In a world in which Republicans and Democrats agree on very little, both sides agree that the Water Quality Standards (WQS) approval process needs improvement. However, there is little agreement on how to improve the process, and the policy whiplash taking place between presidential administrations continues. On February 4, the Environment Protection Agency (EPA) published a memo from Assistant Administrator for the Office of Water (OW) Radhika Fox rescinding a Trump-era memo regarding internal policies and procedures for EPA's approval of state's WQS.
WQS Approval Process
Under the Clean Water Act (CWA), WQS are EPA-approved federal, state, territorial, or authorized tribal laws that describe a water body's desired condition and how the condition is to be protected or achieved. For state or authorized tribe-specific WQS, the CWA requires that the EPA Administrator give an approval decision of the new or revised WQS within 60 days (CWA Section 303[c]).
Of relevance here is what happens when the EPA Administrator determines that the new standard or revision is inconsistent with the CWA: if the EPA Administrator finds the new WQS as inconsistent, the Administrator must notify the state or authorized tribe and specify the changes needed to allow the WQS to meet CWA requirements within 90 days. If the required changes are not made within 90 days after the date of notification, EPA is required to "promptly prepare and publish" a proposed federal WQS (CWA Section 303[c][4]). The federally promulgated WQS remain in place until an appropriate WQS is submitted and EPA approves the replacement and withdraws the federal WQS.
Trump-Era CWQ Memo
In the absence of a definition of the term "promptly" and looking to speed bureaucratic decision-making, the Trump-era EPA sought to speed up the state and authorized tribal WQS process by adding self-imposed time limits. Specifically, the 2019 memo from former OW Assistant Administrator David Ross included a statement that the EPA would interpret section 303(c)(4) as requiring the proposal of a federal water quality standard within 90 days after the failure to adopt the EPA's specified changes. The 2019 memo adopts this 90-day "timer" even while acknowledging that neither the CWA nor the EPA's implementing regulations define the term "promptly." The 2019 memo also states that for the purposes of internal procedure, EPA will interpret "promptly and without undue delay" as requiring EPA to finalize federal WQS within 90 days after proposal.
Latest EPA Memos
The 2022 Fox memo states after considering the Ross memo's interpretation of Section 303(c), EPA has concluded that the interpretation is not supported by the CWA statutory language. The Fox memo reiterates that the CWA does not contain a specified timeline for EPA to propose and finalize WQS, and courts have adopted a case-specific analysis of the term "promptly."
Rather than follow a self-imposed time limit for WQS approvals, the Biden EPA has moved to debottleneck the WQS disapproval process. While rescinding the Ross memo, the EPA released a second memo from Office of Science and Technology (OST) director Deborah Nagle that clarifies the decision-making surrounding WQS submittals. The Nagle memo notes that WQS disapprovals are rare (since 2000, EPA receives around 60 WQS submittals and disapproves six on average per year) as a result of EPA investing significant resources in helping state and authorized tribes to develop new and revised WQS.
Since disapprovals can bind the EPA Administrator to a federal rulemaking if they have to issue a federal WQS, OST and EPA regional offices work closely on WQS disapprovals. Over the years, it had become common practice to elevate all WQS disapprovals to the senior leadership in OW due to the complexity of the issues and frequent litigation. The Nagle memo credits elevating disapprovals to the OW leadership as a primary source for the WQS disapproval backlog and often resulted in EPA regional offices missing CWA statutory deadlines.
In an effort to limit the number of WQS disapprovals that reach OW leadership (and slow down the WQS process), the Nagle memo describes five decision-making principles to guide when a disapproval should be elevated:
- The best available data and evidence indicate that the WQS is not consistent with the requirements of the CWA and EPA's implementing regulations.
- The EPA Region and Headquarters agree that the WQS is not consistent with the requirements of the CWA and EPA's implementing regulations.
- The state or authorized tribe recognizes that the WQS is not consistent with the requirements of the CWA and EPA's implementing regulations.
- Disapproval of the WQS is generally not expected to be controversial or lead to litigation.
- A corresponding, previously approved WQS provision remains in effect for CWA purposes and/or the state or authorized tribe is actively working on the changes necessary to meet the requirements of the CWA and EPA's implementing regulations such that a protective WQS will be in place absent a federal promulgation.
If a WQS disapproval scenario aligns with all five principles, the Nagle memo reasons, the disapproval is unlikely to be complex or controversial, and consultation with OW leadership is likely unnecessary. If potential disapproval aligns with fewer than five of the principles, then OST will elevate the disapproval to OW senior management "as appropriate." This approach is intended to result in a smaller backlog of WQS disapprovals at the OW office.
Given the fact that the Nagle memo states that an average of six disapprovals a year created a "sizeable backlog" of WQS disapprovals, it remains to be seen how treating WQS disapprovals on a more case-by-case basis will limit the number of WQS disapprovals reaching OW leadership and debottleneck the state and authorized tribal WQS approval process.
Arnold & Porter will continue to follow Clean Water Act law and policy.
*Lucas Gorak contributed to this blog post.
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