Transcript Antidegradation Implementation: Federal Framework and Indiana Process Presented March 7, 2008 What is Antidegradation? • A regulatory policy designed to prevent deterioration of • existing levels of good.

Antidegradation Implementation:
Federal Framework
and
Indiana Process
Presented
March 7, 2008
What is Antidegradation?
• A regulatory policy designed to prevent deterioration of
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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.
– The Clean Water Act’s (CWA) antidegradation policy is found in
section 303(d) (and further detailed in federal regulations)
• Not a "no growth" rule.
• 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 required to 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
Federal History of Antidegradation
• Concept established in 1968 by U.S. Department
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of Interior.
First policy statement included in EPA's first
Water Quality Standards Regulation (40 CFR
130.17,40 F.R. 55340-41, November 28, 1975).
Refined & re-promulgated as part of the current
program regulation published on November 8,
1983 (48 F.R. 51400, 40 CFR 131.12).
Based on the spirit, intent, and goals of the CWA
Section 101(a): "… restore and maintain the
chemical, physical and biological integrity of the
Nation's waters."
Federal Regulatory Background
• Antidegradation explicitly incorporated in the
CWA through:
– a 1987 amendment codified in section 303(d)(4)(B) requiring
satisfaction of antidegradation requirements before making
certain changes in NPDES permits; and
– the 1990 Great Lakes Critical Programs Act codified in CWA
section 118(c)(2) requiring EPA to publish Great Lakes water
quality guidance including antidegradation policies and
implementation procedures.
• Antidegradation policies & implementation
methods are required to be included in a State's
water quality standards.
Summary of Federal Rule
(40 CFR §131.12)
• States to develop and adopt a statewide antidegradation policy and
identify the methods for implementing such policy.
• The antidegradation policy and implementation methods should be
consistent with the following:
– Existing instream water uses and the level of water quality necessary to
protect the existing uses shall be maintained and protected.
– Where the quality of the waters exceed levels necessary to support
propagation of fish, shellfish, and wildlife and recreation in and on the
water, that quality shall be maintained and protected unless the State
finds, after full satisfaction of the intergovernmental coordination and
public participation provisions of the State's continuing planning
process, that allowing lower water quality is necessary to accommodate
important economic or social development in the area in which the
waters are located. In allowing such degradation or lower water quality,
the State shall assure water quality adequate to protect existing uses
fully.
40 CFR §131.12 (continued)
– State shall assure that there shall be achieved the highest statutory and
regulatory requirements for all new and existing point sources and all
cost-effective and reasonable best management practices for nonpoint
source control.
– Where high quality waters constitute an outstanding national resource,
such as waters of National and State parks and wildlife refuges and
waters of exceptional recreational or ecological significance, that water
quality shall be maintained and protected.
– In those cases where potential water quality impairment associated
with a thermal discharge is involved, the antidegradation policy and
implementing method shall be consistent with section 316(a) of the Act.
Water Quality Standards
Federal Regulation
• Requires a three-tiered antidegradation program
– Section 131.13(a)(1), or "Tier 1,"
• protecting "existing uses,"
• provides the absolute floor of water quality in all waters of
the United States
– Section 131.12(a)(2), or "Tier 2“
• 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
Protection of Tier 1 Waters
• Specified in - 40 CFR 131.12(a)(1)
• Maintain and protect existing uses and water
quality conditions necessary to support uses.
– Existing use to have occurred since Nov. 28, 1975 or
– Water quality is suitable to allow existing uses to
occur
• Where an existing use is established, it must be
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protected even if it is not a designated use
Applicable to all waters
Protection of HQWs (Tier 2)
• Specified in - 40 CFR 131.12(a)(2)
• Includes waters whose quality exceeds that necessary to protect the
section 101(a)(2) goals of CWA, regardless of use designation
• Before any lowering of water quality occurs, there must be an
antidegradation review consisting of:
– a finding that it is necessary to accommodate important
economical or social development in the area in which the
waters are located
– full satisfaction of all intergovernmental coordination and public
participation provisions
– assurance that the highest statutory and regulatory
requirements for point sources, including new source
performance standards, and best management practices for
nonpoint source pollutant controls are achieved
• Water quality can never be lowered to a level that interferes with
existing and designated uses.
Protection of ONRWs (Tier 3)
• Specified in - 40 CFR 131.12(a)(3)
• Only temporary lowering of water quality
allowed
• Include:
– nation’s highest quality waters
– waters of exceptional ecological significance
• ONRW classification made by States
Indiana’s OSRWs (Tier 2.9)
• Include waterbodies that have unique or special
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ecological, recreational, or aesthetic significance
(327 IAC 2-1-9).
Tier 2.9 is an application of the antidegradation
policy that has implementation requirements
that are more stringent than for 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 because it is more stringent
application of the Tier 2 provisions of the
antidegradation policy and, therefore, permissible
under section 510 of the CWA
“Tiering” of Indiana Waters
Antidegradation Requirements of IC
13-18-3-2 (a/k/a SEA 431)
• A 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 five hundred thousand
dollars ($500,000) based on the type and quantity of
increased pollutant loadings
General History of Past IN
Antidegradation Rulemaking
• 1970s – Indiana’s Stream Pollution Control Board
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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 work on antidegradation issues – these
attempts failed to resolve issues.
General History of Past IN
Antidegradation Rulemaking
• November 6, 2002 – first meeting of Antidegradation•
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OSRW workgroup set up by the Triennial Review
Steering Committee
March 1, 2003 - first notice of rulemaking – extensive
comments were received and responses developed,
however, some felt the Agency’s responses to the first
notice comments were insufficient.
March 2003 – April 2005 – workgroup meetings were
held through December 2004.
April 1, 2005 – second notice of rulemaking. The
comment period was open from April 1, 2005 through
May 30, 2005. Responses to the comments were never
prepared.
General History of Present IN
Antidegradation Rulemaking
• Considering:
– the extensive amount of comments received;
– an internal review by staff who would be responsible
for implementing antidegradation procedures;
IDEM determined the April 1, 2005 second
noticed draft would be difficult to implement
• April 2005 – July 2007 – internal IDEM, OWQ
workgroup met to take a fresh look at
antidegradation implementation procedures and
develop revised concept
General History of Present IN
Antidegradation Rulemaking
• August 2, 2007 – presentation of revised antidegradation concept
to interested parties in NW IN at Northwest IN Regional Planning
Commission (NIRPC)
• Attendees included:
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Kay Nelson, NW IN Forum
Lee Botts, the Alliance for the Great Lakes
Kathy Luther; Dan Gardner; Kyle Nelson; Jackie Anders, NIRPC
Brad Klein, Environmental Law and Policy Center
John Ross, NiSource
Kevin Doyle, Mittal Steel
Tom Anderson and Charlotte Read, Save the Dunes
Dave Behrens, U.S. Steel
Linda Wilson, BP
Jennifer Gadzala, Town of Chesterton
Glenn Pratt via telephone
Various IDEM staff
General History of Present IN
Antidegradation Rulemaking
• August 15, 2007 - presentation of revised
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antidegradation concept to industry reps.
August 22, 2007 – follow-up on presentation of revised
antidegradation concept with industry reps.
September 28, 2007 – additional follow-up on
presentation of revised antidegradation concept with
industry reps.
Key attendees included:
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Patrick Bennett, Indiana Manufacturers Association
Neil Parke, Eli Lilly
John Humes, Hoosier Energy
Tim Lohner, American Electric Power
Nat Noland, Indiana Coal Council
Vince Griffin, Indiana Chamber of Commerce
General History of Present IN
Antidegradation Rulemaking
• September 12, 2007 - presentation of
revised antidegradation concept to Water
Pollution Control Board.
• Key Concepts:
– de minimis
– default antidegradation limits
– public notification process
General History of Present IN
Antidegradation Rulemaking
• October 17, 2007 - presentation of revised
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antidegradation concept to environmental interest
group reps.
November 21, 2007 – follow-up on presentation of
revised antidegradation concept with environmental
interest group reps.
Key attendees included:
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Tim Maloney, Hoosier Environmental Council
Rae Schnapp, Hoosier Environmental Council
Bowden Quinn, Sierra Club
Jeff Hyman, Conservation Law Center
Brad Klein, Environmental Law & Policy Center
Charlotte Read, Save the Dunes
Albert Ettinger, Environmental Law & Policy Center
General History of Present IN
Antidegradation Rulemaking
• October 29, 2007 - presentation of revised
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antidegradation concept to municipality reps.
Key attendees included:
– Jodi Perras, representing Indiana Water Environment Association
and the City of Indianapolis
– Fred Andes, Barnes and Thornburg
– Brett Barber, Greeley-Hansen
Current Activity on Present IN
Antidegradation Rulemaking
• IDEM has developed draft rule language
– The draft used the framework described in
the revised antidegradation concept and took
into consideration feedback from the
presentations and follow-up meetings
– The draft language is currently being
reviewed internally
• Governor’s Stakeholder meeting
– This meeting is now – March 7, 2008
Next Steps on Present IN
Antidegradation Rulemaking
• IDEM will prepare a notice of rulemaking
• IDEM will establish a workgroup
– The workgroup will include representatives
from industry, environmental interest groups,
and municipalities
– Goal is to hold the first workgroup meeting in
April 2008
Proposed Workgroup Process
• The number of workgroup meetings will
be limited and each meeting will target
discussion on a key concept.
• Key Concepts to discuss:
– de minimis – April 2008
– default antidegradation limits – May 2008
– public notification process – June 2008
Proposed Rulemaking Timeline
(best case scenario)
• Second Notice publication: Goal – July 2008
• Comment period – minimum 30 days so would
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end by: Goal - August 2008
Respond to comments – dependant on the
number and nature of comments received complete by: Goal – September 2008
Preliminary Adoption: Goal – October 2008
Third Notice – may require 21 day comment
period - publication: Goal – November 2008
Final Adoption – Goal – December 2008