US EPA recently issued two memoranda announcing a more flexible timeline for its review of state and tribal water quality standards (WQS), replacing a Trump-Era policy that set defined deadlines for these reviews.  On February 4, 2022, US EPA Assistant Administrator Radhika Fox issued a memorandum entitled “Rescission of Memorandum Titled: ‘Policy for the EPA’s Review and Action on Clean Water Act Program Submittals’” (the Fox Memo), rescinding a Trump-era water office memorandum from June 3, 2019 (the Ross Memo). On the same day, Deborah G. Nagle, Director of the Office of Science and Technology (OST), issued a memorandum entitled “Decision-Making Principles for EPA Headquarters’ Concurrence on Water Quality Standards Decisions” to all Water Division Directors (the Nagle Memo).

Background

Under the Clean Water Act (CWA), new or revised WQS proposed by states or tribes must be approved by US EPA. Once submitted, US EPA has 60 days to notify the state or tribe of its approval or 90 days to notify the state or tribe of its disapproval.  If US EPA disapproves a proposed WQS, it will provide necessary changes for the standards to comply with the CWA. If the state or tribe fails to adopt the specified changes within 90 days of the disapproval, US EPA must then “promptly propose and promulgate” a federal WQS that complies with the CWA.

The Ross Memo acknowledged that “[f]or many years, the EPA has routinely exceeded the review and action timelines established by Congress in the CWA.” For an example of this lengthy process, see our previous blog post on Missouri’s approach to nutrient pollution. The policy espoused by the Ross Memo was intended to allow “EPA to provide appropriate oversight without substituting its policy preferences for the expertise and judgment of state and tribal regulators.” Under the Ross Memo, if US EPA were to disapprove of a proposed WQS and the state or tribe failed to adopt modified standards within the 90-day period, US EPA was expected to propose federal WQS “promptly, without undue delay.” See Defenders of Wildlife v. Browner, 909 F. Supp. 1342 (D. Ariz. 1995); Raymond Proffitt Foundation v. EPA, 930 F. Supp. 546 (W.D. Wash. 1997) (establishing the basis for the language “promptly, without undue delay”). Under this lens, the Ross Memo interpreted “promptly, without undue delay” to mean US EPA must propose “federal standards within 90 days after the state or tribe fail[ed] to remedy a disapproval” and “finalize those standards within 90 days after proposal.”

The Fox & Nagle Memos

In three short paragraphs, Fox completely rescinded US EPA’s former policy. The Fox Memo requested that both the Office Directors from the OST and the Office of Wetlands, Oceans and Watersheds issue memoranda that document their review processes under CWA Section 303(c), which addresses WQS, and Section 303(d), which addresses total maximum daily loads (TMDLs) for bodies of water. It also directly addresses the Ross Memo’s interpretation of “promptly, without undue delay.”

Specifically, the Fox Memo determined the former interpretation of a specific 90-day timeline was not supported by the CWA, which does not contain such a bright-line rule. Thus, “EPA’s current view is that case-specific circumstances involved in EPA’s proposal of federal regulations can, and should, inform what constitutes prompt action under this provision.”  In other words, the Fox Memo exchanges a stream-lined and predictable process for promulgating federal WQS for a case-by-case analysis that may entail a longer process (see our blog post). On the other hand, the case-by-case analysis will give US EPA more time to consider WQS in situations that may be complex and require further deliberation beyond the timeframe prescribed by the Ross Memo.

With respect to the Nagle Memo, the OST is the first and only office to respond so far. This memo notes that “[o]ver the last 20 years, as the complexity of the issues and the frequency of litigation increased, it became common practice to elevate requests for Headquarters’ concurrence on all WQS approvals” which resulted in extended wait periods, missed statutory deadlines, and uncertainty for the regulated community. Thus, the Nagle Memo highlights five decision-making principles that now guide WQS disapprovals:

1. The best available data and evidence indicate that the WQS is not consistent with the requirements of the CWA and EPA’s implementing regulations.

2. The EPA Region and Headquarters agree that the WQS is not consistent with the requirements of the CWA and EPA’s implementing regulations.

3. The state or authorized tribe recognizes that the WQS is not consistent with the requirements of the CWA and EPA’s implementing regulations.

4. Disapproval of the WQS is generally not expected to be controversial or lead to litigation.

5. A corresponding, previously approved WQS provision remains in effect for CWA purposes and/or the state or authorized tribe is actively working on the changes necessary to meet the requirements of the CWA and EPA’s implementing regulations such that a protective WQS will be in place absent a federal promulgation.

The OST expects disapprovals that align with all five of these principles will be uncontroversial and will avoid the need to be elevated, therefore relieving the bureaucratic bloat. Time will tell how efficient US EPA’s new policies will prove to be. For now, uncertainty looms for both state and tribal regulators and the regulated community.