“Existing Water Quality Standards and Wet Weather Compliance are Mutually Exclusive. Why Does This Have to be the Case?”

It is the national goal of the Clean Water Act (CWA) that, whenever attainable, water quality which provides for the protection and propagation of fish, shellfish, and wildlife and further provides for recreation in and on the water be achieved. This is commonly referred to as the “fishable/swimmable” notion of the Act. To help accomplish this, water quality standards (WQS) were created.A WQS defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by establishing criteria necessary to protect those uses.Additionally, anti–degradation policies maintain and protect existing uses and high–quality or National/State Resource Waters.USEPA first promulgated WQS regulations on November 8,1983 at 48 FR 51405 and the most recent Amendment to the USEPA procedures for approving state WQS was published November 14,2008 at 73 FR 67396. WQS were initially developed to address wastewater treatment plant discharge impacts to receiving waters during low flow stream conditions. More recently, nonpoint source pollution abatement was introduced to improve water quality via the Total Maximum Daily Load (TMDL) Program. In-stream wet weather flow regimes and nonpoint source pollutant contributions during wet weather events have historically been ignored in WQS.States may remove a designated use, as long as it is not an existing use, or establish subcategories of a use if it can be demonstrated that attaining the designated use is not feasible due to one or more of the six criteria described at Section 131.10(g) of the Act. Most often the criterion of choice is based upon controls more stringent than those required by Sections 30 I(b)(Secondary Treatment) or 306 (New Source Performance Standards) that result in substantial and widespread economic and social hardship to a community. This demonstration consists of performing a Use Attainability Analysis (UAA) which is a robust scientific assessment of the physical, biological, chemical and economic factors affecting attainment of the pertinent WQS.Recreation in and on the waters of the United States is a fundamental precept of the CWA Because pathogenic bacteria are ubiquitous and bacteria concentrations in current water quality criteria are utilized to measure water quality attainment, WQS must be adopted in the context of wet weather. While there is no doubt ambient in-stream water quality is degraded during and immediately after wet weather events, there comes a point at which no further money should be expended to control wastewater point sources in an attempt to meet a WQS that was developed for dry weather conditions using federal regulations that are almost forty years old.Given the litigious nature of society today, regulatory compliance is an imperative. It will take time for wet weather WQS to evolve, but evolve they must. Additionally, the entire CWA should be modernized to capitalize upon the environmental knowledge and technological advances we've made over the past four decades. We have the science to inform both undertakings. Now we must have the will. This paper is a distillation of current WQS and CWA issues and will posit potential remedies necessary to further enhance water quality.