Healy Enviro Law Fall 2012.docx

A hotspots non point source not complying etc d water

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a. Hotspots, non point source not complying, etc. d. Water Quality Standards (WQS) i. Quick facts: 1. WQS was health based and failed. CWA added tech-based limits but kept the WQS regime in place (to supplement NPDES regime). 2. WQS are more important than 20 years ago because they provide more precise limits. 3. WQSs are analogous to SIPs a. WQSs are defined by the states and reviewed by EPA, revised every 3 years. b. EPE defines federal standards only as last resort (where the state fails to adopt lawful standards). ii. 3 Components of WQSs [established segmentally] 1. Use Designation a. Minimum requirements: i. State is barred from defining waste assimilation/transport as use. ii. Basic Minimum – state must designate a use that is at least as protective as the water’s current attained use (thus a non-degradation policy). iii. State must identify the use currently attained (this is key) 1. If use is less than fishable/swimmable, then state must perform a use attainability analysis (UAA, which may include chemical, biological and economic factors). iv. Upgrading Uses [change to more productive use] 1. Pollution limits result in a new, more productive use of Water; which new use must be designated when WQSs are revised. 2. States could also impose these uses themselves (state has discretion to designate more protective uses). 3. UAA must demonstrate that fishable/swimmable can be attained. v. Downgrading Uses (less protective) 1. Assuming the use has not been attained: 33
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a. UAA shows that fishable/swimmable cannot be attained, if downgrade is be less than fish/swim (justify decision with UAA). b. This downgrade is defined by limits in nondegradation policy. b. Idaho Mining i. Holding highlights when EPA may determine uses: 1. If EPA determines the state standard does not comply with the CWA or the state refuses to accept EPA proposed revisions, or 2. State doesn’t set standard and EPA thinks a new standard is necessary. 2. Water Quality Criteria a. ***Note: Most important WQS component because it drives TMDLs due to its numerical basis. b. Definition: numerical concentrations that help determine the use designations. i. Criteria define ambient requirements for water on pollutant by pollutant basis needed to permit the most protective use designated for the water segment. 1. Criteria are numeric (preferred) or narrative (more difficult to apply). a. 1987 act requires numeric criteria for toxic pollutants in some circumstances. 2. Criteria may include conductivity (which measures dissolved salts) a. This has been important with the Coal Companies. c. EPA reviews criteria to ensure they are sufficient to permit the designated use. i. EPA can accept alternative criteria if based on scientific support. 3. Anti-Degradation Policy a. Less important than water quality criteria. b. Substance of policy is determined by quality of waters (and there is less state discretion): i. Tier 1 (less clean): applies to all waters and protects existing in-stream uses 1. Only looks at the use 34
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ii. Tier 2 (high quality waters): if water quality (as measured by water quality criteria) is better than needed to support fishing and swimming, no
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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