291 



violate applicable water quality standards and does not distinguish between federal- 

 ly promulgated or state water quality standards. 



Pursuant to CWA Section 304(a), EPA issues Federal water quality criteria to be 

 used by the States. States use this guidance and other information to adopt criteria 

 into State law to support designated uses. The criteria and designated uses are 

 adopted as water quality standards subject to EPA review and approval. The Corps 

 obtains State Section 401 certification (or waiver) for Ck)rps-permitted (or conducted) 

 activities which may involve a discharge to a State's waters. In addition, as part of 

 demonstrating compliance with the CWA or the MPRSA, the activity regulated or 

 conducted by the Corps is required to meet applicable State water quality standards. 



Q. 33: C) Must any Corps determination of its "least costly and environmentally 

 acceptable" Federal standard embody from the outset the minimum of environ- 

 mental acceptability defined by compliance with Federal and EPA-approved State 

 water quality standards? Please explain. 



A. 33: C) Yes, the Corps' concept of "environmental acceptability" embodied in 

 their Federal Standard includes compliance with State water quality standards. 

 Likewise, compliance with the CWA Section 404(b)(1) Guidelines or MPRSA regula- 

 tions for dumping in ocean waters, is a requirement for "environmental acceptabil- 

 ity." Projects that do not comply with State water quality standards, or the Section 

 404(b)(1) Guidelines or MPRSA regulations, are not consistent with the Federal 

 Standard. 



Q. 33: D) What happens in the case such as at the Port of Toledo where an EPA- 

 approved State water quality standard is interpreted differently by the Corps than 

 by the State? Does EPA have a position on which entity — the Corps or the State — 

 has the ultimate authority to interpret a State's water quality standards as they 

 may relate to a Corps navigational dredging and disposal project? 



A. 33: D) Where a State has an EPA-approved water quality standard, the State 

 has the authority to "interpret" that standard. In the case of the Port of "Toledo, the 

 disagreement between the Corps and the State (and EPA which supports the State) 

 concerns the "validity" of a narrative standard. Narrative standards are valid and 

 authorized in 40 CFR 131.11. Therefore, Section 401 certifications relying on narra- 

 tive water quality standards are valid. ^ 



Q. 33: E) What, if any, recourse does the Corps have if it considers an EPA-ap- 

 proved State water quality standard — that may constrain its dredging and disposal 

 options — excessive? 



A. 33: E) As previously discussed, the Corps must comply with State water quality 

 standards, regardless of whether or not the Corps considers them "excessive." If a 

 State requests conditions addressing chemical, physical, or biological water quality 

 concerns, on a Federal project that would result in the Corps carrying out the 

 project in excess of their Federal Standard (i.e., conducting a project that costs more 

 than another environmentally acceptable alternative), the Corps would not honor 

 the State's request, because they would believe it violates their regulations. There 

 are several courses a project could take if the Corps and a State disagree: (Da local 

 sponsor could pay the incregised costs associated with a project, to carry out that 

 alternative; (2) the Corps could pay certain additional costs with other funds, if 

 these are available; (3) the Corps could modify their calculation of the least cost, 

 environmentally acceptable alternative to incorporate compliance with State water 

 quality standards as interpreted by the State; or (4) Congress could appropriate ad- 

 ditional funds to conduct the project in a specific manner. 



If the Corps cannot comply with conditions requested by the State, there are sev- 

 eral additional courses a project could take: (1) the Corps could refuse to conduct the 

 project; (2) the State could waive its certification (or grant a variance under State 

 procedures) for the project to allow it to proceed; or (3) in the case of the CWA 404 

 regulated activities, the Corps could invoke authority under CWA Section 404(t) to 

 maintain navigation, in spite of State requirements (to our knowledge, this author- 

 ity — which we regard as emergency — has never been exercised). 



Q. 33: F) Are EPA-approved State water quality standards somehow different 

 from Federal water quality standards such that Federal agencies can selectively 

 refuse to pay specific costs associated with EPA-approved State water quality 

 standards? 



^ We understand that the Corps believes that they are complying with aM of the State of 

 Ohio's standards and that the State of Ohio does not have a valid standard in place concerning 

 the goal of eliminating all open-water disposal of dredged material. This goal is part of the State 

 of Ohio's Phosphorus Reduction Strategy, which is contained in the narrative jwrtion of the 

 water quality standards. 



