Antidegradation Antidegradation Implementation: Federal Implementation: Federal

Framework Framework andand

Indiana ProcessIndiana Process

PresentedPresented

March 7, 2008March 7, 2008

What is Antidegradation?What is Antidegradation?

• A regulatory policy designed to prevent deterioration A regulatory policy designed to prevent deterioration of existing levels of good water quality unless the of existing levels of good water quality unless the action responsible for the deterioration provides a action responsible for the deterioration provides a social or economic benefit. social or economic benefit.

• A part of federal water quality requirements. A part of federal water quality requirements. – Federal antidegradation policy is found at 40 CFR §131.12. Federal antidegradation policy is found at 40 CFR §131.12. – The Clean Water Act’s (CWA) antidegradation policy is found The Clean Water Act’s (CWA) antidegradation policy is found

in section 303(d) (and further detailed in federal regulations)in section 303(d) (and further detailed in federal regulations) • Not a "no growth" rule.Not a "no growth" rule.• A policy that allows public input on decisions to be A policy that allows public input on decisions to be

made on important environmental actions.made on important environmental actions.

Clean Water Act Requirements Clean Water Act Requirements for Water Quality Standardsfor Water Quality Standards

• Designated UsesDesignated Uses– states must identify and designate how each waterbody in states must identify and designate how each waterbody in

the state is used. the state is used.

• Water quality criteriaWater quality criteria – states must set specific numeric and/or narrative criteria states must set specific numeric and/or narrative criteria

necessary to protect each designated use.necessary to protect each designated use.

• Antidegradation policyAntidegradation policy – states required to develop rules & implementation states required to develop rules & implementation

proceduresprocedures • to protect existing uses to protect existing uses • to prevent clean waters from being degraded, unless the to prevent clean waters from being degraded, unless the

action responsible for the deterioration provides a social action responsible for the deterioration provides a social or economic benefitor economic benefit

Federal History of Federal History of AntidegradationAntidegradation

• Concept established in 1968 by U.S. Concept established in 1968 by U.S. Department of Interior.Department of Interior.

• First policy statement included in EPA's first First policy statement included in EPA's first Water Quality Standards Regulation (40 CFR Water Quality Standards Regulation (40 CFR 130.17,40 F.R. 55340-41, November 28, 1975).130.17,40 F.R. 55340-41, November 28, 1975).

• Refined & re-promulgated as part of the current Refined & re-promulgated as part of the current program regulation published on November 8, program regulation published on November 8, 1983 (48 F.R. 51400, 40 CFR 131.12).1983 (48 F.R. 51400, 40 CFR 131.12).

• Based on the spirit, intent, and goals of the Based on the spirit, intent, and goals of the CWA Section 101(a): "… restore and maintain CWA Section 101(a): "… restore and maintain the chemical, physical and biological integrity the chemical, physical and biological integrity of the Nation's waters." of the Nation's waters."

Federal Regulatory BackgroundFederal Regulatory Background

• Antidegradation explicitly incorporated in Antidegradation explicitly incorporated in the CWA through:the CWA through:– a 1987 amendment codified in section 303(d)(4)(B) a 1987 amendment codified in section 303(d)(4)(B)

requiring satisfaction of antidegradation requirements requiring satisfaction of antidegradation requirements before making certain changes in NPDES permits; and before making certain changes in NPDES permits; and

– the 1990 Great Lakes Critical Programs Act codified in the 1990 Great Lakes Critical Programs Act codified in CWA section 118(c)(2) requiring EPA to publish Great CWA section 118(c)(2) requiring EPA to publish Great Lakes water quality guidance including antidegradation Lakes water quality guidance including antidegradation policies and implementation procedures. policies and implementation procedures.

• Antidegradation policies & implementation Antidegradation policies & implementation methods are required to be included in a methods are required to be included in a State's water quality standards.State's water quality standards.

Summary of Federal Rule Summary of Federal Rule (40 CFR §131.12)(40 CFR §131.12)

• States to develop and adopt a statewide antidegradation policy States to develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy. and identify the methods for implementing such policy.

• The antidegradation policy and implementation methods should The antidegradation policy and implementation methods should be consistent with the following:be consistent with the following:

– Existing instream water uses and the level of water quality necessary Existing instream water uses and the level of water quality necessary to to protect the existing usesprotect the existing uses shall be maintained and protected. shall be maintained and protected.

– Where the quality of the waters exceed levels necessary to support Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife and recreation in and on propagation of fish, shellfish, and wildlife and recreation in and on the water, that the water, that quality shall be maintained and protected unlessquality shall be maintained and protected unless the the State finds, after full satisfaction of the intergovernmental State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State's coordination and public participation provisions of the State's continuing planning process, that continuing planning process, that allowing lower water quality is allowing lower water quality is necessary to accommodate important economic or social necessary to accommodate important economic or social developmentdevelopment in the area in which the waters are located. In allowing in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure water such degradation or lower water quality, the State shall assure water quality adequate to protect existing uses fully. quality adequate to protect existing uses fully.

40 CFR §131.12 (continued)40 CFR §131.12 (continued)

– State shall assure that there shall be achieved the State shall assure that there shall be achieved the highest highest statutory and regulatory requirements for all new and existing statutory and regulatory requirements for all new and existing point sourcespoint sources and all and all cost-effective and reasonable best cost-effective and reasonable best management practices for nonpoint source controlmanagement practices for nonpoint source control..

– Where high quality waters constitute an Where high quality waters constitute an outstanding national outstanding national resourceresource, such as waters of National and State parks and , such as waters of National and State parks and wildlife refuges and waters of exceptional recreational or wildlife refuges and waters of exceptional recreational or ecological significance, that water ecological significance, that water quality shall be maintained quality shall be maintained and protectedand protected. .

– In those cases where potential water quality impairment In those cases where potential water quality impairment associated with a thermal discharge is involved, the associated with a thermal discharge is involved, the antidegradation policy and implementing method shall be antidegradation policy and implementing method shall be consistent with section 316(a) of the Act. consistent with section 316(a) of the Act.

Water Quality Standards Water Quality Standards Federal RegulationFederal Regulation

• Requires a three-tiered antidegradation programRequires a three-tiered antidegradation program– Section 131.13(a)(1), or "Tier 1," Section 131.13(a)(1), or "Tier 1,"

• protecting "existing uses," protecting "existing uses," • provides the absolute floor of water quality in all waters of provides the absolute floor of water quality in all waters of

the United Statesthe United States– Section 131.12(a)(2), or "Tier 2“Section 131.12(a)(2), or "Tier 2“

• High Quality Waters (HQWs)High Quality Waters (HQWs)• water quality exceeds that necessary to protect the water quality exceeds that necessary to protect the

section 101(a)(2) goals (fishable & swimmable)section 101(a)(2) goals (fishable & swimmable)• water quality may be lowered under certain conditions water quality may be lowered under certain conditions

but but nevernever below the level necessary to fully protect the below the level necessary to fully protect the "fishable/swimmable" & other existing uses"fishable/swimmable" & other existing uses

– Section 131.12(a)(3), or "Tier 3"Section 131.12(a)(3), or "Tier 3"• Outstanding National Resource Waters (ONRWs)Outstanding National Resource Waters (ONRWs)• only only temporarytemporary reduction allowed in water quality reduction allowed in water quality

Federal Requirements: Federal Requirements: Three Tiers of WaterThree Tiers of Water

Protection of Tier 1 WatersProtection of Tier 1 Waters

• Specified inSpecified in - 40 CFR 131.12(a)(1)- 40 CFR 131.12(a)(1)

• Maintain and protect existing uses and water Maintain and protect existing uses and water quality conditions necessary to support uses.quality conditions necessary to support uses.– Existing use to have occurred since Nov. 28, 1975 orExisting use to have occurred since Nov. 28, 1975 or– Water quality is suitable to allow existing uses to Water quality is suitable to allow existing uses to

occuroccur

• Where an existing use is established, it must Where an existing use is established, it must be protected even if it is not a designated usebe protected even if it is not a designated use

• Applicable to Applicable to allall waters waters

Protection of HQWs (Tier 2)Protection of HQWs (Tier 2)

• Specified inSpecified in - 40 CFR 131.12(a)(2)- 40 CFR 131.12(a)(2)• Includes waters whose quality exceeds that necessary to protect Includes waters whose quality exceeds that necessary to protect

the section 101(a)(2) goals of CWA, regardless of use designation the section 101(a)(2) goals of CWA, regardless of use designation • Before any lowering of water quality occurs, there must be an Before any lowering of water quality occurs, there must be an

antidegradation review consisting of:antidegradation review consisting of:– a finding that it is a finding that it is necessary to accommodate important necessary to accommodate important

economical or social developmenteconomical or social development in the area in which the in the area in which the waters are located waters are located

– full satisfaction of all intergovernmental coordination and full satisfaction of all intergovernmental coordination and public participationpublic participation provisions provisions

– assurance that the assurance that the highest statutory and regulatory highest statutory and regulatory requirementsrequirements for point sources, including new source for point sources, including new source performance standards, and best management practices for performance standards, and best management practices for nonpoint source pollutant controls are achievednonpoint source pollutant controls are achieved

• Water quality can Water quality can nevernever be lowered to a level that interferes with be lowered to a level that interferes with existing and designated uses.existing and designated uses.

Protection of ONRWs (Tier 3)Protection of ONRWs (Tier 3)

• Specified in - 40 CFR 131.12(a)(3)Specified in - 40 CFR 131.12(a)(3)

• Only Only temporarytemporary lowering of water lowering of water quality allowedquality allowed

• Include:Include:– nation’s highest quality watersnation’s highest quality waters– waters of exceptional ecological waters of exceptional ecological

significancesignificance

• ONRW classification made by StatesONRW classification made by States

Indiana’s OSRWs (Tier 2.9)Indiana’s OSRWs (Tier 2.9)

• Include waterbodies that have Include waterbodies that have uniqueunique or or special ecological, recreational,special ecological, recreational, or or aestheticaesthetic significance (327 IAC 2-1-9).significance (327 IAC 2-1-9).

• Tier 2.9 is an application of the antidegradation Tier 2.9 is an application of the antidegradation policy that has implementation requirements policy that has implementation requirements that are more stringent than for Tier 2, but that are more stringent than for Tier 2, but somewhat less stringent than the prohibition somewhat less stringent than the prohibition against any lowering of water quality in Tier 3.against any lowering of water quality in Tier 3.– EPA accepts this additional tier in State EPA accepts this additional tier in State

antidegradation policies because it is more stringent antidegradation policies because it is more stringent application of the Tier 2 provisions of the application of the Tier 2 provisions of the antidegradation policy and, therefore, permissible antidegradation policy and, therefore, permissible under section 510 of the CWAunder section 510 of the CWA

““Tiering” of Indiana WatersTiering” of Indiana Waters

Antidegradation Requirements Antidegradation Requirements of IC 13-18-3-2 (a/k/a SEA 431)of IC 13-18-3-2 (a/k/a SEA 431)• A definition of significant lowering of water quality A definition of significant lowering of water quality

that includes a de minimis quantity of additional that includes a de minimis quantity of additional pollutant load:pollutant load:– for which a new or increased permit limit is required;for which a new or increased permit limit is required;– below which antidegradation implementation procedures below which antidegradation implementation procedures

do not apply.do not apply.

• Significant lowering of water quality allowed in Significant lowering of water quality allowed in OSRWs or Exceptional Use Water (EUW) if:OSRWs or Exceptional Use Water (EUW) if:– there will be an overall improvement in water quality by:there will be an overall improvement in water quality by:

• implementation of a water quality project in the implementation of a water quality project in the watershed of the OSRW or the EUW watershed of the OSRW or the EUW

• payment of a fee, not to exceed five hundred thousand payment of a fee, not to exceed five hundred thousand dollars ($500,000) based on the type and quantity of dollars ($500,000) based on the type and quantity of increased pollutant loadingsincreased pollutant loadings

General History of Past IN General History of Past IN Antidegradation RulemakingAntidegradation Rulemaking

• 1970s – Indiana’s Stream Pollution Control Board 1970s – Indiana’s Stream Pollution Control Board adopted rules that established an antidegradation adopted rules that established an antidegradation policy for all waters as part of the Water Quality policy for all waters as part of the Water Quality Standards. Standards.

• 1997- Indiana’s Water Pollution Control Board 1997- Indiana’s Water Pollution Control Board adopted, as part of the Great Lakes Initiative, adopted, as part of the Great Lakes Initiative, rules that established antidegradation rules that established antidegradation implementationimplementation procedures for the Great Lakes procedures for the Great Lakes Basin ONLY.Basin ONLY.

• 1997- 2002 – IDEM made various attempts to 1997- 2002 – IDEM made various attempts to establish a workgroup to work on antidegradation establish a workgroup to work on antidegradation issues – these attempts failed to resolve issues.issues – these attempts failed to resolve issues.

General History of Past IN General History of Past IN Antidegradation RulemakingAntidegradation Rulemaking

• November 6, 2002 – first meeting of November 6, 2002 – first meeting of Antidegradation-OSRW workgroup set up by the Antidegradation-OSRW workgroup set up by the Triennial Review Steering Committee Triennial Review Steering Committee

• March 1, 2003 - first notice of rulemaking – March 1, 2003 - first notice of rulemaking – extensive comments were received and responses extensive comments were received and responses developed, however, some felt the Agency’s developed, however, some felt the Agency’s responses to the first notice comments were responses to the first notice comments were insufficient.insufficient.

• March 2003 – April 2005 – workgroup meetings March 2003 – April 2005 – workgroup meetings were held through December 2004.were held through December 2004.

• April 1, 2005 – second notice of rulemaking. The April 1, 2005 – second notice of rulemaking. The comment period was open from April 1, 2005 comment period was open from April 1, 2005 through May 30, 2005.  Responses to the through May 30, 2005.  Responses to the comments were never prepared.comments were never prepared.

General History of Present IN General History of Present IN Antidegradation RulemakingAntidegradation Rulemaking

• Considering:Considering:– the extensive amount of comments received;the extensive amount of comments received;– an internal review by staff who would be responsible an internal review by staff who would be responsible

for implementing antidegradation procedures;for implementing antidegradation procedures;

IDEM determined the April 1, 2005 secondIDEM determined the April 1, 2005 second

noticed draft would be difficult to implementnoticed draft would be difficult to implement

• April 2005 – July 2007 – internal IDEM, OWQ April 2005 – July 2007 – internal IDEM, OWQ workgroup met to take a fresh look at workgroup met to take a fresh look at antidegradation implementation procedures antidegradation implementation procedures and develop revised concept and develop revised concept

General History of Present IN General History of Present IN Antidegradation RulemakingAntidegradation Rulemaking

• August 2, 2007 – August 2, 2007 – presentation presentation of revised antidegradation of revised antidegradation concept to interested parties concept to interested parties in NW INin NW IN at Northwest IN at Northwest IN Regional Planning Commission (NIRPC) Regional Planning Commission (NIRPC)

• Attendees included:Attendees included:– Kay Nelson, NW IN ForumKay Nelson, NW IN Forum– Lee Botts, the Alliance for the Great LakesLee Botts, the Alliance for the Great Lakes– Kathy Luther; Dan Gardner; Kyle Nelson; Jackie Anders, NIRPCKathy Luther; Dan Gardner; Kyle Nelson; Jackie Anders, NIRPC– Brad Klein, Environmental Law and Policy CenterBrad Klein, Environmental Law and Policy Center– John Ross, NiSourceJohn Ross, NiSource– Kevin Doyle, Mittal SteelKevin Doyle, Mittal Steel– Tom Anderson and Charlotte Read, Save the DunesTom Anderson and Charlotte Read, Save the Dunes– Dave Behrens, U.S. SteelDave Behrens, U.S. Steel– Linda Wilson, BPLinda Wilson, BP– Jennifer Gadzala, Town of ChestertonJennifer Gadzala, Town of Chesterton– Glenn Pratt via telephoneGlenn Pratt via telephone– Various IDEM staffVarious IDEM staff

General History of Present IN General History of Present IN Antidegradation RulemakingAntidegradation Rulemaking

• August 15, 2007 - August 15, 2007 - presentationpresentation of revised of revised antidegradation concept antidegradation concept to industry repsto industry reps..

• August 22, 2007 – follow-up on presentation of August 22, 2007 – follow-up on presentation of revised antidegradation concept with industry reps.revised antidegradation concept with industry reps.

• September 28, 2007 – additional follow-up on September 28, 2007 – additional follow-up on presentation of revised antidegradation concept with presentation of revised antidegradation concept with industry reps.industry reps.

• Key attendees included:Key attendees included:– Patrick Bennett, Indiana Manufacturers AssociationPatrick Bennett, Indiana Manufacturers Association– Neil Parke, Eli LillyNeil Parke, Eli Lilly– John Humes, Hoosier EnergyJohn Humes, Hoosier Energy– Tim Lohner, American Electric PowerTim Lohner, American Electric Power– Nat Noland, Indiana Coal CouncilNat Noland, Indiana Coal Council– Vince Griffin, Indiana Chamber of CommerceVince Griffin, Indiana Chamber of Commerce

General History of Present IN General History of Present IN Antidegradation RulemakingAntidegradation Rulemaking

• September 12, 2007 - September 12, 2007 - presentationpresentation of revised antidegradation concept of revised antidegradation concept to Water Pollution Control Boardto Water Pollution Control Board..

• Key Concepts:Key Concepts:– de minimisde minimis– default antidegradation limitsdefault antidegradation limits– public notification processpublic notification process

General History of Present IN General History of Present IN Antidegradation RulemakingAntidegradation Rulemaking

• October 17, 2007 - October 17, 2007 - presentationpresentation of revised of revised antidegradation concept antidegradation concept to environmental to environmental interest group reps.interest group reps.

• November 21, 2007 – follow-up on presentation of November 21, 2007 – follow-up on presentation of revised antidegradation concept with environmental revised antidegradation concept with environmental interest group reps.interest group reps.

• Key attendees included:Key attendees included:– Tim Maloney, Hoosier Environmental CouncilTim Maloney, Hoosier Environmental Council– Rae Schnapp, Hoosier Environmental CouncilRae Schnapp, Hoosier Environmental Council– Bowden Quinn, Sierra ClubBowden Quinn, Sierra Club– Jeff Hyman, Conservation Law Center Jeff Hyman, Conservation Law Center – Brad Klein, Environmental Law & Policy Center Brad Klein, Environmental Law & Policy Center – Charlotte Read, Save the DunesCharlotte Read, Save the Dunes– Albert Ettinger, Environmental Law & Policy Center Albert Ettinger, Environmental Law & Policy Center

General History of Present IN General History of Present IN Antidegradation RulemakingAntidegradation Rulemaking

• October 29, 2007 - October 29, 2007 - presentationpresentation of revised of revised antidegradation concept antidegradation concept to municipality reps.to municipality reps.

• Key attendees included:Key attendees included:– Jodi Perras, representing Indiana Water Environment Jodi Perras, representing Indiana Water Environment

Association and the City of IndianapolisAssociation and the City of Indianapolis– Fred Andes, Barnes and ThornburgFred Andes, Barnes and Thornburg– Brett Barber, Greeley-Hansen Brett Barber, Greeley-Hansen

Current Activity on Present IN Current Activity on Present IN Antidegradation RulemakingAntidegradation Rulemaking

• IDEM has developed draft rule IDEM has developed draft rule languagelanguage– The draft used the framework described in The draft used the framework described in

the revised antidegradation concept and the revised antidegradation concept and took into consideration feedback from the took into consideration feedback from the presentations and follow-up meetingspresentations and follow-up meetings

– The draft language is currently being The draft language is currently being reviewed internallyreviewed internally

• Governor’s Stakeholder meetingGovernor’s Stakeholder meeting– This meeting is now – March 7, 2008This meeting is now – March 7, 2008

Next Steps on Present IN Next Steps on Present IN Antidegradation RulemakingAntidegradation Rulemaking

• IDEM will prepare a notice of IDEM will prepare a notice of rulemakingrulemaking

• IDEM will establish a workgroup IDEM will establish a workgroup – The workgroup will include The workgroup will include

representatives from industry, representatives from industry, environmental interest groups, and environmental interest groups, and municipalitiesmunicipalities

– Goal is to hold the first workgroup Goal is to hold the first workgroup meeting in April 2008meeting in April 2008

Proposed Workgroup Proposed Workgroup ProcessProcess

• The number of workgroup meetings The number of workgroup meetings will be limited and each meeting will will be limited and each meeting will target discussion on a key concept.target discussion on a key concept.

• Key Concepts to discuss:Key Concepts to discuss:– de minimis – April 2008de minimis – April 2008– default antidegradation limits – May default antidegradation limits – May

20082008– public notification process – June 2008public notification process – June 2008

Proposed Rulemaking TimelineProposed Rulemaking Timeline(best case scenario)(best case scenario)

• Second Notice publication: Goal – July 2008Second Notice publication: Goal – July 2008• Comment period – minimum 30 days so Comment period – minimum 30 days so

would end by: Goal - August 2008would end by: Goal - August 2008• Respond to comments – dependant on the Respond to comments – dependant on the

number and nature of comments received -number and nature of comments received -complete by: Goal – September 2008complete by: Goal – September 2008

• Preliminary Adoption: Goal – October 2008Preliminary Adoption: Goal – October 2008• Third Notice – may require 21 day comment Third Notice – may require 21 day comment

period - publication: Goal – November 2008 period - publication: Goal – November 2008 • Final Adoption – Goal – December 2008Final Adoption – Goal – December 2008