EPA to Propose Target Changes to Water Quality Standards Regulation

In order to implement the requirements of the Clean Water Act, the Environmental Protection Agency created the Federal Water Quality Standards regulations, found at 40 CFR Part 131.  Water Quality standards including but not limited to Total Maximum Daily Loads (TMDLs) and National Pollutant Discharge Eliminations System (NPDES) permits, are the foundation for water quality-based pollution control systems.

The EPA has announced that in the Summer of 2011 they expect to publish a proposed rule to clarify six areas of concern under the Clean Water Act including:  Antidegradation implementation methods; Administrator’s determination; Designated uses; Variances to water quality standards; Triennial review scope and requirements; and Updating the regulation to reflect court decisions.  The goal of these rule changes will be to improve water quality standards effectiveness and help to restore and maintain the chemical, physical and biological intergrity of US waters.

Current regulations allow states and authorized tribes to identify the method to implement antidegradiation polices but does not specification the implementation methods.  Furthermore, under 40 CFR 131.13, states and authorized tribes are allowed to adopt variances as general policies for applying and implementing their water quality standards.  However, the regulation does not define, describe , or list requirements for use variances.   The EPA is therefore considering modifying the regulation to specify that antidegradation implementation methods must meet specific minimum requirements and establishing regulatory requirements for variances to ensure proper use of variances and reduce the possibility of inappropriate use.

Finally, in order to update the regulations to reflect current case decisions, the EPA is considering:

• revising the definition of "water quality standard" to more clearly define which of state or tribal provisions constitute water quality standards that need to be submitted to EPA for review and approval. 
• specifying that authorizing provisions for compliance schedules for implementing water quality-based effluent limits in NPDES permits must be adopted as part of a state's or tribe's water quality standards and be submitted to the EPA for review and approval
• clarifying that states and authorized tribes must submit EPA records of public participation, such as a public comment, that has occurred in reviewing and revising state or tribal water quality standards.

If you have questions on this issue or any other Environmental Law issues, please contact us at (812) 426-1231.


In a ruling issued June 20, 2011, the U.S. Supreme Court unanimously rejected a lawsuit filed by six states and several private land trusts in an effort to force coal-burning power plants to cut emissions through the use of public nuisance lawsuits. The lawsuit sought to have a federal court order the utilities to cut their carbon dioxide emissions. The ruling overturned a decision by the Second Circuit U.S. Court of Appeals that the lawsuit filed in 2004 claiming five electric utilities created a public nuisance by contributing to climate change could move forward.

The question before the Court was who decides whether and how to regulate carbon dioxide emissions from power plants, the federal agency to which Congress delegated authority in this area (the EPA), or the Federal Courts. The Court held that the federal Clean Air Act and actions by the EPA "displace" any federal common law right under a public nuisance theory to seek abatement of carbon dioxide emissions from fossil-fuel fired power plants.

The Court stated, "The test for whether congressional legislation excludes the declaration of federal common law is whether the statute 'speaks directly to the question' at issue." Citing the 2007 decision in Massachusetts v. EPA, the Court added, "Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the [Clean Air] Act. And we think it equally plain that the Act 'speaks directly' to emissions of carbon dioxide from the defendants' plants."

The Court found it appropriate for Congress to designate an expert agency to be the primary regulator of greenhouse gas emissions. "Federal judges lack the scientific, economic, and technological resources an agency can utilize in coping with issues of this order," the court held. "The critical point is that Congress has vested decision-making authority in the EPA," Justice Ginsburg said in summarizing the ruling from the bench. The Clean Air Act "provides a means to seek limits on emissions of carbon dioxide from domestic power plants," Ginsburg wrote. "We see no room for a parallel track."

The Court was careful to note that it was not deciding that global warming is a problem. The Court also noted that the EPA will issue a final ruling by May 2012 on whether it will set limits on emissions of carbon dioxide from power plants.  The Court added however, even if the EPA decides not to impose limits under the Clean Air Act, the courts still could not hear “public nuisance” claims under a general federal common-law theory. 

The ruling involved the most important climate change case to reach the Supreme Court since its landmark 2007 ruling in Massachusetts v. EPA that authorized the EPA to regulate greenhouse emissions.

The Supreme Court case is American Electric Power Co., et al., v. Connecticut, et al. (docket 10-174) decision.  http://www.law.cornell.edu/supct/html/10-174.ZS.html

If you have any questions regarding this or any other environmental law issues, please contact the author, Christopher L. Lucas.