the "fishable/swimmable" & other existing uses – Section 131.12(a)(3), or "Tier 3" • • Outstanding National Resource Waters (ONRWs) only temporary reduction allowed in water quality

Federal Requirements: Three Tiers of Water

Indiana’s OSRWs (Tier 2.9)

• Waterbodies with unique or special ecological, recreational, or aesthetic significance (327 IAC 2-1-9) • Has implementation requirements more stringent than Tier 2, but somewhat less stringent than the prohibition against any lowering of water quality in Tier 3 – EPA accepts this additional tier in State antidegradation policies—more stringent application of the Tier 2 provisions and, therefore, permissible under section 510 of the CWA

“Tiering” of Indiana Waters

Antidegradation Requirement

IC 13-18-3-2, SEA 431(2000) • • Definition of significant lowering of water quality that includes a de minimis quantity of additional pollutant load: – for which a new or increased permit limit is required; – below which antidegradation implementation procedures do not apply Significant lowering of water quality allowed in OSRWs or Exceptional Use Water (EUW) if: – there will be an overall improvement in water quality by: • implementation of a water quality project in the watershed of the OSRW or the EUW • payment of a fee, not to exceed $500,000 based on the type and quantity of increased pollutant loadings

History of Past Rulemaking

• • • 1970s – Indiana’s Stream Pollution Control Board adopted rules that established an antidegradation policy for all waters as part of the Water Quality Standards 1997- Indiana’s Water Pollution Control Board adopted, as part of the Great Lakes Initiative, rules that established antidegradation implementation procedures for the Great Lakes Basin ONLY 1997- 2002 – IDEM made various attempts to establish a workgroup to address antidegradation issues – these attempts failed to resolve issues

History of Past Rulemaking

• • • • November 6, 2002 – first meeting of Antidegradation OSRW workgroup set up by Triennial Review Steering Committee March 1, 2003 – first notice of rulemaking, extensive comments received and responses developed, however, some felt the Agency’s responses were insufficient March 2003 - April 2005 – workgroup meetings held through December 2004 April 1, 2005 – second notice of rulemaking, comment period April 1 - May 30, 2005, responses to comments never prepared

History of Present Rulemaking

• IDEM determined the April 1, 2005 draft would be difficult to implement based on: – extensive amount of comments received – internal review by staff responsible for implementing antidegradation procedures • April 2005 - July 2007 – internal IDEM, OWQ workgroup met to take a fresh look at antidegradation implementation procedures and develop revised concept

History of Present Rulemaking

• • August - October 2007 – IDEM presented revised antidegradation concept to interested parties including: – Representatives of Northwest IN area interest groups – Representatives from industry – Representatives from environmental interest groups – Representatives from municipalities – Water Pollution Control Board Follow-up meetings held to receive feedback on the concept

Recent Activity

• • • • IDEM developed initial draft rule language – Used framework described in revised antidegradation concept and took into consideration feedback from presentations and follow-up Governor’s Stakeholder Meeting held March 7, 2008 – IDEM presented ambitious rulemaking schedule Revised draft rule language circulated March 14, 2008 – Took into consideration feedback on the revised antidegradation concept, was developed to form a baseline for discussion IDEM met with individual interest groups upon request

Recent Activity

• Workgroup established – Includes representatives from industry, environmental interest groups, and municipalities – Initial workgroup meeting held April 29, 2008 – Interest groups presented feedback on March 14, 2008 draft • Revised draft rule language developed June 5, 2008 – Took into consideration feedback from April 29, 2008 workgroup meeting, was developed to form an improved baseline for discussion

Recent Activity

• • Second workgroup meeting held June 25, 2008 – IDEM presented reasons for draft rule language changes and some technical background information Workgroup established subgroup – Four members each from industrial, environmental, and municipal interests selected to represent their larger constituent interest groups – Goal is that members, on behalf of their constituent interest groups, provide the agency with feedback and direction on specific topics – Exact rule language is discussed and options developed for unresolved issues

Recent Activity

• Workgroup identified and prioritized topics for subgroup meeting discussion: • Applicability • Water quality improvement projects • Exemptions • Antidegradation demonstrations • de minimis • Public notice/public comment • First subgroup meeting held July 15, 2008 – Worked through applicability and started work on exemptions • Second subgroup meeting held August 12, 2008 – Reviewed first meeting conclusion as captured by IDEM in revised draft rule language dated August 4, 2008 – Continued work on exemptions

Next Steps

• Next subgroup meeting set for September 16, 2008 – topic for discussion: de minimis • Subgroup will continue to meet and work through topics • Goal is to work through all topics by the end of the 2008 calendar year

Questions?

Contact information Martha Clark Mettler [email protected]

317-232-8402