Northwest Environmental Advocates--Programs

Anti-Degradation Policies to Protect Water Quality

The Antidegradation Policy

The concept of antidegradation is to prevent increased pollution of waters that are meeting water quality standards and to prohibit additional pollution of waters that violate water quality standards. There are three tiers to antidegradation policies. Tier One, described more fully below, provides this prohibition on increased deterioration of impaired waters. This policy is largely ignored. Tier Two requires a cost-benefit analysis for new pollution sources that propose to discharge into "high quality waters." Despite this requirement, states do not conduct these analyses prior to granting new permits to discharge pollution. Tier Three provides the highest level of protection to Outstanding Natural Resources Waters (ONRW). At this high level of protection, waters designated as ONRW would also be protected from any additional pollution. Neither Oregon nor Washington has designated any waters as ONRWs.

Tier One: How the Antidegradation Policy Prohibits New Pollution to Impaired Waters

The antidegradation policy is one source of information on the implications when a water is listing as violating state water quality standards. CWA Section 303(d)(4)(B). The antidegradation policy is one of the required components of states' water quality standards. PUD No. 1 of Jefferson County v. Washington Department of Ecology 114 S. Ct. 1900, 1905 (1994). The antidegradation policy stems from the need to interpret and apply the Act's dictate to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." CWA Section 101(a). The policy, first established by the Secretary of the Interior in 1968, was also included in the first water quality standards promulgated by EPA in 1975.

The part of the policy that is relevant to so-called Tier 1, or "water quality limited" waters, reads as follows:

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

40 CFR 131.12(a)(1). This level of protection is considered the absolute floor of water quality. Questions and Answers on: Antidegradation, EPA Office of Water Regulations and Standards, August 1985, at 4. Existing uses are those uses that have occurred on or after November 28, 1975; they may or may not be included as designated uses in state water quality standards. 40 CFR 131.3(e). An existing use can also be established by showing that "the water quality is suitable to allow such uses to occur (unless there are physical problems which prevent the use regardless of water quality)." Questions and Answers at 2.

Therefore, in the event that a waterbody is listed on the 303(d)(1) list, unless perhaps it can be shown that the waterbody is listed because of violations of water quality standards that are clearly overprotective of the existing uses, no additional pollutant loading or stressors can be allowed pursuant to the antidegradation policy. For this reason, this aspect of the antidegradation policy may be termed a "nondegradation" policy; it does not work against
degradation, it prohibits degradation. As far as we know, Oregon is the only state to interpret and apply its Tier 1 antidegradation policy in this fashion. While there are some detailed rules with regard to specific parameters, the Oregon rule provides, in part:

(C) The new or increased discharged load shall not be granted if the receiving stream is classified as being water quality limited under OAR 340-41-006(30)(a), unless:

(i) The pollutant parameters [in the discharge are not directly or indirectly associated with the limited parameter]; or

(ii) Total maximum daily loads (TMDLs), waste load allocations (WLAs), load allocations (LAs), and the reserve capacity have been established for the water quality limited receiving stream; and compliance plans under which enforcement action can be taken have been established; and there will be sufficient reserve capacity to assimilate the increased load under the established TMDL at the time of discharge; or

* * *

(iv) Under extraordinary circumstances to solve an existing, immediate, and critical environmental problem [there can be exceptions provided certain conditions are met].

OAR 340-41-026(3)(a). This rule has been applied to both individual and general NPDES permits.

The antidegradation policy can be applied to numerous regulated activities, in addition to NPDES permits, including 401 certifications, applications for water withdrawals, CWA section 404 dredge and fill permits, and any other activity regulated by the state such as forest practices, particularly under programs that require compliance with water quality standards, of which the antidegradation policy is a part.

NPDES Permit Requirements

In addition to the antidegradation policy, the Clean Water Act creates explicit restrictions for NPDES permitted sources that are tied to the water quality in the receiving stream. NPDES permits, which are first required to meet technology-based effluent limitations, also must contain "any more stringent limitation, including those necessary to meet water quality standards ... or required to implement any applicable water quality standard established pursuant to this chapter." CWA section 301(B)(C). Likewise, the Act requires that where a permitting authority determines that "discharges of a pollutant from a point source ... would interfere with the attainment or maintenance of [applicable] water quality standards, ... effluent limitations (including alternative effluent control strategies) for such point source ... shall be established which can reasonably be expected to contribute to the attainment or maintenance of such water quality. CWA section 302(a).

EPA regulations implementing the statute, mirror these restrictions. In general, the issuance of permits is prohibited "when the conditions of the permit do not provide for compliance with the applicable requirements of CWA, or regulations promulgated under CWA." 40 CFR 122.4(a). This includes "[w]hen the imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states." 40 CFR 122.4(d).

The regulations specifically prohibit the issuance of a permit for a "new source" or "new discharger" if the discharge from its operation will "cause or contribute to the violation of water quality standards:"

"[An applicant] proposing to discharge into a water segment which does not meet applicable water quality standards or is not expected to meet those standards even after the application of the effluent limitations required by sections 301(b)(1)(A) and 301(b)(1)(B) of CWA, and for which the State or interstate agency has performed a pollutants load allocation for the pollutant to be discharged, must demonstrate, before the close of the public comment period, that: (1) There are sufficient remaining pollutant load allocations to allow for the discharge; and (2) The existing dischargers into that segment are subject to compliance schedules designed to bring that segment into compliance with applicable water quality standards."

40 CFR 122.4(i).

In addition to implications for new sources of pollutant loadings, the statute and regulations spell out the implications for existing NPDES-regulated sources discharging into a water quality limited stream. Where NPDES permits are issued or reissued, EPA regulations require that the effluent limitations incorporated therein meet any additional standards and state requirements. 40 CFR 122.44(d). Specifically, "each NPDES permit shall include conditions meeting [w]ater quality standards and State requirements." Id. This section establishes the need for "any requirements in addition to or more stringent than promulgated effluent limitations guidelines or standards under [other sections of the CWA] necessary to: (1) Achieve water quality standards established under section 303 of the CWA, including State narrative criteria for water quality." 40 CFR 122.44(d)(1).

These required effluent limitations "must control all pollutants or pollutant parameters (either conventional, nonconventional or toxic pollutants) which the Director determines are or may be
discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard, including State narrative criteria for water quality." 40 CFR 122.44(d)(1)(i). In order to determine whether a discharge causes, has the reasonable potential to cause or contribute to an in?stream excursion above either narrative or
numeric criteria, "existing controls on point and nonpoint sources, the variability of the pollutant or polluting parameter in the effluent * * * and where appropriate, the dilution of the effluent in the receiving water" must be accounted for. 40 CFR 122.44(d)(1)(ii).

Tier Two Antidegradation Requirements

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EPA has published water quality guidance for the Great Lakes pursuant to the Clean Water Act, section 118(c)(2). The "Great Lakes Initiative" (GLI) guidance includes an antidegradation policy that sheds new light on the existing federal policy. See, 40 CFR 132, Appendix E; 60 Fed. Reg. 15412-14 (March 23, 1995). For example, the Great Lakes policy sets out a high burden of demonstration under the "social and economic development test" for Tier II/high quality waters. The test may allow new or increased discharges of pollutants to Tier II waters if they are necessary to support an important social and economic development. In the GLI, for example, for increased loads of bioaccumulative chemicals of concern (BCC) to be found "necessary," a proposed discharge must not be able to be eliminated via pollution prevention and treatment measures. Second, the discharge might be allowed if to support an important social and economic development. Here, the burden falls on the prospective discharger to show that the net positive effects will result in economic and social benefits, such as an increase in the number of jobs, income, reduction in unemployment rates, etc.. Even then, the agency is not required to permit the discharge. 40 CFR 132, App. E.; Supplementary Information Document at 221-225.

Tier Three Antidegradation to Protect Outstanding Waters

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