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EPA Review and Approval of State and Tribal

EPA-823-F-99-012; June 1999

Note: EPA no longer updates this information, but it may be useful as a reference or resource.


The U.S. Environmental Protection Agency is proposing to change the regulation that specifies when new and revised state and tribal water quality standards become effective for Clean Water Act purposes. Under the proposal, such new and revised standards, if adopted after the effective date of the final rule, will not be used for Clean Water Act purposes until approved by EPA, unless such new and revised standards are more stringent than the standards previously in effect. The proposal also provides that standards already in effect at the effective date of the new rule may be used for Clean Water Act purposes, whether or not approved by EPA. The timing of this rulemaking is designed to comply with a settlement agreement requiring EPA to propose such revisions by July 1, 1999 and to promulgate a final rule by April 1, 2000.

Background

EPA's water quality standards (WQS) regulation at 40 CFR Part 131.21 currently provides that State and Tribal WQS are in effect once adopted by the State or Tribe. EPA has 60 days to approve or 90 days to disapprove such WQS. State and Tribal WQS remain in effect, even if EPA disapproves them, until the State or Tribe revises them or EPA promulgates a federal rule to supersede the State or Tribal WQS.

In 1996, a coalition of environmental groups sued EPA, alleging that EPA was violating the CWA by applying new and revised standards adopted by Alaska before EPA had approved the standards (Alaska Clean Water Alliance v. Clark, No. C96-1762R (W.D. Wash.)). On July 8, 1997, the United States District Court for the District of Washington (the Court) issued an opinion in this case holding that, notwithstanding § 131.21(c) of EPA's regulation, the plain meaning of CWA section 303(c)(3) was that new or revised State water quality standards did not become effective for CWA purposes until approved by EPA. The parties to the lawsuit have entered into a settlement agreement under which EPA agreed to propose revisions to 40 CFR 131.21(c) consistent with the Court's opinion no later than July 1, 1999. EPA also agreed to take final action within nine months of this proposal. Today's proposed rule is issued in accordance with this settlement agreement.

Today's Action

EPA's proposed rule, once finalized, will: 1) Delete 131.21(c) and replace it with new language which explains that standards adopted after the effective date of the rule do not become the "applicable" WQS for CWA purposes until approved by EPA, and that "applicable" standards remain the CWA standards until EPA approves State or Tribal revisions or promulgates replacement WQS; 2) Add language, consistent with CWA provision, that allows State standards that are equal to, or more stringent than, the existing applicable standard to become effective upon State adoption and prior to EPA approval; and, 3) Replace EPA's existing annual Federal Register notice of WQS approval actions with establishment of a CWA WQS docket. Any WQS which went into effect under the old rule would remain in effect for CWA purposes, whether or not approved by EPA.

EPA's proposed rule only addresses a single administrative aspect of the WQS approval process (i.e., the timing of the "effectiveness" of State WQS under the CWA). There are no revisions to existing submission requirements and no revisions to EPA's standards for review.


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