Client Alert Newsletter

New Surface Water Quality Standards Expected

The Clean Water Act requires states to reevaluate their surface water quality standards on a triennial basis, including adjusting numeric values, reevaluating use classifications, and setting standards for new substances. (For example, see Pennsylvania's proposed revisions to its water quality program in the January 12, 2008, Pennsylvania Bulletin.) In the past, these changes were not met with much interest by the regulated community because the implications of the new regulations were believed to be too remote. We have learned a lot over the years—enough to know that numeric, constituent-specific surface water quality standards can translate into onerous requirements for discharge permit holders, water users, and site remediators. Programs in play when water quality standards are being developed and applied by the regulatory agencies include National Pollution Discharge Elimination System ("NPDES") permits (including individual stormwater permits) required to contain water-quality-based effluent limits, either in the form of numeric effluent limits or best management practices; pollutant-specific allocations derived through the Total Maximum Daily Load ("TMDL") program applicable to dischargers and other load sources; and more stringent site remediation standards driven by the application of surface water quality criteria.

This year we expect to see continued interest by the agencies seeking to align regulatory requirements with the aim of achieving existing and newly developed water quality standards. As a rule, the water quality standards are quite stringent and it is not always apparent that they can be achieved with current technologies. The task at hand is to understand the basis of the requirements, participate in the standard-setting process and challenge the application of unachievable standards. Under any circumstance, proposed revisions to water quality standards will warrant close scrutiny.