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Proposed Rule

Water Quality Standards Regulatory Clarifications

Action

Proposed Rule.

Summary

The Environmental Protection Agency (EPA) is proposing changes to the federal water quality standards (WQS) regulation which helps implement the Clean Water Act. The changes will improve the regulation's effectiveness in restoring and maintaining the chemical, physical, and biological integrity of the nation's waters. The EPA is seeking comments from interested parties on these proposed revisions. The core of the current regulation has been in place since 1983; since then, a number of issues have been raised by states, tribes, or stakeholders or identified by the EPA in the implementation process that will benefit from clarification and greater specificity. The proposed rule addresses the following key program areas: Administrator's determinations that new or revised WQS are necessary, designated uses, triennial reviews, antidegradation, variances to WQS, and compliance schedule authorizing provisions.

 

Table of Contents Back to Top

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DATES: Back to Top

Comments must be received on or before December 3, 2013.

ADDRESSES: Back to Top

Submit your comments, identified by Docket identification (ID) No. EPA-HQ-OW-2010-0606, by one of the following methods:

  • Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
  • Email: ow-docket@epa.gov.
  • Mail: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 20460. Attention: Docket ID No. EPA-HQ-OW-2010-0606.
  • Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 Constitution Ave. NW., Washington, DC 20004, Attention: Docket ID No. EPA-HQ-OW-2010-0606. Such deliveries are only accepted during the Docket Center's normal hours of operation. Special arrangements should be made for deliveries of boxed information by calling 202-566-2426.

Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-0606. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disc you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about the EPA's public docket visit the Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available (e.g., CBI or other information whose disclosure is restricted by statute). Certain other materials, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the Office of Water Docket Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744; the telephone number for the Office of Water Docket Center is (202) 566-2426.

FOR FURTHER INFORMATION CONTACT: Back to Top

Janita Aguirre, Standards and Health Protection Division, Office of Science and Technology (4305T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: 202-566-1860; fax number: 202-566-0409; email address: WQSRegulatoryClarifications@epa.gov.

SUPPLEMENTARY INFORMATION: Back to Top

This supplementary information section is organized as follows:

Table of Contents Back to Top

I. General Information

A. Does this action apply to me?

B. What should I consider as I prepare my comments for the EPA?

II. Background

A. What is the statutory and regulatory history of the WQS regulation and program?

B. How has the public provided EPA input on the national WQS Program in the past?

C. Why is the EPA proposing changes to the federal WQS regulation?

III. Program Areas for Proposed Regulatory Clarifications

A. Introduction

B. Administrator's Determinations That New or Revised WQS Are Necessary

C. Designated Uses

D. Requirements of Triennial Reviews

E. Antidegradation Implementation

F. WQS Variances

G. Provisions Authorizing the Use of Permit-Based Compliance Schedules

H. Other Changes

IV. When does this action take effect?

V. Economic Impacts on State and Tribal WQS Programs

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132 (Federalism)

F. Executive Order 13175

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

I. General Information Back to Top

A. Does this action apply to me?

State and tribal governments responsible for administering or overseeing water quality programs may be directly affected by this rulemaking, as states and authorized tribes [1] may need to consider and implement new provisions, or revise existing provisions, in their water quality standards (WQS or standards). Entities such as industrial dischargers or publicly owned treatment works that discharge pollutants to waters of the United States may be indirectly affected by this rulemaking because WQS may be used in determining permit limits under the National Pollutant Discharge Elimination System (NPDES) or in implementing other Clean Water Act (CWA or the Act) regulatory programs. Citizens concerned with water quality and WQS implementation may also be interested in this rulemaking, although they might not be directly impacted. Categories and entities that may potentially be affected include the following:

Category Examples of potentially affected entities
States and Tribes States and authorized tribes (tribes eligible to administer WQS under the CWA).
Industry Industries discharging pollutants to waters of the United States.
Municipalities Publicly owned treatment works or other facilities discharging pollutants to waters of the United States.

This table is not intended to be exhaustive, but rather provides a guide for entities that may be directly or indirectly affected by this action. It lists the types of entities of which the EPA is aware could be potentially affected by this action. Other types of entities not listed in the table might be affected through implementation of WQS that are revised as a result of this rule. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. What should I consider as I prepare my comments for the EPA?

1. Resubmitting Relevant Comments From 2010 Stakeholder and Public Listening Sessions

From August through December 2010, the EPA held multiple listening sessions with stakeholders and the public, as well as consultation sessions with states, tribes, and representatives of state and local elected officials, concerning the general directions of this proposed rule. The EPA considered the views and comments received from these sessions in developing this proposal. The proposal published today has evolved substantially from the materials the EPA shared at that time. If you submitted comments in response to any of those sessions and wish for these comments to be considered during the public comment period for this proposed rulemaking, you must resubmit such comments to the EPA in accordance with the instructions outlined in this document.

2. Submitting Confidential Business Information (CBI)

Do not submit this information to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disc that you mail to the EPA, mark the outside of the disc as CBI and then identify electronically within the disc the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

3. Tips for Preparing Your Comments

When submitting comments, remember to:

  • Identify the rulemaking by docket number and other identifying information (subject heading, Federal Register date and page number).
  • Follow directions. The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number.
  • Submit any and all comments on any portion of the rulemaking that you wish to be considered.
  • Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes.
  • Describe any assumptions and provide any technical information and/or data that you used.
  • If you provide an estimate of potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
  • Provide specific examples to illustrate your concerns, and suggest alternatives.
  • Explain your views as clearly as possible.
  • Make sure to submit your comments by the comment period deadline identified.

II. Background Back to Top

A. What is the statutory and regulatory history of the WQS regulation and program?

The CWA—initially enacted as the Federal Water Pollution Control Act Amendments of 1972 (92) and subsequent amendments—establishes the basic structure in place today for regulating pollutant discharges into the waters of the United States. In the Act, Congress established the national objective to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” and to achieve “wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water” (sections 101(a) and 101(a)(2)).

The CWA establishes the basis for the current WQS regulation and program. Section 301 of the Act provides that “the discharge of any pollutant by any person shall be unlawful” except in compliance with specific requirements of Title III and IV of the Act, including industrial and municipal effluent limitations specified under section 304 and “any more stringent limitation, including those necessary to meet WQS, treatment standards or schedule of compliance established pursuant to any State law or regulation.” Section 303(c) of the Act addresses the development of state and authorized tribal WQS and provides for the following:

(1) WQS shall consist of designated uses and water quality criteria based upon such uses;

(2) States and authorized tribes shall establish WQS considering the following possible uses for their waters—propagation of fish, shellfish and wildlife, recreational purposes, public water supply, agricultural and industrial water supplies, navigation, and other uses;

(3) State and tribal standards must protect public health or welfare, enhance the quality of water, and serve the purposes of the Act;

(4) States and tribes must review their standards at least once every 3 years; and

(5) The EPA is required to review any new or revised state and tribal standards, and is also required to promulgate federal standards where the EPA finds that new or revised state or tribal standards are not consistent with applicable requirements of the Act or in situations where the Administrator determines that federal standards are necessary to meet the requirements of the Act.

The EPA established the core of the current WQS regulation in a final rule issued in 1983. [2] This rule strengthened previous provisions that had been in place since 1977 and moved them to a new 40 CFR part 131 (54 FR 51400, November 8, 1983). The resulting regulation describes how the WQS envisioned in the CWA are to be administered. It clarifies the content of standards and establishes more detailed provisions for implementing the provisions of the Act. The following are examples of how the regulation has interpreted and implemented the CWA provisions regarding standards:

  • Establishes procedures to recognize the importance of designating beneficial uses to achieve the CWA section 101(a)(2) interim goal with regard to protecting aquatic life and recreational uses, and to provide states and tribes the option of establishing sub-categories of uses, such as cold water and warm water aquatic life designations (§ 131.10).
  • Provides detail concerning the adoption of numeric water quality criteria, including authorizing the modification of the EPA's national recommended criteria to reflect site-specific conditions, the use of criteria methodologies different from the EPA's recommendations so long as they are scientifically defensible, and the use of narrative criteria where numeric criteria cannot be derived or to supplement numeric criteria (§ 131.11).
  • Incorporates and clarifies the Act's emphasis on the importance of preserving existing uses and identifying and preserving high quality and outstanding resource waters through longstanding antidegradation provisions. These provisions are designed to protect existing uses and the level of water quality necessary to support these uses; to protect high quality waters and provide a transparent analytic process for states and tribes to determine whether limited degradation of such waters is appropriate and necessary (§ 131.12).

In support of the 1983 regulation, the EPA has issued a number of guidance documents, such as the “Water Quality Standards Handbook” (WQS Handbook), [3] that have provided guidance on the interpretation and implementation of the WQS regulation, and on scientific and technical analyses that are used in making decisions that would impact WQS. The EPA also developed the “Technical Support Document for Water Quality-Based Toxics Control” [4] (TSD) that provided additional guidance for implementing state and tribal WQS.

The part 131 regulation has been modified twice since 1983. First, in 1991 the EPA added §§ 131.7 and 131.8 regarding tribes, pursuant to section 518 of the CWA (56 FR 64893, December 12, 1991). Section 518, which was enacted in 1987, included provisions extending the ability to participate in the WQS program to Indian tribes. Second, in 2000 the EPA promulgated § 131.21(c), commonly known as the “Alaska Rule,” to clarify that new and revised standards adopted by states and tribes and submitted to the EPA after May 30, 2000 become applicable standards for CWA purposes only when approved by the EPA (65 FR 24641, April 27, 2000).

B. How has the public provided EPA input on the national WQS Program in the past?

The EPA received comments, data, and information from over 6,000 commenters in developing “Final Water Quality Guidance for the Great Lakes System” in 1995 (60 FR 15366, March 23, 1995). The final Guidance represented more than six years of intensive, cooperative efforts that included participation by the eight Great Lakes states, the EPA, and other Federal agencies in open dialogue with citizens, local governments, municipalities, academia, the environmental community, and industries located in the Great Lakes ecosystem. This process entailed a thorough review and analysis of the federal water quality program and opportunities for greater clarity, focus, and improved implementation. The final Guidance is codified in 40 CFR part 132 and helps establish consistent, enforceable, and long-term protections from all types of pollutants, with short-term emphasis on the types of bio-accumulative contaminants that accumulate in the food web and pose a threat to the Great Lakes System. While not all provisions of the Final Guidance may be necessary or appropriate for the national Water Quality Standards Program, the EPA considered the input received from the public through the development of the Final Guidance during the preparation of this proposed rule.

In 1998, the EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) to discuss and invite comment on over 130 aspects of the federal WQS regulation and program, with a goal of identifying specific changes that might strengthen water quality protection and restoration, facilitate watershed management initiatives, and incorporate evolving water quality criteria and assessment science into state and tribal WQS programs. (63 FR 36742, July 7, 1998). In response, the EPA received over 3,200 specific written comments from over 150 comment letters. The EPA also held three public meetings during the 180-day comment period where additional comments were received and discussed.

Although the EPA chose not to move forward with a rulemaking after the ANRPM, as a result of the input received, the EPA identified a number of high priority issue areas for which the Agency has developed guidance, provided technical assistance and continued further discussion and dialogue to assure more effective program implementation. For example, many ANPRM commenters expressed the need for additional assistance on establishing designated uses of water bodies and the process to follow when making designated uses more or less protective. In order to receive input from a broad set of stakeholders on these topics, the EPA held a follow-up national symposium on designated uses on June 3-4, 2002 in Washington, DC. Approximately 200 interested citizens, government officials, and regulated parties attended this open meeting, which included presentations from a variety of stakeholders and an expert panel representing different viewpoints. [5] In addition, the EPA held four co-regulator workshops between February 2005 and April 2006 with state, interstate, and tribal partners, and gathered further input and feedback on the establishment, adjustment, and implementation of designated uses. [6]

C. Why is the EPA proposing changes to the Federal WQS regulation?

The core requirements of the current WQS regulation have been in place for over 30 years. These requirements have provided a strong foundation for water quality-based controls, including water quality assessments, impaired waters lists, and total maximum daily loads (TMDLs) under CWA section 303(d), as well as for water quality-based effluent limits (WQBELs) in NPDES discharge permits under CWA section 402. As with the development and operation of any program, however, a number of policy and technical issues have recurred over the past 30 years in individual standards reviews, stakeholder comments, and litigation that the EPA believes would be addressed and resolved more efficiently by clarifying, updating and revising the federal WQS regulation to assure greater public transparency, better stakeholder information, and more effective implementation.

From 2008 through 2010, the EPA held ongoing discussions with state and tribal partners and other stakeholders. These discussions addressed a wide-range of issues, from which a subset has been identified as significant areas of continuing concern. In 2010, the EPA held listening sessions with the public, states and tribes to obtain feedback on this subset of issues. The agenda, background material, list of participants and the public transcripts may be viewed at http://water.epa.gov/lawsregs/lawsguidance/wqs_listening.cfm#records. Section III of the EPA's proposal describes the key areas the EPA has chosen to address based on input received and the EPA's proposed regulatory approaches. The EPA believes that states, tribes, other stakeholders, and the public will benefit from clarification in these key areas to better understand and make proper use of available CWA tools and flexibilities, while maintaining open and transparent public participation. Clear regulatory requirements and improved implementation will provide a more transparent and well-defined pathway for restoring and maintaining the biological, chemical, and physical integrity of the nation's waters. The changes the EPA is proposing today add or modify specific regulatory provisions to address key areas described below.

III. Program Areas for Proposed Regulatory Clarifications Back to Top

A. Introduction

As discussed in section II.C, the EPA has had ongoing dialogue with states, tribes and stakeholders on key issues that are central to assuring effective implementation of the WQS program. As part of this process, the Agency has considered several fundamental questions in evaluating opportunities to improve implementation of the WQS program including which recurring implementation issues would benefit most from a regulatory clarification or update, whether there are emerging issues that could be more effectively addressed through regulatory revisions, whether the regulation continues to have the appropriate balance of consistency and flexibility for states and tribes, and whether the resulting program effectively facilitates public participation in standards decisions.

As a result of this evaluation and consideration of continuing input from states, tribes and stakeholders, the EPA is proposing changes to key program areas of its WQS regulation at 40 CFR part 131 that the Agency believes will result in improved regulatory clarity and more effective program implementation, and lead to environmental improvements in water quality. This proposed rulemaking requests comment on regulatory revisions in the following six key issue areas: (1) Administrator's determination that new or revised WQS are necessary, (2) designated uses, (3) triennial reviews, (4) antidegradation, (5) WQS variances, and (6) compliance schedule authorizing provisions.

B. Administrator's Determinations That New or Revised WQS Are Necessary

1. The EPA Proposal

The EPA is proposing to amend paragraph (b) of § 131.22 to add a requirement that an Administrator's determination must be signed by the Administrator or his or her duly authorized delegate, and must include a statement that the document is a determination for purposes of section 303(c)(4)(B) of the Act.

2. Background and Rationale for Revision

Section 303(c)(4)(B) of the CWA provides the EPA Administrator with authority to determine that a new or revised WQS is necessary to meet the CWA requirements, typically in those situations where a state or tribe fails or is unable to act in a manner consistent with the CWA. Such a determination is made at the Administrator's discretion, after evaluating all relevant factors. An Administrator's determination triggers the requirement for the EPA to promptly prepare and publish proposed regulations setting forth a revised or new WQS for the waters of the United States involved, and for the EPA to promulgate such WQS unless the state or tribe adopts and the EPA approves such WQS before the EPA promulgation.

The EPA is concerned that the process whereby the Administrator determines that new or revised standards are necessary is not always clearly understood or interpreted by the public and stakeholders. In some instances, this lack of understanding has led to a mistaken conclusion that the EPA has made a CWA 303(c)(4)(B) determination when, in fact, the EPA did not make nor intend to make a determination. For example, Agency memoranda or documents articulating areas where states' WQS may need improvements have sometimes been construed or alleged by stakeholders to be official Administrator determinations that obligate the EPA to propose and promulgate federal WQS for such states. In order to ensure effective implementation of the national WQS program, to provide direct, clear, and transparent feedback on state and tribal actions, and to maintain an open and constructive dialogue with states, tribes and stakeholders on important water quality issues, it is essential that the EPA have the ability to provide feedback, and states and tribes have the opportunity to consider and evaluate the Agency's views, without fear of litigation triggering a duty on the part of the EPA to propose and promulgate WQS before either a state, tribe or the Agency believes such a course is appropriate or necessary.

The EPA believes that this revision would establish a more transparent process for the Administrator to announce any determination made under section 303(c)(4)(B) of the Act. Such a revision will allow the EPA to effectively provide direct and specific written recommendations to states and tribes on areas where WQS improvements should be considered, without the possibility that such recommendations will be construed as a determination that obligates the EPA to propose and promulgate new or revised standards.

The public's ability under Section 553(e) of the Administrative Procedure Act (5 U.S.C. 553(e)) to petition the EPA to issue, amend, or repeal a rule, would not be affected by this proposed revision.

The EPA invites comments on the proposed amendment to paragraph (b) of § 131.22. The EPA also invites comment on any other options it should consider or on the interpretations expressed in this section.

C. Designated Uses

1. The EPA Proposal

First, the EPA is proposing to amend paragraph (g) at § 131.10 to provide that where a state or tribe adopts new or revised water quality standards based on a use attainability analysis (UAA), it must adopt the highest attainable use (HAU). States and tribes must also adopt criteria, as specified in § 131.11(a), to protect that use. The EPA is also proposing to add a definition of HAU at § 131.3(m). Specifically, the EPA is proposing to define HAU as “the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g).”

Second, the EPA is making appropriate edits to § 131.10(g) to be clear that the factors listed in § 131.10(g) must be used when a UAA is required by § 131.10(j), and is restructuring § 131.10(k) to clearly articulate when a UAA is not required.

2. Background

Designated uses communicate a state's or tribe's environmental management objectives for its waters and drive on-the-ground water quality decision-making and improvements. To establish appropriate WQS, states and tribes define the water quality goals of a water body first by designating the use(s) and second by setting criteria that protect those uses. WQS are the foundation for other CWA requirements applicable to a water body, such as WQBELs for point source dischargers, as well as assessment of waters and establishment of TMDLs for waters not meeting applicable WQS. Designated uses play such an important role in the effective implementation of the CWA. The EPA believes it is essential to provide clear and concise regulatory requirements for states and tribes to follow (1) when adopting a use specified in section 101(a)(2) or sub-categories of such uses for a water body for the first time, or (2) when removing or revising a currently adopted use specified in section 101(a)(2) of the Act, or a sub-category of such a use. This is particularly important in light of recurring input and questions on this issue and the potential for conflicting interpretations and inconsistent case-by-case WQS program implementation.

Under section 303 (33 U.S.C. 1313) of the CWA, states and authorized tribes are required to develop WQS for waters of the United States within their state. WQS shall include designated use or uses to be made of the water and criteria to protect those uses. Such standards shall be established taking into consideration the use and value of waters for public water supplies, propagation of fish and wildlife, recreation, agricultural uses, industrial uses, navigation and other purposes (CWA 303(c)(2)(A)). Designated uses are defined at 40 CFR 131.3(f) as the “uses specified in water quality standards for each water body or segment whether or not they are being attained.” A “use” is a particular function of, or activity in, a particular water body that requires a specific level of water quality.

Section 101(a)(2) of the CWA establishes the national goal that “wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water” be achieved by July 1, 1983. CWA section 303(c)(2)(A) requires state and tribal WQS to “protect the public health or welfare, enhance the quality of the water and serve the purposes of this [Act].” The WQS regulation at 40 CFR part 131 interprets and implements these provisions through requirements that WQS protect the uses specified in section 101(a)(2) of the Act unless those uses are shown to be unattainable, effectively creating a rebuttable presumption of attainability. [7] Thus, it has been the EPA's interpretation that the uses specified in section 101(a)(2) of the Act are presumed attainable unless a state or tribe affirmatively demonstrates through a UAA [8] that 101(a)(2) uses are not attainable as provided by one of six regulatory factors at § 131.10(g). [9]

The current WQS regulation at 40 CFR 131.10 requires states and tribes to specify appropriate uses to be achieved and protected; requires that WQS ensure attainment and maintenance of WQS of downstream waters; allows for sub-categories of uses (e.g., to differentiate between cold water and warm water fisheries) and seasonal uses; describes when uses are attainable; lists six factors of which at least one must be satisfied to justify removal of uses specified in Section 101(a)(2) that are not existing uses; prohibits removal of existing uses; requires states and authorized tribes to revise WQS to reflect uses that are presently being attained but not designated; and establishes when a state or tribe is or is not required to conduct a UAA. States and tribes have flexibility when managing their designated uses consistent with the CWA and implementing regulation.

More specifically, the current WQS regulation requires a UAA when designating uses that do not include the uses specified in section 101(a)(2) of the CWA, when removing a designated use specified in section 101(a)(2) of the Act, or when adopting sub-categories of such uses that require less stringent criteria. The phrase “uses specified in section 101(a)(2) of the Act” refers to uses that provide for the protection and propagation of fish (including aquatic invertebrates), shellfish, and wildlife, and recreation in and on the water, as well as for the protection of human health when consuming fish, shellfish, and other aquatic life. [10] “Sub-category of a use specified in section 101(a)(2) of the Act” refers to any use that reflects the subdivision of uses specified in section 101(a)(2) of the Act into smaller, more homogenous groups of waters with the intent of reducing variability within the group. 40 CFR 131.10(c) provides that states and authorized tribes may adopt sub-categories of a use and set the appropriate criteria to reflect varying needs of such sub-categories of uses. States and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow that discretion. However, the EPA has found that the clearer, more accurate, and refined the designated uses are in describing the state's or tribe's objective for a water body, the more effective those use designations can be in driving the management actions necessary to restore and protect water quality. [11]

The current regulation at § 131.10(g) and (h)(1) provides that states and tribes may not remove a designated use if it would also remove an existing use unless a use requiring more stringent criteria is added. Existing uses are “those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards.” Existing uses are known to be “attained” when both the use and the water quality necessary to support the use has been achieved. [12] The EPA recognizes, however, that all the necessary data may not be available. Where data may be limited, inconclusive, or not available, states and tribes have discretion to determine whether an existing use has been attained, based on either the use or the water quality. It is important to note that the prohibition on removing an existing use is not intended to apply to a situation where the state or tribe wishes to remove a use where removal would result in improving the condition of a water body. The intent of the regulation is to further the objective in CWA section 101(a) to “restore and maintain the chemical, physical, and biological integrity” of the nation's waters, not to prevent actions that make the water body more like its minimally impacted condition. For example, if a warm water fishery exists behind a dam, the existing use provision would not prevent the state from removing that dam because doing so would likely restore the natural cold water aquatic ecosystem.

3. Rationale for Revision

Adoption of Highest Attainable Use

As discussed above, states and tribes have flexibility to designate and revise uses in accordance with the provisions of § 131.10 which implements the requirement in 303(c)(2)(A) that standards shall be set to serve the purposes of the Act as set forth in Section) 101(a)(2) and 303(c)(2)(A). However, the EPA believes that it may be appropriate to provide greater clarity in the regulations implementing this requirement. For example, as part of the UAA process, a state or tribe may be able to demonstrate that a use supporting a particular class of aquatic life is not attainable. However, if some less sensitive aquatic organisms are able to survive at the site under current or attainable future conditions, the goals of the CWA are not served by simply removing the aquatic life use designation and applicable criteria without determining whether there is some alternate 101(a)(2) use or subcategory of such a use that is feasible to attain. The UAA process can be used to identify the highest aquatic life use that is attainable (i.e., highest attainable use). Under this proposal, the state or tribe would be required to designate that highest attainable use. However, as noted above, states and tribes have broad discretion to determine the appropriate level of specificity to use in identifying and defining designated uses, and nothing in this proposal is intended to narrow that discretion. To further clarify this in rule text, the proposal would add the following language to 131.10(g): “To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use.” Thus, while a state or tribe may wish to establish a new or revised use category or subcategory to meet the proposed HAU requirement, the state or tribe could also comply with this requirement by adopting the highest attainable use from its currently established use categories or subcategories or by adopting a location-specific use, or another defensible approach.

The EPA's current regulation at 40 CFR 131.6(a) requires that each state's or tribe's water quality standards submitted to the EPA for review must include “use designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the Act.” Sections 131.10(g) and 131.10(j) implement the CWA by authorizing a state or tribe to designate uses that do not include the uses specified in section 101(a)(2) or to remove protection for a use specified in section 101(a)(2) (or subcategory of such a use) only through a UAA. If the state or tribe demonstrates through a UAA that a 101(a)(2) use, or a subcategory of such a use, is not attainable, then in order to comply with this regulatory requirement, the state or tribe will need to adopt use designations that continue to serve the 101(a)(2) goal by protecting the highest attainable use unless the state or tribe has shown that no use specified in section 101(a)(2) is attainable.

This proposal is intended to clearly articulate a requirement to adopt the HAU in the EPA's regulation. HAU is defined in this proposal as “the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g).” With this definition, the EPA recognizes and affirms the primary role accorded to states and tribes under the CWA in establishing categories of designated uses and assigning those uses to specific water bodies within their jurisdiction. The EPA intends for states and tribes to use their existing use classification scheme to meet the HAU requirement whenever the state or tribe determines that it is appropriate to do so. The EPA is not requiring states and tribes to revise their use categorization scheme by developing new use categories or subcategories, although states and tribes are encouraged to develop them if they find it practical and appropriate to do so. While the EPA believes that there is often value in specifying more narrowly targeted aquatic life uses (e.g., warm water or cold water fishery), the EPA also recognizes that it may not be practical for states or tribes to adopt fine gradations of aquatic life uses in many cases. The proposed rule would thus not affect a state or tribe's discretion to determine the appropriate level of specificity in establishing designated uses.

When adopting the HAU, states and tribes must also adopt criteria to protect that use, as specified in § 131.11(a). Requiring the HAU to be adopted as an essential part of the UAA process is important to adequately implement both CWA sections 101(a)(2) and 303(c)(2)(A). Where uses specified in section 101(a)(2) are unattainable, it is important that states and tribes still strive to attain uses that continue to serve the purposes of the Act and also enhance the quality of the water.

In determining the HAU to adopt in place of an unattainable aquatic life, wildlife, and/or recreation use, states and tribes should use the same regulatory factors (at 40 CFR 131.10(g)) and data analysis that were used to evaluate attainability. When conducting this review and soliciting input from the public, states and tribes should consider not only what is currently attained, but also what is attainable in the future after achievable gains in water quality are realized. Such a prospective analysis may involve the following:

  • Identifying the current and expected condition for a water body;
  • Evaluating the effectiveness of best management practices (BMPs) and associated water quality improvements;
  • Examining the efficacy of treatment technology from engineering studies; and
  • Using water quality models, loading calculations, and other predictive tools.

Once a state or tribe has determined the HAU, there are several different approaches it may wish to consider for articulating the designated use in the relevant water quality standards regulations. The EPA's intent is for a state or tribe to have the flexibility to choose its preferred approach for articulating the HAU in regulation. The EPA provides the following example approaches, but does not intend states and tribes to be limited to only these approaches. The EPA invites comments on other approaches or examples that states and tribes could use when articulating the HAU, or examples of scenarios where the following approaches may not be appropriate. The EPA emphasizes that states and tribes are not required to develop new use categories or subcategories to meet the HAU requirement.

1. Use a refined designated use structure that is already adopted into state or tribal regulation: Where a state or tribe already has a refined designated use structure adopted into state regulations, they could consider adopting the “next best” attainable use that already exists in the use structure as the HAU. For example, consider a state with the following four aquatic life uses: exceptional, high, modified, and limited aquatic life use—each with associated dissolved oxygen criteria that protect the use. The state determines through a UAA (based on a factor at § 131.10(g)) that a particular stream cannot attain the designated “high aquatic life use” and associated dissolved oxygen criterion due to a low head dam and resulting impoundment. Because the dam cannot be removed or operated in such a way as to attain the dissolved oxygen criteria needed to protect the expected biological community at the site, the state adopts the “modified aquatic life use” and dissolved oxygen criterion to protect the revised use. The UAA documents that the “modified aquatic life use” reflects the HAU despite the disturbed condition of the water body.

2. Revise the current designated use structure to include more refined uses and/or sub-categories of uses: Some states or authorized tribes may not have a refined designated use structure adopted into their state or tribal regulations, but rather have a general use category expressed as a “general aquatic life use,” “fish and wildlife use,” “recreation use,” and so on. If a state or tribe finds that its only option upon determining that such a general use category is not attainable is to remove it altogether, a state or tribe may wish to consider revising its current designated use framework to include more refined uses and/or sub-categories, and adopt criteria to protect those uses.

For example, a state or tribe may be able to adequately demonstrate (consistent with 40 CFR 131.10(g)(2)) that natural conditions or water levels preclude the attainment of a use and associated water quality criteria. The state or tribe may document that it is infeasible to attain an aquatic life use associated with fish because the water is naturally intermittent. However, intermittent streams provide essential habitat for different types of aquatic life (e.g., aquatic invertebrates). Such an aquatic life use is likely attainable if not already attained. Therefore, in this scenario the state or tribe may wish to adopt a refined “intermittent aquatic life use” and criteria to protect that use in its statewide designated use framework because such a use category reflects the naturally expected aquatic life use for intermittent streams that could be applied to multiple streams in the state.

As another example, some states have chosen to refine their use categories to reflect the various biological communities that might be expected in a water body. If a state is interested in revising its current designated use structure, it may wish to define its uses based on the composition and structure of the aquatic life expected for each use with associated biological and dissolved oxygen criteria adopted into regulation. Incorporating such refinements into designated uses allows the state to tailor its use designations to reflect the actual biological community expected.

3. Designate a location-specific use and adopt criteria to protect that use: A state or tribe may determine that a use is unattainable for one particular parameter (e.g., altered pH due to highly mineralized geology, or a combined sewer overflow (CSO)-impacted use) or suite of parameters in a specific location. In such situations, the state or tribe may choose to adopt a use that more accurately reflects the location-specific expectations, such as a “pH limited aquatic life use,” a “habitat limited aquatic life use,” or a “minerals limited aquatic life use.” The state or tribe would then adopt a new set of criteria to protect that use, but could adopt all the same criteria levels as were protective of the original use, except for the parameter or parameters limiting the location-specific use. Such an approach would not require a state or tribe to add the location-specific use in its framework, but it could do so if later if it finds that other waters will fall into the same category.

The concept of HAU should not to be confused with “site-specific criteria.” A site-specific criterion is designed to protect the current unchanged designated use, but the criterion value may be different from the statewide or otherwise applicable criterion because it is tailored to account for site-specific conditions that may cause a given chemical concentration to have a different effect on one site than on another. By contrast, the criterion supporting a newly established highest attainable use is designed to protect the revised use associated with a different aquatic community expected in the water body.

In addition to this proposal requiring states and tribes to adopt the HAU, the EPA recommends that states and tribes consider the HAU during a triennial review. If new information becomes available during a triennial review to indicate that a use higher than what is currently designated is attainable, states and tribes should revise their WQS to reflect the HAU. As with the HAU requirement, states and tribes are not required to revise their currently established use categories during triennial review to allow for more refined designation of higher uses, though they may wish to consider doing so.

Revisions To Clarify When a UAA Is and Is Not Required

The EPA's proposal also revises § 131.10(g) to clarify that the factors at § 131.10(g) are only required to be considered when § 131.10(j) requires a UAA. The current language in § 131.10(g) is ambiguous on this point and thus has led to confusion as to whether § 131.10(g) applies to all use revisions or only those actions addressed in § 131.10(j). The EPA's 1998 ANPRM stated that the EPA's position, at the time, was that a UAA is not limited to actions addressed in § 131.10(j). However, the EPA has implemented the CWA to focus on uses specified in § 101(a)(2) and now believes that the better interpretation of its regulations is that the factors in 131.10(g) are only required to be considered when a state or tribe is demonstrating that a use specified in § 101(a)(2) or a subcategory of such a use is not attainable through a UAA. The EPA's interpretation is supported by § 131.10(j), that explains when a UAA is required, and § 131.3(g) that defines a UAA as “a structured scientific assessment of the factors affecting the attainment of the use which may include physical, chemical, biological, and economic factors as described in § 131.10(g).” When §§ 131.3(g), 131.10(g) and (j) are read together, it is clear that the factors at § 131.10(g) are only required to be considered when the state or tribe must do a UAA under § 131.10(j). This proposal adds language to §§ 131.10(g) and 131.10(j) to clarify the relationship between these two provisions and the intent of these provisions to implement CWA sections 101(a)(2) and 303(c)(2)(A). For all other designated uses, this proposal uses the term “uses not specified in section 101(a)(2)” to refer to uses discussed in section 303(c)(2)(A) but not included in section 101(a)(2). Section 303(c)(2)(A) and the EPA's regulation at § 131.10(a) requires the state or authorized tribe to take into consideration the “use and value” of water for public water supplies, propagation of fish and wildlife, recreational purposes, agricultural, industrial and other purposes, and also taking into consideration their use and value for navigation. The UAA demonstration satisfies this requirement for uses specified in 101(a)(2). And while states and authorized tribes are not required by regulation to conduct a UAA using factors at § 131.10(g) when designating and removing a use not specified in 101(a)(2), the EPA recognizes that UAAs may provide valuable information to a state or authorized tribe when deciding how to manage their waters and demonstrate consideration of a water's “use and value.”

Finally, the EPA is proposing to clarify § 131.10(k) to state when a UAA is not required. Specifically, § 131.10(k) is revised to articulate that a UAA is not required when a state or authorized tribe designates or has designated uses specified in section 101(a)(2) of the Act for a water body for the first time, removes a designated use that is not specified in section 101(a)(2) of the Act, or adopts a subcategory that requires criteria as stringent as the previously applicable criteria. The current structure of 131.10(j)(2) and 131.10(k) could result in situations where a UAA is not required by 131.10(k) but is required by 131.10(j)(2) thus leading to confusion. The EPA intends to eliminate this confusion by restructuring 131.10(k) as proposed.

The EPA invites comments on the proposed addition of 40 CFR 131.3(m), and the proposed amendments to § 131.10(g), § 131.10(j) and § 131.10(k). The EPA also invites comment on any other options it should consider or on the interpretations expressed in this section.

D. Requirements of Triennial Reviews

1. The EPA Proposal

The EPA is proposing to amend the triennial review requirements of paragraph (a) of § 131.20 to clarify that a state or tribe shall re-examine its water quality criteria during its triennial review to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected.

2. Rationale for Revision

Sections 303(a) through (c) of the CWA require that states and tribes adopt WQS applicable to their interstate and intrastate waters and that the EPA review and approve or disapprove these standards based on whether they are consistent with the Act. Section 303(c)(1) further requires states and tribes to hold public hearings at least once every 3 years for the purpose of reviewing applicable WQS and, as appropriate, modifying and adopting standards. The state or tribe decides whether and how to modify or adopt its WQS; however, any new or revised standards shall be submitted to the EPA for review and approval or disapproval.

The EPA adopted regulations in 1983 implementing these provisions at 40 CFR 131.20. This regulation requires that states and tribes hold a public hearing to review applicable WQS at least once every 3 years (i.e., a “triennial review”) and, as appropriate, modify and adopt standards. Public hearings on WQS provide an essential opportunity for stakeholders and the general public to participate in the WQS-setting process to provide input and raise issues to appropriate officials. In addition, the regulation requires states and tribes to consider whether any new information has become available that indicates if uses specified in CWA section 101(a)(2) that were previously unattainable are now attainable. 40 CFR 131.20(c) provides that the results of these reviews be submitted to the EPA (see also § 131.6(f)).

Stakeholders have expressed concern that states and tribes may retain criteria in their WQS that are no longer protective of designated uses for multiple triennial review cycles, despite the availability of new or updated EPA CWA section 304(a) criteria recommendations. While states and tribes are not required to use EPA's 304(a) criteria recommendations, the EPA agrees that it is important for states and tribes to consider any new or updated 304(a) criteria as part of their triennial review, in order to ensure that state or tribal water quality criteria reflect current science and protect applicable designated uses. In this regard, 40 CFR 131.20(a) requires that any waterbody segment with WQS that does not include the uses specified in CWA section 101(a)(2) be re-examined and updated if new information becomes available to indicate that previously unattainable CWA section 101(a)(2) uses are now attainable. However, because 40 CFR 131.20(a) does not include a parallel statement regarding criteria that support these uses, states and tribes may not re-evaluate their existing criteria to ensure that the criteria continue to be protective of the designated uses when new or updated 304(a) criteria recommendations become available. As a result, the EPA is proposing to include an explicit reference to 304(a) recommended criteria at 131.20(a), to ensure that new or updated 304(a) criteria are considered during triennial review.

The EPA invites comments on the proposed amendments to paragraph (a) of § 131.20. The EPA also invites comment on any other options it should consider or on the interpretations expressed in this section.

E. Antidegradation Implementation

The EPA is proposing to amend several provisions of § 131.12 related to implementing the antidegradation requirements. These include (1) clarifying the options available to states and tribes when identifying Tier 2 high quality waters, (2) clarifying that states and tribes must conduct an alternatives analysis in order to support state and tribal decision-making on whether to authorize limited degradation of high quality water, and (3) specifying that states and tribes must develop and make available to the public implementation methods for their antidegradation policies. The EPA is also proposing to add language to § 131.5(a) describing the EPA's authority to review and approve or disapprove state-adopted or tribal-adopted antidegradation policies. The language at § 131.5(a) will further specify that if a state or tribe has chosen to formally adopt implementation methods as water quality standards, the EPA would review whether those implementation methods are consistent with 131.12.

Background

Section 101(a) of the CWA emphasizes the prevention of water pollution and expressly includes the objective “to restore and maintain the chemical, physical and biological integrity of the Nation's waters (33 U.S.C. 1251) (emphasis added). The antidegradation requirements that the EPA incorporated by regulation in 1983 into 40 CFR 131.12 implement the maintenance aspect of CWA section 101(a) and are an essential component of the overall WQS program. Although designated uses and criteria are the primary tools states and tribes use to achieve the CWA 101(a) goals, antidegradation complements these by providing a framework for maintaining existing uses, for protecting waters that are either attaining or are of a higher quality than necessary to support the CWA 101(a)(2) goals, and for protecting state/tribal identified Outstanding National Resource Waters (ONRWs). Antidegradation plays a critical role in allowing states and tribes to maintain and protect the valuable resource of high quality water by ensuring that decisions to allow a lowering of high quality water are made in a transparent public manner and are based on a sound technical record.

In the Water Quality Act of 1987, Congress expressly affirmed the principle of antidegradation that is reflected in section 101 of the Act. In those amendments to the CWA, Congress incorporated a reference to antidegradation policies in section 303(d)(4)(B) of the Act (33 U.S.C. 1313(d)(4)(B)): “Standard Attained—For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable WQS, any effluent limitation based on a total maximum daily load or other waste load allocation established under this section, or any WQS established under this section, or any permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section” (emphasis added). This provision not only confirms that an antidegradation policy is an integral part of the CWA, but also explains the relationship of the antidegradation policy to other CWA regulatory programs. [13] Antidegradation reviews are applicable to revisions to effluent limitations based on a TMDL, wasteload allocation, or water quality standard, but they are not required for revisions to a TMDL, wasteload allocation, or water quality standard. [14]

High quality waters provide support for aquatic life and recreation and support unique and significant ecologies and species habitat. These attributes confer a special degree of resiliency and resistance to adverse effects, particularly as the nation's waters face an increasing degree of stress from anthropogenic influences. Therefore, maintenance and protection of high quality waters has never been more important.

Protection of waters that meet or exceed levels necessary to support the CWA uses is central to supporting both economic and community growth and sustainability. Such waters contribute to our public health, aquatic ecosystems, drinking water supplies, and to the welfare of families and communities. The health and growth of tourism, recreation, fishing, and businesses and the jobs they create rely on a sustainable source of clean water. Degradation of water quality may result in increasing public health risks, declining aquatic communities and ecological diversity, and increasing treatment costs that must be borne by ratepayers and local governments. Maintenance of waters that exceed levels necessary to support the CWA uses can sometimes save time and economic resources for a community in the long-term. Using an antidegradation program to prevent the degradation of a water body may be more cost-effective and efficient than long-term restoration efforts. In addition, maintaining a water body in its initial high quality condition helps ensure the preservation of unique attributes that may ultimately be impossible to fully restore in a number of situations.

Currently, 40 CFR 131.12 requires states and tribes to adopt an antidegradation policy and identify implementation methods for that policy. The state's or tribe's policy must provide protection for all existing uses, hereafter referred to as “Tier 1” protection (40 CFR 131.12(a)(1)). The policy must also require the maintenance and protection of high quality (“Tier 2”) waters unless the state or authorized tribe finds that “allowing lower water quality is necessary” to accommodate “important economic or social development in the area in which the waters are located,” a process hereby referred to as “Tier 2 review” (40 CFR 131.12(a)(2)). Additionally, the policy must provide for the maintenance and protection of water quality in ONRWs, identified by the state or tribe, hereinafter referred to as “Tier 3” waters (40 CFR 131.12(a)(3)). This proposal focuses on different aspects of state and tribal implementation methods to ensure effective and transparent implementation of Tier 2 high quality water antidegradation protection provisions.

In this regard, the EPA indicated in its 1998 ANPRM that “on a national scale, antidegradation is not being used as effectively as it could be,” a concern that continues today and is echoed by stakeholders who have identified antidegradation as an underused component of water quality protection. Although the federal antidegradation regulation is intended to help states and tribes protect and maintain high quality waters, the number of waters that are identified as impaired continues to grow. The benefits of high quality waters may be jeopardized if states and tribes do not consider the long-term consequences of lowering water quality or evaluate the alternatives that might be available to reduce the need to accommodate increased pollution.

While the EPA has issued guidance in the past to help facilitate state and tribal implementation of the regulatory antidegradation provisions, the EPA received substantial feedback from stakeholders that existing CWA antidegradation regulatory provisions and related guidance have not been fully successful in ensuring consistent and effective implementation of Tier 2 high quality water protections. Moreover, states have recognized the limits of national guidance in the area of CWA implementation. Most recently on March 30, 2011, the Environmental Council of the States published a resolution entitled “Objection to U.S. Environmental Protection Agency's Imposition of Interim Guidance, Interim Rules, Draft Policy and Reinterpretation Policy” in which it states that the “EPA should minimize the use of interim guidance, interim rules, draft policy and reinterpretation policy and eliminate the practice of directing its regional or national program managers to require compliance by states with the same in the implementation of delegated programs.” For these and the other reasons discussed above, the EPA is, therefore, revising its regulation to update the requirements for transparent and effective state and tribal antidegradation implementation.

1. The EPA Proposal—Part 1: Identification of High Quality Waters

The EPA is proposing to add paragraph (b)(1) to § 131.12 to provide that high quality waters may be identified on a parameter-by-parameter basis or on a water body-by-water body basis, as long as the state or tribal implementation methods ensure that waters are not excluded from Tier 2 protection solely because not all of the uses specified in CWA section 101(a)(2) are attained. The EPA's established view is that either method of identifying high quality waters is acceptable, but is proposing today to codify that flexibility for states and tribes into regulation. By “the uses specified in CWA section 101(a)(2)” the EPA means the uses and functions encompassed within the CWA section 101(a)(2), such as aquatic life support, wildlife support, consumption of aquatic life, and recreation.

The nationally applicable water quality standards regulation at § 131.12 describes high quality waters as those where the quality of the waters exceed levels necessary to support the propagation of fish, shellfish, and wildlife and recreation in and on the water (i.e., the CWA goals articulated in section 101(a)(2)). States typically use one of two approaches to identify high quality waters. While the EPA specified in the “Water Quality Guidance for the Great Lakes System” that high quality waters subject to 40 CFR part 132 must be identified using a parameter-by-parameter approach, the WQS regulation applicable to all states and tribes (at 40 CFR part 131) does not currently specify how a state or tribe must identify its high quality waters for purposes of the antidegradation requirements. States and tribes using a parameter-by-parameter approach identify which waters are of high quality for purposes of a Tier 2 review at the time the activity that would lower water quality is proposed. Under this approach, when an activity is proposed that would potentially lower water quality in any high quality water, the state or tribe would determine for which parameters the water quality is better than applicable criteria developed to support the CWA 101(a)(2) uses. Each parameter for which water quality would be lowered by the permitted activity is considered independently and, once a parameter is determined to exist at a level that is better than applicable criteria, the state or tribe would conduct a Tier 2 review for that parameter. In contrast, states and tribes using a water body-by-water body approach typically identify high quality waters in advance on a list by weighing a variety of factors to classify a water body's overall quality. If an activity is proposed that would potentially lower water quality, the state would first determine if that water body is on its Tier 2 list, and thus eligible for Tier 2 review.

The EPA has found, however, that it is currently possible for high quality waters to be identified on a water body-by-water body basis in a manner that the EPA believes may be contrary to the intent of the antidegradation provisions. In some cases, states or tribes have implemented antidegradation such that, where a water body is listed on the CWA section 303(d) list based on one or more parameters affecting only one of the CWA 101(a)(2) uses, the state or tribe automatically considers the water no longer high quality. As a result, the state or tribe would no longer conduct Tier 2 reviews before allowing a lowering of water quality for any parameter. However, individual Section 303(d) listings can be a potentially poor indicator of the overall quality of a surface water because, although one or more of the uses specified in 101(a)(2) is listed as impaired, one or more other uses specified in 101(a)(2) might still be attained and the water quality may be higher than necessary to support such use(s). Such a means of identifying high quality waters would categorically deny Tier 2 protection to a water body that is still of high quality with respect to other uses specified in CWA 101(a)(2).

If a water body can be excluded from Tier 2 protection solely because one of the uses specified in 101(a)(2) is not being attained, without a holistic evaluation of the water body, it is possible that a large number of state and tribal waters would never be subject to Tier 2 review for any parameter. Yet those waters may in fact be high quality waters relative to other unimpaired uses. Thus, such water bodies could be degraded further without a public participation process. For example, mercury is widely prevalent in U.S. waters and is known to bioaccumulate in fish tissue, thus affecting the water body's ability to support protection and propagation of aquatic life. A recent statistically based EPA sampling survey found predator species fish tissue in 49 percent of the sampled population of lakes in the conterminous United States with surface areas greater than or equal to 1 hectare exceeded the EPA's recommended 0.3 ppm tissue-based mercury criterion (“National Study of Chemical Residues in Lake Fish Tissue,” EPA 823-R-09-006). If all states and tribes used an approach for identifying high quality water whereby any impairment rendered the water body ineligible for Tier 2 protection, almost half of the lakes would automatically be excluded from Tier 2 high quality water protection. The EPA's view is that this approach would not be consistent with the objectives of the CWA and the intent of the antidegradation regulation.

The EPA recognizes that there may be multiple ways for a state or tribe to develop a water body-based approach for identifying high quality waters consistent with the goals of the CWA and the antidegradation regulation. The EPA understands that in some cases, § 131.12(a)(2) has been interpreted to mean that if any one of the uses reflecting CWA 101(a)(2) goals is not supported, that the water body as a whole cannot be considered high quality. The regulatory language, however, is derived from the language in CWA 101(a)(2) that specifies it is a national goal to achieve water quality that provides for “the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water.” The intent of this CWA statement is to strive towards all of the uses specified in the provision and not to stop striving towards all of the uses simply because one of them is not being achieved. The EPA's proposal and interpretation of 40 CFR 131.12(a)(2) is consistent with the intent of the CWA.

Rather than excluding a water body from Tier 2 protection solely because not all of the uses specified in CWA section 101(a)(2) are attained, the EPA would expect the state or tribe to consider a combination of chemical, biological, and physical characteristics in identifying high quality waters. In other words, the EPA would expect the state or tribe to use all the relevant available data to conduct an overall holistic assessment of these characteristics in order to determine whether a water body would receive Tier 2 protection. Some of the factors a state or tribe may consider include, but are not limited to, existing aquatic life uses including aquatic assemblages, habitat, hydrology, geomorphic processes, and landscape condition; existing recreational uses and recreational significance; and the overall value and significance of the water body from an ecological and public-use perspective. Numerous tools, such as biological, habitat, hydrologic, geomorphic, and landscape assessments or the environmental impact statement rating system, could be useful to states and tribes in making and supporting these judgments.

For purposes of better understanding this proposal, consider the following examples.

  • Water Body A has aquatic life and recreational designated uses and is listed as impaired for methylmercury and bacteria, pursuant to CWA section 303(d). Under this proposed rule, a state or tribe using a water body-by-water body approach could exclude Water Body A from its Tier 2 list because the state or tribe could show that high levels of methylmercury prevent the attainment of protection and propagation of fish, shellfish and wildlife, and that high levels of bacteria prevent attainment of recreation in and on the water.
  • Water Body B has aquatic life and recreational designated uses and is listed pursuant to CWA section 303(d) as impaired for methylmercury, but not for bacteria or any other pollutant necessary to protect recreation. Under a water body-by-water body approach, the proposed rule would prohibit the state or tribe from excluding Water Body B from its Tier 2 list solely because the water body cannot attain protection and propagation of aquatic life due to methylmercury. Water Body B is still attaining recreation in and on the water as specified in section 101(a)(2) of the Act.

The EPA invites comments on the proposed addition of paragraph (b)(1) to § 131.12. Additionally, the EPA is considering whether to specify how a state or tribe determines for which parameters Tier 2 review must be conducted depending on the approach used to identify high quality waters. The EPA requests comment on whether, once a high quality water is identified, the Tier 2 review process for that water body should differ depending on the approach used to identify it as high quality. As the EPA has explained before in the ANPRM and in the “Water Quality Guidance for the Great Lakes System” (40 CFR part 132), for high quality waters identified through the parameter-by-parameter approach, states and tribes conduct Tier 2 reviews for all parameters for which the water quality has been identified as better than the applicable criteria developed to support the CWA 101(a)(2) uses. Each parameter for which water quality would be lowered by the permitted activity is considered independently and, once a parameter is determined to exist at a level that is better than applicable criteria developed to support the CWA 101(a)(2) uses, the state or tribe would conduct a Tier 2 review for that parameter.

The EPA has made a variety of different statements about how Tier 2 reviews are conducted once the water body is identified as Tier 2 using a water body-by-water body approach. 15 16 Thus, for the water body-by-water body approach the EPA could specify that Tier 2 reviews must be conducted for all parameters for which the water quality has been identified as better than the applicable criteria developed to support the CWA 101(a)(2) uses.

Alternatively, the EPA could specify that for waters identified as high quality on a water body-by-water body basis, Tier 2 reviews are only required for parameters associated with the 101(a)(2) uses currently being supported. For example, in Water Body B above, a Tier 2 review would only be required for each parameter that is better than the applicable criteria to protect recreation. And, a Tier 2 review would not be required for any parameter only associated with the aquatic life use (i.e., and not also associated with the recreation use).

The EPA could also specify that states and tribes have discretion on how to conduct the Tier 2 reviews. The EPA also invites comments on any other options it should consider or on the interpretations expressed in this section.

2. The EPA Proposal—Part 2: Alternatives Analysis

The EPA is proposing to add paragraph (b)(2) to 40 CFR 131.12 to ensure that states and tribes will only make a finding that lowering water quality is necessary, as required in § 131.12(a)(2), after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed activity. This proposal also provides that if a state or tribe can identify any practicable alternatives, the state or tribe must choose one of those alternatives to implement when authorizing a lowering of high water quality.

Section 131.12(a)(2) also provides that high quality water shall be maintained and protected unless the state or tribe finds (after satisfaction of public participation and intergovernmental coordination requirements) that “allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located” (40 CFR 131.12(a)(2)). As discussed previously, this process is called a Tier 2 review. Tier 2 review calls for the state or tribe to investigate two questions: (1) Whether allowing lower water quality is necessary to accomplish the proposed activity, typically by examining alternative ways of accomplishing the activity through an alternatives analysis; and (2) whether the proposed activity that will result in lower water quality will accommodate important economic or social development, through a socio-economic analysis. States and tribes may determine the order in which to complete the two aspects of the finding. In addition, states have discretion to decide there is no need to answer the second question if the answer to the first question is “no.” For example, a state or tribe may choose to first ask whether lowering of water quality is necessary to accomplish the proposed activity, and if the answer is “no,” decide at that point not to investigate whether the proposed activity will accommodate important economic or social development. While this finding is a state or tribal responsibility, the EPA recognizes that states and tribes may establish processes requiring the entity responsible for conducting the proposed activity to provide information or conduct the necessary evaluations.

Although the existing regulation implies that the state or tribe must have a means of evaluating whether a lowering of water quality is necessary to accomplish the proposed activity, currently there is no explicit requirement to conduct an alternatives analysis. Even if a state or tribe conducts an alternatives analysis, the regulation does not specify that, where there is a practicable alternative, the state or tribe must select an alternative for implementation. For these purposes, the term “practicable” means that the alternatives considered must be available for the proposed activity, technologically possible, able to be done or put into practice successfully at the site in question, and economically viable. This lack of specificity can result in situations where a state or tribe does not evaluate less-degrading or non-degrading alternatives to the proposed activity, and thus lacks a reasoned basis for determining if the proposed lowering of water quality is necessary to accomplish the proposed activity, or not. The EPA's view is that this lack of specificity can lead to state or tribal decisions to lower water quality without appropriately making a finding that a lowering is necessary, contrary to section 131.12(a)(2).

This issue was considered carefully as part of the development of updated water quality requirements for the Great Lakes states in 1995. The regulation at 40 CFR part 132, Appendix E, addresses it by requiring that any entity seeking to degrade high water quality must submit an antidegradation demonstration for consideration by the state. This demonstration includes an analysis identifying any cost-effective pollution prevention alternatives and techniques, as well as an analysis identifying alternative or enhanced treatment techniques (and their relative costs) that are available to the entity and that would eliminate or significantly reduce the extent to which the increased loading results in a lowering of water quality. States and tribes should tailor the level of detail and documentation in antidegradation reviews to the specific circumstances encountered. The state or tribe then uses that information to determine whether or not the lowering of water quality is necessary.

Under the approach proposed today, the state or tribe would conduct its alternatives analysis by considering a range of non-degrading and minimally degrading practicable alternatives to the proposed activity. Similar to the alternatives analysis provided for in 40 CFR part 132, this evaluation would include a consideration of any non-degrading or minimally degrading cost-effective pollution prevention alternatives and enhanced treatment techniques, but would not be limited to those. For example, alternatives could include no discharge, pollution prevention measures, process changes, reduction in the scale of the project, advanced or different treatment technologies, water recycling and reuse, land application, seasonal or controlled discharge options avoiding critical water quality periods, and alternative discharge locations, if such measures were practicable.

Once the state or tribe has identified a range of practicable alternatives, the state or tribe would evaluate the alternatives in terms of the extent of degradation that would result. By initially considering practicable alternatives that represent a range from non-degrading to minimally degrading as opposed to simply identifying the single least degrading alternative, the state or tribe then has a basis to make the required finding, considering the implications and technological and economic practicability of the alternatives more holistically, and considering any impacts beyond the direct effects on water quality, such as cross-media impacts (e.g., impacts on land due to land application of pollutants found in water). This will allow the state or tribe to determine whether the lowering of water quality is necessary to accommodate important economic or social development per Part 131.12(a)(2). As reflected in the Great Lakes System regulation at Part 132, the EPA believes states and tribes should tailor the level of detail and documentation of alternatives analyses in antidegradation reviews to the significance and magnitude of the particular circumstances encountered.

The EPA invites comment on the proposed addition of paragraph (b)(2) to § 131.12. The EPA also invites comment on any other options it should consider or on the interpretations expressed in this section.

3. The EPA Proposal—Part 3: Developing and Making Available to the Public Antidegradation Implementation Methods

The EPA is proposing to add paragraph (b) to 40 CFR 131.12 to specify that states and tribes must develop and make available to the public antidegradation implementation methods to improve program implementation, ensure consistency with the CWA, and provide transparency as to applicable state and tribal antidegradation review requirements. The EPA is also making changes to language in § 131.5(a) describing the EPA's authority to review and approve or disapprove state-adopted or tribal-adopted antidegradation policies. The language in § 131.5(a) further specifies that if a state or tribe has chosen to formally adopt implementation methods as water quality standards, the EPA would review whether those implementation methods are consistent with § 131.12. In addition to the proposed requirements included in this proposal, the EPA is considering and requesting comment on whether the EPA should include a requirement that antidegradation implementation methods be adopted as WQS and thus subject to the EPA's review and approval or disapproval. Alternatively, the EPA is considering and requesting comment on whether the EPA should specify that states and tribes may, but are not required to, adopt antidegradation implementation methods as WQS.

Currently there is confusion whether the existing regulations require states and tribes to adopt antidegradation implementation methods as WQS. Stakeholders have raised concerns that some states and tribes have not developed or made publically available antidegradation implementation methods, despite the fact that the regulation requiring this was established in 1983. Specifically, they are concerned that the absence of such methods reduces transparency in the implementation of states' and tribes' policies, and potentially limits the ability to ensure protection of existing uses, high quality waters, and ONRWs to the full extent required by the regulation. The CWA at section 101(e) specifically states that “public participation in the development, revision, and enforcement of any regulations, standard, effluent limitation, plan, or program established . . . under this Act shall be provided for, encouraged, and assisted. . . .” The EPA encourages states and tribes to provide a robust and transparent process for developing and making available to the public their antidegradation implementation methods and for implementing those methods in specific cases.

Section 501(a) of the CWA (33 U.S.C. 1361(a)) authorizes the EPA Administrator to “prescribe such regulations as are necessary to carry out [her] functions under this Act.” The CWA, under section 303(c), also specifies that the EPA Administrator must review and approve new or revised WQS after determining they are consistent with applicable requirements under the CWA. The EPA believes that antidegradation implementation methods are an important component of implementing antidegradation policies. Thus, the EPA is considering and requesting comment on whether the EPA should include a requirement that implementation methods be formally adopted as WQS and thus subject to the EPA's review and approval or disapproval. Formal adoption of implementation methods as WQS, along with EPA review under section 303(c) of the Act, would help ensure the consistent and effective implementation of the state or tribe's antidegradation provisions so that waters will be maintained and protected in accordance with the objectives of the Act. [17] At the same time, the EPA acknowledges the primary role of states and tribes in establishing and implementing water quality standards. The EPA is thus alternatively considering and requesting comment on whether to specify in rule that states and tribes may, but are not required to, adopt antidegradation implementation methods as WQS subject to EPA approval. In this case, states and tribes must develop antidegradation implementation methods, and must make them available to the public, but they would not be subject to EPA review and approval or disapproval unless the state or tribe chose to formally adopt them as WQS.

Additionally, antidegradation is an essential part of WQS and state and tribal approaches to implementing antidegradation requirements may have direct implications for NPDES permits, as well as other federal permits and licenses for activities that affect water quality. The EPA believes that this may be an additional reason why the regulations should require states and tribes to formally adopt, after providing an opportunity for public involvement, and obtain EPA approval for antidegradation implementation methods. Lastly, state and tribal antidegradation programs that have antidegradation implementation methods adopted into regulations are more transparent to stakeholders and the public, as well as provide greater clarity to regulated industry.

The “Water Quality Guidance for the Great Lakes System” (40 CFR part 132) provides that an acceptable antidegradation policy and implementation methods are required elements of a state's or tribe's WQS program for waters of the Great Lakes system. That regulation requires that Great Lakes states and tribes adopt provisions into their policy and implementation methods that are consistent with a list of specifications, including details on how high quality waters are to be identified and on the components of antidegradation Tier 2 reviews.

Consistent with this “Water Quality Guidance for the Great Lakes System” requirement and for the reasons explained, the EPA is considering and seeking comments on a revision to the antidegradation regulation at 40 CFR 131.12 that would require states and tribes to adopt antidegradation implementation methods in order to improve program implementation, ensure consistency with CWA, and provide transparency as to applicable state or tribal antidegradation review requirements. If the EPA were to finalize such a requirement, the EPA would expect that a state or tribe's adopted implementation methods would describe how the state or tribe intended to implement each aspect of its policy, consistent with § 131.12(a), as well as how antidegradation decisions would be documented. This would provide sufficient information so that the public and the EPA would understand the extent to which activities affecting water quality are being authorized consistent with the state's or tribe's antidegradation policy and other CWA requirements.

The EPA invites comments on the proposed addition of paragraph (b) to § 131.12. As previously mentioned, there is confusion whether the existing regulations require states and tribes to adopt antidegradation implementation methods as WQS. The EPA requests comment on whether the EPA should require, as part of Section 131.12(b), that implementation methods be adopted as WQS and thus subject to the EPA's review and approval or disapproval. If the EPA makes adoption of implementation methods a requirement, the EPA is also considering corresponding revisions to sections 131.5(a) and 131.6(d). Specifically, the EPA requests comment on whether a corresponding revision should be made to section 131.6(d) to clarify that implementation methods are one of the minimum requirements for a water quality standards submission. Alternatively, the EPA is requesting comment on whether the EPA should explicitly specify in regulation that states and tribes are not required to adopt antidegradation implementation method as WQS. Finally, the EPA invites comments on any other options it should consider or on the interpretations expressed in this section.

4. Minimum Elements of an Antidegradation Implementation Method

The EPA's basis for taking approval or disapproval action on a state's or a tribe's antidegradation policy is whether the policy is consistent with the CWA and the water quality standards regulations at 40 CFR § 131.12. While the current regulations do not require states or tribes to adopt antidegradation implementation methods as water quality standards, if a state or tribe chooses to do so, the EPA would review a state's or tribe's implementation methods on the basis of ensuring that the methods do not undermine the state's or tribe's own antidegradation policy. This proposed revised antidegradation regulation continues to provide for a wide range of state and tribal approaches to antidegradation. States and tribes have considerable discretion in how they address each of the elements of antidegradation implementation specified in the regulation. To facilitate development of implementation methods, the EPA is providing in this preamble a list of the areas states' and tribes' implementation methods would need to address, at a minimum, to be consistent with the WQS regulation. This list is based on requirements currently found in the federal antidegradation regulation, as well as proposed requirements found in this action. Again, how states and tribes address each of these areas in their methods is within their discretion, as long as it does not undermine their antidegradation policy or is otherwise inconsistent with the Act or EPA's regulations.

a. Scope and applicability: the state or tribe should describe the scope and applicability of their antidegradation policy.

b. Existing uses protection: the state or tribe will ensure the maintenance and protection of all existing uses and the water quality necessary to protect the existing uses.

c. High quality water protection

i. Identification of high quality water: the state or tribe will identify high quality waters on a parameter-by-parameter basis or a water body-by-water body basis, as long as the state's or tribe's implementation methods ensure that waters are not excluded from Tier 2 protection solely because not all of the uses specified in CWA section 101(a)(2) are attained.

ii. Alternatives analysis and social/economic analysis: the state or tribe will determine whether the lowering of water quality that would result from a proposed activity is necessary to accommodate important economic or social development in the area in which the waters are located through an alternatives analysis and a social and/or economic analysis.

iii. Public participation and intergovernmental coordination: the state or tribe will ensure full satisfaction of the public participation and intergovernmental coordination provisions of the state's or tribe's continuing planning process in any finding that will allow lower water quality.

iv. Requirements for point and nonpoint sources: the state or tribe will ensure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control when allowing a lowering of water quality.

d. ONRW protection: the state or tribe will ensure the maintenance and protection of water quality for waters identified as ONRWs.

e. Thermal Discharges: The state or tribe will ensure consistency with Section 316 of the Act in cases that involve potential water quality impairment associated with thermal discharges.

5. How does this proposal affect states or authorized Tribes for which the EPA has promulgated antidegradation implementation methods?

The revised WQS regulation will apply to all states, authorized tribes, and territories, regardless of whether or not the EPA has previously promulgated an antidegradation policy or implementation methods for the state or tribe. Therefore, any previously promulgated antidegradation policies or implementation methods may require revision to meet the new requirements of Section 131.12.

F. WQS Variances

1. Background

The EPA has encouraged states and tribes to utilize WQS variances [18] (hereafter referred to as “variances”), where appropriate, as an important WQS tool that provides states and tribes time to make progress towards attaining a designated use and criteria. The EPA has offered input and support for variances through Office of General Counsel legal decisions, [19] guidance, memoranda, and approval actions for many years. These documents specifically explain the EPA's interpretation that variances may be granted if the state or authorized tribe demonstrates that the variance meets the same requirements as a permanent [20] designated use change, even though the WQS regulation lacks explicit provisions on the issue. As a result, the EPA has heard from states, tribes, and stakeholders that there is confusion, inconsistency, and mixed interpretations about how, when, and where variances may be used appropriately (e.g., with regard to nutrients and implementation of numeric nutrient criteria). In particular, the EPA has found that this WQS tool is underutilized. For example, since tracking WQS variance submittals in 2004, four EPA Regions have never received a WQS variance submittal. However, the EPA has found that where states and tribes and their stakeholders have more specificity in regulation regarding variances, such as those states and tribes covered by the “Water Quality Guidance for the Great Lakes System” (i.e., Great Lakes Initiative) rulemaking at 40 CFR part 132, they are successfully adopting and submitting WQS variances. This proposed rule is intended to provide this specificity nationally.

The CWA specifies a national goal at Section 101(a) to restore and maintain the chemical, physical and biological integrity of the Nation's waters and an interim goal in Section 101(a)(2) that, “wherever attainable,” water quality provide for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water. In implementing the CWA, the regulation at 40 CFR 131.10 establishes provisions relating to the management of designated uses. In 1977, an Office of General Counsel legal decision considered the practice of temporarily downgrading the WQS as it applies to a specific discharger rather than permanently downgrading an entire water body or waterbody segment(s) and determined that such a practice is acceptable under the EPA's existing regulations as long as the variance is adopted consistent with the substantive and procedural requirements for permanently downgrading a designated use. In other words, a state or tribe may change the standard in a more targeted way rather than remove the standard all together. The EPA further explained that it would be appropriate to grant a variance based on any of the six factors for removing a designated use as listed in § 131.10(g). [21]

The state practice described in the Office of General Counsel legal decision became known as adopting a “variance” to WQS. Specifically, a variance is a time-limited designated use and criterion that is targeted to a specific pollutant(s), source(s), and/or water body or waterbody segment(s) that reflects the highest attainable condition during the specified time period. Variances are different from changes to the designated use and associated criteria in that they are intended as a mechanism to provide time for states, authorized tribes and stakeholders to implement adaptive management approaches that will improve water quality where the designated use and criterion currently in place are not being met, but still retain the designated use as a long term goal. Variances are limited in scope and are an environmentally preferable tool over a designated use change because variances retain designated use protection for all pollutants as they apply to all sources with the exception of those specified in the variance. Even the discharger who is given a variance for one particular constituent is required to meet the applicable criteria for all other constituents. The variance is given for a limited time period and the discharger must either meet the WQS upon the expiration of this time period or the state or tribe must adopt a new variance or re-justify the current variance subject to EPA review and approval. Thus, when properly applied, a variance can lead to improved water quality over time, and in some cases, full attainment of designated uses due to advances in treatment technologies, control practices, or other changes in circumstances, thereby furthering the objectives of the CWA.

Presently, the nationally applicable WQS regulation only mentions variances in 40 CFR 131.13. This provision indicates that variance policies are general policies affecting the application and implementation of WQS, and that states and tribes may include variances policies in their state and tribal standards, at their discretion. The EPA provided variance procedure requirements when it promulgated WQS for Kansas (§ 131.34(c)), Puerto Rico (§ 131.40(c)), and the Great Lakes System (40 CFR part 132, Appendix F, Procedure 2). However, the nationally applicable regulation does not explicitly address questions such as when a variance can be granted, how a variance must be justified, what is required during the term of the variance, or for how long a variance can be granted. The EPA's established position has been that variances, as time-limited and narrow use revisions, are appropriate WQS tools that must go through public review and require the EPA's review and approval. [22] This position is supported by the EPA's practice regarding variances. [23] Today, we recognize a more direct link to the CWA Section 101(a) goal of “restore and maintain” for variances. WQS variances are consistent with the “restore” aspect of the goal since variances are intended to allow incremental environmental progress in achieving designated uses. As described in detail in section III.F.2, the EPA is proposing a set of variance provisions that are in many ways parallel to the regulations in 131.10, but are tailored to better fit the circumstances where variances will allow for environmental progress toward achieving the goals of the CWA. The EPA notes that its understanding and past practice allows for variances whether or not those uses are specified in Section 101(a)(2), however, the demonstration may differ.

States and tribes have expressed that variances are useful in a number of circumstances where the state or tribe has demonstrated that the designated use and criterion are not attainable today (or for a limited period of time), but may be attainable in the longer term. Examples include when:

  • Attaining the designated use and criterion is not feasible under the current conditions (e.g., attainment of numeric nutrient criteria would result in substantial and widespread social and economic impact) but could be feasible should circumstances change (e.g., development of less expensive pollution control technology or a change in local economic conditions); or
  • The state or tribe does not know whether the designated use and criterion can be attained, but feasible progress toward attaining the designated use and criterion can still be made by implementing known controls and tracking environmental improvements (e.g., complex use attainability challenges involving legacy pollutants).

There are a variety of tools available to states, tribes and dischargers that can provide time to meet regulatory requirements; however, the most common regulatory tools considered are variances and permit compliance schedules. Which tool is appropriate depends upon the circumstances. Variances can be appropriate to address situations where it is known that the designated use and criterion are unattainable today (or for a limited period of time) but feasible progress could be made toward attaining the designated use and criterion. A permit compliance schedule, on the other hand, may be appropriate when the use is attainable, but the permittee needs additional time to modify or upgrade treatment facilities in order to meet its WQBEL such that a schedule and resulting milestones will lead to compliance “as soon as possible” with the WQBEL based on the currently applicable WQS. (See CWA section 507(17) for a definition of “Schedules of compliance” and 40 CFR 122.47).

The EPA is proposing and soliciting comment on revisions to the WQS regulation that will provide more specificity and clearer requirements on the development and use of variances. Such revisions will establish requirements to help improve water quality by allowing states and tribes time to work with stakeholders to address any challenges and uncertainties associated with attaining the designated use and the associated criterion. These revisions will also provide assurance that further feasible progress toward the designated use and criterion will be made during the variance period.

The EPA's proposed regulatory provisions for variances at § 131.14 address the following key topic areas: (1) Applicability, (2) submission requirements, (3) implementing variances, (4) how to renew a variance, and (5) conforming changes to §§ 131.34 and 131.40. A discussion of this proposal and the rationale for each proposed regulatory provision follows.

2. Rationale and the EPA Proposal

a. Part 1—Applicability of Variances

i. The Scope of a Variance

To provide clarity, promote consistency, and avoid conflicting interpretations of WQS variances, the EPA is proposing a new regulatory definition for WQS variance at § 131.14. A water quality standards variance (WQS variance) is a time-limited use and criterion for a specified pollutant(s), permittee(s), and/or water body or waterbody segment(s) that reflect the highest attainable condition during the specified time period. Variances are WQS subject to EPA review and approval or disapproval and must be consistent with § 131.14. As WQS, variances are subject to § 131.20(a) and thus must be reviewed on a triennial basis. States and tribes continue to have broad discretion on the structure of their triennial reviews and can decide whether and how to modify or adopt WQS as a result of a triennial review. The EPA is also proposing to specify at § 131.14(a)(1) that all other applicable water quality standards not specifically addressed by the variance remain applicable.

Typically, states find variances that apply to a specific pollutant(s) and discharger(s) to be most useful. If a state believes that the designated use and criterion is unattainable for a period of time because the discharger cannot meet its WQBEL, the state may grant a discharger-specific variance so long as the variance is consistent with the CWA and implementing regulation.

Similarly, if a state or tribe believes that the designated use and criterion is unattainable as it applies to multiple permittees because they are all experiencing challenges in meeting their WQBELs for the same pollutant for the same reason, regardless of whether or not they are located on the same water body, a state or tribe may streamline its variance process by granting one variance that applies to all these dischargers (i.e., a multiple discharger variance) so long as the variance is consistent with the CWA and implementing regulations. The EPA recognized the utility of a multiple discharger variance and its distinction from an individual discharger variance in the “Water Quality Guidance for the Great Lakes System: Supplementary Information Document” (SID; EPA-820-B-95-001; March 1995). The EPA provided further clarification regarding multiple discharger variances in the “Water Quality Standards for the State of Florida's Lakes and Flowing Waters; Final Rule” (75 FR 75790, December 6, 2010). More recently in March 2013, the EPA provided a set of frequently asked questions to assist states and tribes in developing credible rationales for multiple discharger variances. [24]

Where a state or tribe can demonstrate that the designated use and criterion currently in place for a specific pollutant is not attainable immediately (or for a limited period of time) for an entire water body, the state or tribe may adopt a waterbody variance as an alternative to a designated use change for the water body so long as the variance is consistent with the CWA and implementing regulation. In such an instance, the variance applies to the water body itself, rather than to any specific source or sources. A waterbody variance provides time for the state or tribe to work with both point and nonpoint sources to determine and implement adaptive management approaches on a waterbody/watershed scale to achieve pollutant reductions and strive toward attaining the water body's designated use and associated criteria.

States and tribes retain discretion as to whether, when, and where to adopt variances. However, consistent with the EPA's current position, should a state or tribe choose to grant a variance, it is subject to the EPA's review and approval or disapproval—regardless of the scope of the variance.

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section. The EPA also invites comment on the applicability of variances to individual dischargers, multiple dischargers and to entire water bodies.

ii. An EPA Approved Variance Is Only Applicable for CWA Section 402 Permitting Purposes and in Issuing Certifications Under Section 401 of the Act

The proposed WQS regulation at 40 CFR 131.14(a)(2) would specify that where a state or authorized tribe adopts a variance, the state or tribal regulations must continue to reflect the underlying designated use and criterion unless the state or tribe adopts and the EPA approves a revision to the designated use and criterion as consistent with § 131.10 or § 131.11. The interim requirements specified in the variance apply only for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act for the pollutant(s), permittee(s) and/or water body or waterbody segment(s) covered by the variance.

To date, the EPA's available guidance has characterized variances as temporary changes to the designated use; however, such a characterization might imply that the variance replaces the designated use while the variance is in effect. This has led to conflicting interpretations of how variances affect the implementation of WQS through CWA programs, such as NPDES permits and the CWA 303(d) requirements.

The CWA and implementing regulation direct the states to add waters that are not attaining any applicable WQS to their 303(d) impaired waters list. Specifically, CWA section 303(d)(1)(A) states that “each state shall identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1)(A) and section 301(b)(1)(B) of this title are not stringent enough to implement any water quality standards applicable to such waters”(emphasis added). Stakeholders have expressed concern that if the interim requirements do not replace the designated use and criterion, there will effectively be two WQS applicable for purposes of implementing the CWA section 303(d) program where a variance has been approved. However, the interim requirements do not replace the designated use and criteria for the water body as a whole. Discharger-specific variances affect the development of WQBELs for the discharger(s) specified in the variance; they do not affect the designated use and criterion that apply to the rest of the water body. In addition, variances are time-limited and intended as a tool to facilitate water quality improvements, not to revise the long term goals for a water body. Therefore, any implementation of CWA section 303(d) must continue to be based on the underlying designated uses and criteria for the water body rather than the interim requirements.

By requiring state and tribal regulations to maintain the underlying designated use and criterion where a variance is approved, the proposed regulation will ensure it is clear that the interim requirements associated with a variance do not replace the designated use and criterion. This will, in turn, facilitate a consistent interpretation regarding how variances affect the implementation of WQS through the various CWA programs and how variances are to be used to support feasible progress toward attaining the underlying designated use and criteria.

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section.

iii. Relationship to Technology-Based Requirements in CWA Sections 301(b) and 306

The EPA is proposing to add paragraph (a)(3) to 40 CFR 131.14 to specify that a variance shall not be granted if the designated use and criterion can be achieved by implementing technology-based effluent limits required under sections 301(b) and 306 of the Act.

As with designated use changes, variances are not permissible if the WQS can be attained by implementing technology-based effluent limits required under section 301(b) and 306 of the Act. Section 301(b)(1)(A), (B), and section 306 of the Act provide for technology-based requirements through effluent limitations guidelines and new source performance standards. These technology-based requirements represent the minimum level of control that must be imposed in a permit (40 CFR 125.3). Because variances are allowed only where the designated use and criterion are demonstrated to be unattainable during the term of the variance, it would not be appropriate to use a variance if the designated use and criterion can be attained by implementing the technology-based requirements of the Act.

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section.

b. Part 2—Submission Requirements

This section describes the relevant information that a state or authorized tribe must submit to the EPA when requesting the EPA's review and approval of a variance.

i. Components of a Variance

1. Identifying Information—Pollutant(s), Permittee(s), Location

The EPA is proposing to add paragraph (b)(1)(i) at 40 CFR 131.14 requiring states and authorized tribes to identify, in the variance, the pollutant(s), the permittee(s), and/or the water body or waterbody segment(s) to which the variance applies.

This proposed regulatory revision will require all variances to specify for what, to whom, and/or where the variance applies, which will help ensure full transparency and public participation on the applicability and scope of the variance. This will alleviate any inconsistencies in the way states and tribes have articulated where, when and how the variance applies.

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section.

2. Numeric Interim Requirements That Apply During a Variance

The EPA is proposing to add paragraph (b)(1)(ii) at 40 CFR 131.14 to require that a variance must specify (1) the highest attainable interim use and numeric criterion that will apply during the term of the variance or (2) an interim numeric effluent condition that reflects the highest attainable condition for a specific permittee(s) during the term of the variance. Neither (1) nor (2) shall result in any lowering of the currently attained water quality, unless a time-limited lowering of water quality is necessary during the term of a variance for restoration activities, consistent with § 131.14(b)(2)(ii).

As variances have been implemented to date, some states and tribes have not identified in the variance the interim requirements that shall apply for permitting purposes during the term of the variance. Specifying the interim requirements to be met during the variance will provide the legal basis for permit writers to develop permit limits that derive from and comply with a WQS, as required by the permitting regulations at 40 CFR 122.44(d)(vii)(A).

As discussed in Section III.C, the EPA is proposing a requirement that a state or tribe adopts the highest attainable use closest to the 101(a)(2) goals when it has demonstrated that the use specified in CWA section 101(a)(2) or a subcategory of such a use is not attainable based on a UAA. The EPA is proposing that a similar requirement apply to variances such that if states or tribes can demonstrate that a use specified in section 101(a)(2) or subcategory of such a use is not attainable for the variance period, then the state or tribe must adopt a variance reflecting the highest attainable condition during the term of the variance. Such a requirement ensures that feasible progress will be made towards the designated use and the criterion to protect that use during the period of the variance.

Requiring that states and tribes establish interim requirements that apply for purposes of CWA section 402 permitting and in issuing certifications under section 401 of the Act, and that such requirements reflect the highest attainable condition during the variance, creates a framework for variances to provide states and tribes with time to implement adaptive management approaches that drive progress towards meeting the designated use and criterion in a transparent and accountable manner—a key environmental benefit of a variance. This is consistent with previous EPA statements in the EPA's WQS Handbook and 1998 ANPRM that discuss the EPA's position regarding the progress to be made during the term of the variance towards attaining the designated use and criterion. [25]

A state's or tribe's determination or identification of the highest attainable interim use need not be complex. A state or tribe could simply include the phrase “variance affected” or “variance modified” to the current use description or the state or tribe could describe the interim use by identifying the parameter included in the variance, such as “pH-limited” use as a way to provide transparency. States and tribes may find it appropriate to adopt such “variance modified” uses as the highest attainable interim use, rather than adopting an alternate use from the state or tribe's current use classification system, as they might be more likely to do if they were making a permanent change to a designated use. To determine the numeric criterion that protects the highest attainable interim use, a state or tribe shall determine the condition that is both feasible to attain and closest to the protection afforded by the designated use and criteria. A state's or tribe's determination of the highest attainable condition and numeric interim requirements to apply during a waterbody variance should include consideration and evaluation of pollutant reductions from all contributing sources. This could include an evaluation of the point source controls, pollutant minimization plans and NPS pollutant reductions that could be achieved in the water body.

Rather than identifying the highest attainable interim use and interim numeric criterion, a state or tribe may choose to specify in its variance that the applicable interim water quality standard shall be defined by a numeric effluent condition that reflects the highest attainable condition for a specific permittee(s) during the term of the variance. Adopting a numeric effluent condition that reflects the highest attainable condition is reasonable because the resulting instream concentration reflects the highest attainable interim use and interim criterion and, therefore, the interim numeric effluent condition is acting as a surrogate for the interim use and interim criterion. If current effluent quality represents the highest attainable condition for a specific permittee(s), then this would become the interim requirement during the term of the variance. In situations where a variance addresses a pollutant(s) for which no feasible wastewater treatment option can be identified, an interim numeric water quality-based effluent condition reflecting the levels currently achievable and a requirement to develop and implement a Pollutant Minimization Program (PMP) [26] together would constitute the highest attainable effluent condition.

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section.

3. Expiration Date

The EPA is proposing to add paragraph (b)(1)(iii) at 40 CFR 131.14 to require that all variances must include an expiration date and that variances must be as short as possible but expire no later than 10 years after the date the state or tribe adopts the variance, consistent with § 131.14(b)(2).

Variances are time-limited; therefore, in order to promote consistency and clarity and to ensure that variances are truly time-limited, the EPA is proposing that all variances include an explicit expiration date. Such expiration date must be consistent with the demonstration that a variance is needed for a specified period of time based on one of the factors identified in proposed § 131.14(b)(2), must be as short as possible, and cannot exceed 10 years. Establishing an expiration date will ensure that the conditions of a variance will be thoroughly re-evaluated and subject to a public review on a regular and predictable basis to determine (1) whether conditions have changed such that the designated use and criterion are now attainable; (2) whether new or additional information has become available to indicate that the designated use and criterion are not attainable in the future (i.e., data or information supports a use change/refinement); or (3) whether feasible progress is being made toward the designated use and criterion and that additional time is needed to make further progress (i.e., whether a variance may be renewed).

The EPA believes that up to 10 years is a reasonable duration for a variance, as it represents two 5-year NPDES permit terms and provides adequate opportunity to implement measures to make feasible progress. A maximum of 10 years is also sufficient to reflect changing circumstances, such as the availability of new economic information or affordable treatment technology that may impact whether or not a variance is still warranted.

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section.

ii. Demonstrating the Need for a Variance—Supporting Documentation

The EPA is proposing to add paragraph (b)(2) at 40 CFR 131.14 to specify that in order to document that a variance is needed for uses specified in section 101(a)(2) or sub-categories of such uses, the state or tribe must demonstrate that attaining the designated use and criterion is not feasible during the term of the variance because of one of the factors listed in § 131.10(g) or because actions necessary to facilitate restoration through dam removal or other significant wetland or stream reconfiguration activities preclude attainment of the designated use and criterion while the actions are being implemented.

The regulation at 40 CFR 131.10(g) identifies six factors that may be used to demonstrate, through a UAA, when a use specified in section 101(a)(2) of the Act, or a subcategory of such a use, is unattainable. The EPA's current position (and its longstanding practice) is that one of these same § 131.10(g) “attainability” factors must be used by states and tribes to justify why and for how long a variance is necessary for uses specified in section 101(a)(2) or sub-categories of such uses. In developing this proposed regulation, the EPA considered other situations where a variance may be appropriate and the EPA concluded that the current § 131.10(g) factors do not accommodate situations where a variance may be necessary to facilitate short-term efforts to restore the natural physical features (i.e., natural geomorphology) of a system. Specifically, this is meant to address the situation when a time-limited exceedance of a criterion might be expected while efforts for dam removal or significant wetlands or stream reconfiguration/restoration efforts are underway to facilitate restoration of the natural physical features of a water body. The proposed new factor is intended only to cover the length of time necessary to remove the dam or the length of time in which stream restoration activities are actively on-going. Although such a variance might not directly impact a NPDES permittee, it may be necessary to allow states and tribes to certify that any federal license or permit that may result in the discharge of pollutants in state/tribal jurisdiction will still meet their state/tribal WQS, under CWA section 401.

In determining whether or not to grant a variance for uses specified in section 101(a)(2) and sub-categories of such uses (and subsequently submit such a variance to the EPA for review and approval), the state or tribe must consider and evaluate whether the available information supports a conclusion that the designated use and criteria are not feasible to attain during the variance period based on one of the factors listed in § 131.14(b)(2).

A factor that has been commonly used to demonstrate the need for a discharger specific variance is § 131.10(g)(6), which provides that a state or tribe may remove a designated use if “[c]ontrols more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact.” The Interim Economic Guidance for Water Quality Standards, published March 1995 (see http://water.epa.gov/scitech/swguidance/standards/economics/) provides guidance on the types of information that a state or tribe should consider evaluating and include in its record to support a variance based on § 131.10(g)(6). [27]

The state's or tribe's record for granting a variance based on “Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place” [28] may include, but not be limited to, consideration and evaluation of the following types of available information:

  • Monitoring data to determine the current ambient conditions.
  • Data/maps showing the geographical extent of the problem.
  • Engineering studies and literature of the relevant remediation alternatives and best management practices that could be implemented and documentation that none of the alternatives or practices, if implemented, would result in attaining the designated use and criteria within the variance timeframe.
  • Description, with supporting information from the scientific literature, of the environmental impacts associated with the remedial alternatives and an analysis of what could be done in an environmentally safe manner. Such an analysis would facilitate a determination of whether the human caused condition or source of pollution would cause more environmental harm to remedy than to leave in place.
  • Modeling data showing the associated pollutant reductions achievable within the timeframe of the variance compared to reductions needed to achieve the designated use and criteria.

A variance should be a transparent mechanism that allows a state, tribe or discharger a defined period of time to conduct any necessary studies so long as the state or tribe demonstrates the need for the variance in accordance with the regulations and the state or tribe retains the applicable criteria for all other pollutants. The EPA commonly receives questions about whether permit compliance schedules can be used for this purpose. Permit compliance schedules may only be used in situations where time is needed for a permittee to come into compliance with the WQBEL in the permit, not to provide time to address uncertainty regarding the appropriateness or attainability of the WQS.

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section.

iii. Identifying and Documenting the Controls for Other Sources Related to the Pollutant(s) and Location(s) Specified in a Waterbody Variance That Could Be Implemented

The EPA is proposing to add paragraph (b)(3) at § 131.14 to specify that, in addition to the other requirements under 131.14(b), for a waterbody variance (one not limited to a specific discharger or dischargers), a state or tribe must include an identification and documentation of any cost-effective and reasonable BMPs for nonpoint sources related to the pollutant(s) and location(s) specified in the variance that could be implemented water body wide to make progress towards attaining the designated use and criterion. A state or tribe must provide public notice and comment for any such documentation.

Because other sources of pollution (e.g., nonpoint sources) can have a significant bearing on whether the designated use and associated criterion for the entire water body are attainable, it is essential for states and tribes to consider and provide information to the public regarding the impact that controlling other sources through application of cost-effective and reasonable BMPs could have on water quality before granting a waterbody variance. Doing so could inform the state's or tribe's assessment of what interim actions may be needed to make feasible progress towards attaining the designated use and criterion related to the pollutant(s) and location(s) specified in the variance, as well as what the highest attainable interim designated use and criterion may be and for how long they may be needed.

A similar requirement is set out in the WQS regulation at § 131.10(d) and (h)(2) which specifies that a use is deemed attainable and cannot be removed if it can be achieved by the imposition of/implementing effluent limits required under sections 301(b) and 306 of the Act as well as cost-effective and reasonable best management practices for nonpoint source control. The EPA's current position is that before removing a designated use states and tribes must first evaluate the impact that point and nonpoint source controls might have on water quality. When conducting such an evaluation, states and tribes should consider the impacts from implementing any [29] cost-effective and reasonable BMPs for nonpoint source controls water body wide. In situations where it can be demonstrated that a use is precluded by non-anthropogenic stressors (e.g., high levels of a naturally occurring metal in a surface water body), the EPA does not expect states and tribes to evaluate nonpoint source controls, as controlling nonpoint sources would not lead to attainment.

The EPA's proposed requirement for waterbody variances differs from those applicable to designated uses because variances are time-limited and targeted serving as a tool to facilitate progress toward the designated use and criterion. It is unnecessary to require states and tribes to demonstrate that the designated use and criteria are unattainable even if cost effective and reasonable BMPs were implemented, as is required when revising a designated use, because variances do not “permanently” downgrade the designated use but establish a regulatory mechanism by which feasible progress will be made during the term of the variance. Instead, a requirement to identify and document cost-effective and reasonable BMPs for other sources will assist states and tribes in identifying the actions they may need to implement to meet their interim requirements as well as to make feasible progress towards attaining the designated use and criterion.

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section.

c. Part 3—Implementing Variances

The EPA is proposing to add paragraph (c) at 40 CFR 131.14 specifying that variances serve as the basis of a WQBEL included in a NPDES permit for the period the variance is in effect. Any activities required to implement the variance shall be included as conditions of the NPDES permit for the permittee(s) subject to the variance.

When variances are adopted and approved, they serve as the basis of a WQBEL included in a NPDES permit during the variance period. However, any specific actions that will be necessary for the discharger to implement the variance and make such feasible progress are typically at the discretion of the permitting authority. Therefore, in § 131.14(c), the EPA is proposing regulatory language similar to § 131.34(c) and § 131.40(c) linking the requirements of variances to the NPDES permitting process, specifically 40 CFR 122.44(d)(1)(viii)(A) that requires the permitting authority to establish limitations that derive from and comply with the applicable WQS. The EPA believes the proposed regulatory requirement will ensure proper accountability when implementing variances. The proposed provision reflects the provisions in the “Water Quality Guidance for the Great Lakes System” (40 CFR part 132, Appendix F, Procedure 2).

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section.

d. Part 4—How To Renew a Variance

The EPA is proposing to add paragraph (d) at 40 CFR 131.14 to specify that to obtain the EPA's approval of a variance renewal, the state or tribe must meet the requirements of § 131.14 and provide appropriate documentation of the steps taken to meet the requirements of the previous variance. Renewal of the variance may be disapproved if the applicant did not comply with the conditions of the original variance, or otherwise does not meet the requirements of this section. For renewal of a waterbody variance, the state or tribe must also include documentation of whether and to what extent cost-effective and reasonable BMPs have been implemented to address the pollutant(s) subject to the variance and the water quality progress achieved during the variance period.

Although the EPA is proposing to establish a maximum single variance term of no more than 10 years, it recognizes that there may be circumstances in which a renewal of a variance is both necessary and appropriate. As the EPA's 1998 ANPRM articulates, variances are WQS and should be continued or extended only where the initial conditions for granting the variance still apply. [30] If a variance term will expire and the applicant complied with the conditions of the original variance (e.g., feasible progress has been made), but the designated use and criterion remain unattainable, then renewal of a variance may be an appropriate option for the state or tribe to consider.

The EPA is providing an additional requirement for waterbody variances because both point and nonpoint sources are contributing to the water quality challenges. The state or tribe must document whether and to what extent BMPs have been implemented and the water quality progress achieved during the variance period.

This proposed regulation explicitly provides that the EPA may disapprove a renewal of the variance if the applicant did not comply with the conditions of the original variance, or otherwise does not meet the requirements of § 131.14. The EPA recognizes that circumstances out of the permittee, state's or tribe's control may impact the ability to meet the specific conditions and requirements of the variance, even if all required actions to implement the variance were completed. The proposed regulatory language allows the EPA to consider these factors when determining whether to grant a WQS variance renewal. If the EPA disapproves the variance renewal, then the state or tribe must implement its water quality program to meet the applicable designated use and associated criteria or conduct a UAA to justify a revision to the designated use and associated criteria.

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section.

e. Part 5—Variances for the EPA-Promulgated Designated Uses

The EPA is proposing to delete detailed variance procedures promulgated by the EPA in 40 CFR 131.34(c) and 131.40(c) and replace them with language specifying that the appropriate Regional Administrators may grant variances from the EPA-promulgated regulations for Kansas and Puerto Rico consistent with this proposed requirements at § 131.14.

The EPA promulgated variance procedures that the Regional Administrator could use to grant variances from the specific WQS the EPA promulgated for Kansas and Puerto Rico in § 131.34 and 131.40. This proposal reflects the most efficient and transparent approach to ensure that variances granted by the Regional Administrator for the federally promulgated standards in Kansas and Puerto Rico meet the same requirements as the rest of the United States once the EPA finalizes the nationally applicable revisions to 40 CFR part 131.

The EPA invites comment on its proposal and on any other options it should consider or on the interpretations expressed in this section.

G. Provisions Authorizing the Use of Permit-Based Compliance Schedule

1. The EPA Proposal

The EPA is proposing to add a new regulatory provision at § 131.15 to be consistent with the decision of the EPA Administrator in In the Matter of Star- Kist Caribe, Inc. (1990 WL 324290 (EPA), 1990 EPA App. LEXIS 45, 3 EAD 172 (April 16, 1990)). This provision would clarify that a permitting authority may only issue compliance schedules for WQBELs in NPDES permits if the state or tribe has authorized issuance of such compliance schedules pursuant to state or tribal law in its water quality standards or implementing regulations. Any such compliance schedule authorizing provision is a WQS subject to the EPA's review and approval. The proposed provision would also clarify that individual compliance schedules issued pursuant to such authorizing provisions are not themselves WQS but must be consistent with CWA section 502(17), the state's or tribe's EPA-approved compliance schedule authorizing provision, and the requirements of 40 CFR 122.2 and 122.47.

2. Rationale for Revision

CWA section 502(17) defines “schedule of compliance” to mean “a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or standard.” The EPA's NPDES regulation at 40 CFR 122.2 defines a schedule of compliance as “a schedule of remedial measures included in a `permit,' including an enforceable sequence of interimrequirements . . . leading to compliance with the CWA and regulations.” Section 301(b)(1)(C) of the Act specifies that there shall be achieved “. . . not later than July 1, 1977, any more stringent limitation, including those necessary to meet WQS, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter.”

In, In the Matter of Star-Kist Caribe, Inc., the EPA Administrator (in an appeal of an EPA-issued NPDES permit) interpreted CWA 301(b)(1)(C) to mean that (1) after July 1, 1977, permits must require immediate compliance with (i.e., may not contain compliance schedules for) effluent limitations based on WQS adopted before July 1, 1977, and (2) permit compliance schedules are allowed for effluent limitations based on WQS adopted after that date only if the state or tribe has clearly indicated in its WQS or implementing regulations that it intends to allow them (i.e., the state's or tribe's WQS or implementing regulations must contain a provision authorizing the use of permit-based compliance schedules). The latter requirement ensures that a permit including such a compliance schedule still meets WQS pursuant to CWA section 301(b)(1)(C).

The EPA's current WQS regulation is silent regarding compliance schedules and compliance schedule authorizing provisions. As a result, despite Star-Kist, the EPA is concerned that state/tribal permitting authorities may be including compliance schedules in permits, thus delaying compliance with a WQS-based WQBEL, even though the state/tribe may not have authorized the use of such compliance schedules in its WQS or implementing regulations.

Consistent with the Star-Kist decision, a state or tribe has the discretion to include a compliance schedule authorizing provision in its WQS or implementing regulations. Such a provision may also be codified in a state or tribe's NPDES regulations. However, regardless of where it appears, a compliance schedule authorizing provision adopted pursuant to state or tribal law is considered a WQS subject to the EPA's approval under CWA section 303(c)(3). Although a compliance schedule authorizing provision does not describe the desired condition or level of protection of a water body in exactly the same way as a designated use or water quality criteria, it expresses the state's or tribe's intent to allow a delay in meeting the desired condition. Compliance schedule authorizing provisions allow the permitting authority to provide a permittee additional time to comply with a WQBEL that derives from and complies with the applicable WQS beyond the date of permit issuance, which is the date upon which a permittee is otherwise required to comply with its WQBEL. In addition, as articulated in the Star-Kist decision, states and tribes may only allow this delay if the applicable WQS is new or revised, after July 1, 1977.

When states and tribes authorize the use of compliance schedules in their WQS or implementing regulations, they ensure that WQBELs subject to appropriately issued compliance schedules are “fully consistent with, and therefore `meet,' the requirements of the State or tribal water quality standard, as contemplated by [CWA] 301(b)(1)(C).”Star-Kist at 175. Once approved pursuant to CWA 303(c)(3), the compliance schedule authorizing provision itself becomes part of the applicable WQS; therefore, any delay in compliance with a WQBEL pursuant to that permit compliance schedule would be consistent with state/tribal WQS. A compliance schedule, as defined by section 502(17) of the Act, that is granted pursuant to a state's or tribe's approved compliance schedule authorizing provision is, on the other hand, a permitting tool and is not itself considered a WQS. The EPA has implemented section 502(17) of the Act in the context of the NPDES permitting program at 40 CFR 122.2 and 122.47. Any compliance schedule, itself, must be consistent with these provisions.

The EPA invites comments on the proposed addition of § 131.15. The EPA also invites comment on any other options it should consider or on the interpretations expressed in this section.

H. Other Changes

1. The EPA Proposal

In the course of developing this proposal, the EPA identified several spelling mistakes, grammatical errors and/or inconsistencies, and incorrect citations in 40 CFR part 131, as well as the need for various conforming edits (e.g., provisions that need to be re-numbered or re-lettered based on a regulatory addition or deletion outlined in this proposal). The EPA is proposing the following changes:

  • § 131.2: Change “. . . necessary to protect the uses” to “. . . that protect the designated uses” (consistency with terminology in § 131.11).
  • § 131.3(h): Change “technology-bases” to “technology-based” (spelling mistake).
  • § 131.3(j): Delete “the Trust Territory of the Pacific Islands.” [31] Insert the word “the” in front of “water quality standards program” (grammatical clarification).
  • § 131.5(a)(1): Change “. . . has adopted water uses” to “. . . has adopted designated water uses” (grammatical clarification).
  • § 131.5(a)(2): Insert “. . . based on sound scientific rationale” (consistency with language in § 131.11).
  • § 131.10(j): Insert “and § 131.10(g)” before the word “whenever” (consistency with proposed revisions to § 131.10(g)).
  • § 131.10(j)(2): Insert “, to remove a subcategory of such a use,” after the first instance of “. . . specified in section 101(a)(2) of the Act” (legal clarification that a UAA is also required when removing a subcategory of a use specified in section 101(a)(2) of the Act without adopting another use in its place).
  • § 131.11(a)(2): Change reference from “40 CFR part 35” to “40 CFR part 130” to reflect the correct citation.
  • § 131.11(b): Italicize “Form of criteria” (consistency with formatting in § 131.11(a)).
  • § 131.12(a)(2): Insert “the protection and” into the phrase “propagation of fish, shellfish and wildlife” to be consistent with CWA 101(a)(2) and the rest of the WQS regulation at part 131. Change “assure” to “ensure” (grammatical clarification).
  • § 131.20(b): Change “hold a public hearing” to “hold public hearings” and add “or revising” after “reviewing” (consistency with CWA 303(c) and § 131.20(a)). Insert “EPA's” in front of “public participation regulation” (clarification that 40 CFR part 25 is the EPA's regulation). Delete the phrase “EPA's water quality management regulation (40 CFR 130.3(b)(6))” (nonexistent citation).

The EPA invites comments on the proposed amendments described above. The EPA also invites comment on any other options it should consider or on the interpretations expressed in this section.

IV. When does this action take effect? Back to Top

Comments on this proposed rulemaking must be received on or before December 3, 2013. Should this proposed rulemaking be finalized, the effective date will likely be 60 days after date of publication of the final rule in the Federal Register. For judicial review purposes, the effective date will likely be 60 days after date of publication of the final rule in the Federal Register.

The EPA is proposing to require states and tribes to meet the requirements of the final rule on the effective date of the final rule. The EPA's expectation is that, where a new or revised requirement necessitates a change to state or tribal WQS, such changes will occur within the next triennial review that the state or tribe initiates after the EPA's publication of the final rule.

The EPA invites comments on the proposed effective dates. The EPA also invites comment on any other options it should consider or on the interpretations expressed in this section.

V. Economic Impacts on State and Tribal WQS Programs Back to Top

The EPA evaluated the potential incremental administrative burdens and costs that may be associated with this proposal. Incremental burden and costs are those above and beyond the burden and costs associated with implementation of current WQS regulations. Because this proposal will not establish any requirements directly applicable to regulated entities, the focus of the EPA's economic analysis is to estimate the potential administrative burden and costs to state, tribal, and territorial governments, and the EPA. The EPA's economic analysis is documented in Economic Analysis for the Water Quality Standards Regulatory Clarifications (Proposed Rule) and can be found in the docket for this proposal.

The EPA assessed the potential incremental burden and costs associated with this proposed regulation revisions by first identifying those elements of the proposed revisions that may impose incremental burdens and costs. The EPA estimated the incremental number of labor hours potentially required by states and tribes to comply with those elements of the proposed regulations, and then estimated the costs associated with those additional labor hours. The EPA identified four areas where incremental burdens and costs may be anticipated: (1) One-time burden and costs associated with state and tribal rulemaking activities because states and tribes may need to adopt new or revised provisions into their WQS, (2) annual costs associated with designating uses because identifying the highest attainable use when performing a UAA may require additional labor hours, (3) annual costs associated with antidegradation implementation including reviewing a greater number and more complex antidegradation requests, and (4) annual costs associated with additional development and documentation of variance requests. In addition to the proposed requirements included in this proposal, the EPA is considering and requesting comment on whether the EPA should include a requirement that antidegradation implementation methods be formally adopted as WQS and thus subject to the EPA's review and approval or disapproval. Incremental burden and costs were estimated for all 50 states, the District of Columbia, 5 territories, and the 39 Indian tribes authorized to administer a WQS program with WQS approved by the EPA.

Estimates of the incremental administrative burden and costs to state and tribal governments associated with this proposal without the requirement to adopt antidegradation implementation methods as WQS are summarized in the following table:

Summary of Incremental Administrative Burden and Costs to State and Tribal Governments Associated With This Proposal Without the Requirement To Adopt Antidegradation Implementation Methods as WQS Back to Top
Provision One-time Recurring
Burden (hours) Cost (2013$millions) Annualized cost (2013$ millions/year)1 Burden (hours/year) Cost (2013$millions/year)
‘—’ = not applicable.
1Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for comparative purposes.
2Includes annual costs associated with reviewing a greater number and more complex antidegradation requests.
Rulemaking Activities 9,500-47,500 $0.46-$2.28 $0.03-$0.15
Designated Uses 240-1,200 $0.01-$0.06
Antidegradation2 97,070-145,605 $4.61-$7.04
Variances 4,620-5,310 $0.22-$0.26
National Total 9,500-47,500 $0.46-$2.28 $0.03-$0.15 101,930-152,115 $4.84-$7.36

Estimates of the incremental administrative burden and costs to the EPA associated with this proposal without the requirement to adopt antidegradation implementation methods as WQS are summarized in the following table:

Summary of Potential Incremental Administrative Burden and Costs to the EPA Associated With This Proposal Without the Requirement To Adopt Antidegradation Implementation Methods as WQS Back to Top
One-time Recurring
Costs to states and tribes (2013$ million) Costs to the agency1(2013$ million) Annualized cost to the agency2(2013$ million per year) Burden Costs to states and tribes (2013$ million per year) Costs to the agency1(2013$ million per year) Burden
Hours3 FTEs4 Hours per year3 FTEs per year4
1Assuming that the incremental costs to the EPA are equal to 20% of the costs to states and tribes.
2Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for comparative purposes.
3Total costs to the Agency divided by hourly wage rate (including overhead and benefits) of $75.55 per hour.
4Burden hours to the Agency divided by hours worked by full-time equivalent (FTE) employees per year (2,080 hours per year).
$0.46-$2.28 $0.09-$0.46 $0.01-$0.03 1,200-6,040 0.58-2.9 $4.84-$7.36 $0.97-$1.47 12,810-19,470 6.16-9.36

A summary of the combined estimated costs to all potentially affect states, tribes, and the EPA without the requirement to adopt antidegradation implementation methods as WQS are summarized in the following table:

Summary of Potential Incremental Administrative Burdens and Costs Associated With the Proposed Rule to States, Tribes, and the EPA Without the Requirement To Adopt Antidegradation Implementation Methods as WQS Back to Top
Entities One-time Recurring
Burden (hours) Cost (2013$millions) Annualized cost1(2013$ million/year) Burden (hours/year) Cost (2013 $millions/year)
1Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for comparative purposes.
States and tribes 9,500-47,500 $0.46-$2.28 $0.03-$0.15 101,930-152,115 $4.84-$7.36
Agency 1,200-6,040 $0.09-$0.46 $0.01-$0.03 12,810-19,470 $0.97-$1.47
Total 10,700-53,540 $0.55-$2.74 $0.04-$0.18 114,740-171,585 $5.81-$8.83

To estimate the total annual cost of this proposal without the requirement to adopt antidegradation implementation methods as WQS which include both one-time costs and recurring costs, the EPA annualized the one-time costs over a period of 20 years. Using a 20-year annualization period and a discount rate of three percent, total annual costs for this proposal without the requirement to adopt antidegradation implementation methods as WQS are estimated to range from $5.84 million ($0.04 million + $5.81 million) to $9.01 million ($0.18 million + $8.83 million) per year.

In addition to the proposed requirements included in this proposal, the EPA is considering and requesting comment on whether the EPA should include a requirement that antidegradation implementation methods be formally adopted as WQS and thus subject to the EPA's review and approval or disapproval. This additional requirement would require affected entities to develop or revise antidegradation implementation methods, and adopt the implementation methods in WQS, resulting in one-time (nonrecurring) burden and costs. Estimates of the incremental administrative burden and costs to state and tribal governments associated with this proposal including the requirement to adopt antidegradation implementation methods into WQS are summarized in the following table:

Summary of Incremental Administrative Burden and Costs to State and Tribal Governments Associated With This Proposal With the Requirement To Adopt Antidegradation Implementation Methods as WQS Back to Top
Provision One-time Recurring
Burden (hours) Cost (2013$millions) Annualized cost1(2013$ millions/year) Burden (hours/year) Cost (2013$millions/year)
`—' = not applicable.
1Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for comparative purposes.
Rulemaking Activities 9,500-47,500 $0.46-$2.28 $0.03-$0.15
Designated Uses 240-1,200 $0.01-$0.06
Antidegradation 33,600-67,200 1.61-3.23 0.11-0.22 97,070-145,605 4.61-7.04
Variances 4,620-5,310 0.22-0.26
National Total 43,100-114,700 2.07-5.51 0.14-0.37 101,930-152,115 4.84-7.36

Estimates of the incremental administrative burden and costs to the EPA associated with this proposal including the requirement to adopt antidegradation implementation methods into WQS are summarized in the following table:

Summary of Potential Incremental Administrative Burden and Costs to the EPA Associated With This Proposal With the Requirement To Adopt Antidegradation Implementation Methods as WQS Back to Top
One-time Recurring
Costs to states and tribes (2013$ million) Costs to the agency1(2013$ million) Annualized cost to the agency2(2013$ million per year) Burden Costs to states and tribes (2013$ million per year) Costs to the agency1(2013$ million per year) Burden
Hours3 FTEs4 Hours per year3 FTEs per year4
1Assuming that the incremental costs to the EPA are equal to 20% of the costs to states and tribes.
2Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for comparative purposes.
3Total costs to the Agency divided by hourly wage rate (including overhead and benefits) of $75.55 per hour.
4Burden hours to the Agency divided by hours worked by full-time equivalent (FTE) employees per year (2,080 hours per year).
$2.07-$5.51 $0.41-$1.10 $0.03-$0.07 5,480-14,570 2.63-7.01 $4.84-$7.36 $0.97-$1.47 12,810-19,470 6.16-9.36

A summary of the combined estimated costs of this proposal to all potentially affect states, tribes, and the EPA including the requirement to adopt antidegradation implementation methods into WQS are summarized in the following table.

Summary of Potential Incremental Administrative Burdens and Costs Associated With the Proposed Rule to States, Tribes, and the EPA With the Requirement To Adopt Antidegradation Implementation Methods as WQS Back to Top
Entities One-time Recurring
Burden (hours) Cost (2013$ millions) Annualized cost1 (2013$ millions/year) Burden (hours/year) Cost (2013 $millions/year)
1Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for comparative purposes.
States and tribes 43,100-114,700 $2.07-$5.51 $0.14-$0.37 101,930-152,115 $4.84-$7.36
Agency 5,480-14,570 $0.41-$1.10 $0.03-$0.07 12,810-19,470 $0.97-$1.47
Total 48,580-129,270 $2.48-$6.61 $0.17-$0.44 114,740-171,585 $5.81-$8.83

To estimate the total annual cost of this proposal including the requirement to adopt antidegradation implementation methods as WQS which include both one-time costs and recurring costs, the EPA annualized the one-time costs over a period of 20 years. Using a 20-year annualization period and a discount rate of three percent, total annual costs for this proposal with the requirement to adopt antidegradation implementation methods as WQS are estimated to range from $5.98 million ($0.17 million + $5.81 million) to $9.27 million ($0.44 million + $8.83 million) per year.

In addition to estimating potential burden and costs, the EPA also evaluated the potential benefits associated with this proposal. States, tribes, stakeholders, and the public will benefit from the proposed clarifications of the WQS regulations by ensuring better utilization of available WQS tools that allow states and tribes the flexibility to implement their WQS in an efficient manner while providing transparency and open public participation. Although associated with potential administrative burden and costs in some areas, this proposal has the potential to partially offset these costs by reducing regulatory uncertainty and consequently increasing overall program efficiency. Furthermore, more efficient and effective implementation of state and tribal WQS has the potential to provide a variety of economic benefits associated with cleaner water including the availability of clean, safe, and affordable drinking water, water of adequate quality for agricultural and industrial use, and water quality that supports the commercial fishing industry and higher property values. Nonmarket benefits of this proposal include the protection and improvement of public health and greater recreational opportunities. The EPA acknowledges that achievement of any benefits associated with cleaner water would involve additional control measures, and thus costs to regulated entities and non-point sources, that have not been included in the economic analyses for this proposed rule. The EPA has not attempted to quantify either the costs of such control measures that might ultimately be required as a result of this rule, or the benefits they would provide. Complete details on how the EPA evaluated burden, costs, and benefits are documented in Economic Analysis for the Water Quality Standards Regulatory Clarifications (Proposed Rule) included in the docket for this proposal.

The EPA invites comments on its economic analysis. Specifically, the EPA invites comments on the accuracy of the burden and costs estimates presented in this proposal, and any actual state or tribal data that may help to refine these estimates. This proposal does not establish any requirements directly applicable to regulated point sources or nonpoint sources of pollution, although the EPA recognizes that these sources could potentially incur costs as a result of changes to WQS adopted by states and tribes as a result of this rule (states and tribes could also adopt new or revised WQS independent of this proposed rule). However, unlike some other EPA WQS rules for which an economic analysis was prepared, this proposal does not lend itself to identification of readily predictable outcomes regarding changes to state water quality standards that might result. Likewise, the EPA could not predict requirements that could ultimately be imposed on NPDES permittees and nonpoint sources. Thus, the EPA has not analyzed potential costs or cost savings associated with any consequences of revised state or tribal WQS. Nonetheless, the EPA is interested in the potential implications of this proposal for regulated entities and non-point sources and on whether and how it should incorporate such costs in its economic analysis of the rule.

VI. Statutory and Executive Order Reviews Back to Top

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993), this action is a “significant regulatory action.” Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under E.O.s 12866 and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB recommendations have been documented in the docket for this action.

In addition, the EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis is contained in “Economic Analysis for the Proposed Revisions to Water Quality Standards Regulatory Revisions.” A copy of the analysis is available in the docket for this action and the analysis is briefly summarized in Section V of the preamble.

B. Paperwork Reduction Act

The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document prepared by the EPA has been assigned EPA ICR number 2449.01.

The EPA is proposing the WQS Regulatory Clarifications Rule to improve the regulation's effectiveness in helping restore and maintain the chemical, physical, and biological integrity of the nation's waters. The core of the current regulation has been in place since 1983; since then, a number of issues have been raised by stakeholders or identified by the EPA in the implementation process that will benefit from clarification and greater specificity. The proposed rule addresses the following key program areas: (1) Administrator's determinations that new or revised WQS are necessary, (2) designated uses, (3) triennial reviews, (4) antidegradation, (5) variances to WQS, and (5) compliance schedule authorizing provisions. In addition to the proposed requirements included in this proposal, the EPA is considering and requesting comment on whether the EPA should require that antidegradation implementation methods be adopted as WQS and thus subject to the EPA's review and approval or disapproval. This mandatory information collection will ensure the EPA has the needed information to review standards and make approvals or disapprovals in accordance with provisions in the proposed Water Quality Standards Regulatory Clarifications Rule. Under the Clean Water Act (CWA), the EPA is responsible for reviewing and approving or disapproving new and revised WQS submitted by states and tribes. The EPA will use the information required by this proposed rule to carry out its responsibility under the CWA. In reviewing state and tribal standards submissions, the EPA considers whether submissions are consistent with the WQS regulation at part 131. The WQS Regulatory Clarifications Rule will add new requirements to part 131. If the information collection activities in the WQS Regulatory Clarifications Rule are not carried out, specific improvements in the implementation of the WQS program will not take place. In some cases, implementation and control steps such as total maximum daily loads and National Pollutant Discharge Elimination System permits may not be as protective as necessary under the CWA.

Burden is defined at 5 CFR 1320.3(b). The EPA expects that the proposed rule will lead to incremental burden hours and labor costs in the following areas: rulemaking activities, designated uses, antidegradation, and variances to WQS. The EPA estimates the cost of labor from data on state government hourly wage rates (data are not available for tribes). The labor categories chosen as applicable to WQS regulatory revision efforts are Environmental Scientist, Department Manager, Environmental Engineer, and Economist. Given the 2012 labor rates for these categories, inflated to March 2013 dollars using the Bureau of Labor Statistics (BLS) Employment Cost Index for professional and related state and local government workers (116.0/115.0 = 1.01), and accounting for benefits using the BLS Employer Cost for Employee Compensation for state and local professional government workers (32.7% of total compensation is attributable to benefits), the EPA calculated an average hourly wage rate of $48.

The EPA estimates the incremental number of labor hours using historical information and data, and the historical knowledge and best professional judgment of EPA personnel with experience administering the WQS program. A total of 95 governmental entities are potentially affected by the proposed rule: 50 states, the District of Columbia, 6 territories, and 39 tribes that have authority to administer WQS programs. Rulemaking activities result in one-time (nonrecurring) burden and costs. Note that these one-time activities will occur over an initial three-year period. The proposed rule will also require affected entities to undertake the following activities each year: conduct use attainability analyses to determine the highest attainable use, review alternative analyses in antidegradation requests, review additional antidegradation requests for high quality waters, comply with new submission requirements for variances, and review additional variance renewal applications. Given the EPA's estimates of the number and frequency of labor hours associated with each of the proposed provisions, the total one-time incremental burden (during each of the first three years) associated with the proposed rule without requiring adoption of antidegradation implementation methods as WQS ranges from 9,500 hours to 47,500 hours, while the annual incremental burden ranges from 101,930 hours to 152,115 hours. Given an hourly wage rate of $48, these labor hours lead to total one-time costs (incurred during each of the first three years) of approximately $0.46 million to $2.28 million and annual costs of $4.84 million to $7.36 million. These incremental burden and costs are associated with a total of 32 one-time responses per year during the initial three-year period for rulemaking activities. In addition, the number of annual responses is 1,405 responses.

In addition to the proposed requirements included in this proposal, the EPA is considering and requesting comment on whether the EPA should include a requirement that antidegradation implementation methods be formally adopted as WQS and thus subject to the EPA's review and approval or disapproval. This additional requirement would require affected entities to develop or revise antidegradation implementation methods, and adopt antidegradation implementation methods as WQS resulting in one-time (nonrecurring) burden and costs. Including this additional requirement, the total one-time incremental burden (during each of the first three years) associated with the proposed rule ranges from 43,100 hours to 114,700 hours, while the annual incremental burden remains the same ranging from 101,930 hours to 152,115 hours. Given an hourly wage rate of $48, these labor hours lead to total one-time costs (incurred during each of the first three years) of approximately $2.07 to $5.51 million and annual costs of $4.84 to $7.36 million. These incremental burden and costs are associated with a total of 32 one-time responses per year during the initial three-year period for rulemaking activities. In addition, the number of annual responses is 1,405 responses.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, the EPA has established a public docket for this rule, which includes this ICR, under Docket ID number EPA-HQ-OW-2010-0606. Submit any comments related to the ICR to the EPA and OMB. See ADDRESSES section at the beginning of this notice for where to submit comments to the EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after September 4, 2013, a comment to OMB is best assured of having its full effect if OMB receives it by October 4, 2013. The final rule will respond to any OMB or public comments on the information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is defined as (1) a small business as defined by the Small Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of this proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities.

State and tribal governments responsible for administering or overseeing water quality programs may be directly affected by this rulemaking, as states and tribes may need to consider and implement new provisions, or revise existing provisions, in their WQS. Small entities, such as small businesses or small governmental jurisdictions, are not directly regulated by this rule. The EPA continues to be interested in the potential impacts of the proposed rule on small entities and welcomes comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for state, local, and tribal governments, in the aggregate, or for the private sector in any one year. The EPA estimates total annual costs to states and tribes to range from $4,840,000 to $7,360,000. Thus, this rule is not subject to the requirements of sections 202 or 205 of the Unfunded Mandates Reform Act of 1995 (UMRA).

This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

E. Executive Order 13132 (Federalism)

Under section 6(b) of E.O. 13132, the EPA may not issue an action that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by state and local governments, or the EPA consults with state and local officials early in the process of developing the proposed action. In addition, under section 6(c) of E.O. 13132, the EPA may not issue an action that has federalism implications and that preempts state law, unless the Agency consults with state and local officials early in the process of developing the proposed action.

The EPA has concluded that the action does not have federalism implications. The EPA is proposing changes to provide clarity and transparency in the WQS regulation that may require state and local officials to reevaluate or revise their standards. However, it will not impose substantial direct compliance costs on state or local governments, nor will it preempt state law. Thus, the requirements of sections 6(b) and 6(c) of the E.O. do not apply to this action.

Consistent with the EPA's policy, the EPA nonetheless consulted with state and local officials early in the process of developing the proposed action to allow them to provide meaningful and timely input into its development. In August and September 2010, the EPA consulted with representatives from states and intergovernmental associations to hear their views on the proposed regulatory changes. Participants expressed concern that the proposed changes may impose a resource burden on state and local governments, as well as infringe on states' flexibility in the areas of antidegradation and designated uses. The EPA's view is that such changes would generally codify the EPA's current practice and provide clear expectations to state and local regulators. Participants urged the EPA to ensure that states with satisfactory regulations in these areas are not unduly burdened by the proposed changes.

Keeping with the spirit of E.O. 13132, and consistent with the EPA's policy to promote communications between the EPA and state and local governments, the EPA specifically solicits comment on this proposed action from state and local officials. In particular, the EPA requests comment on any provision in this proposed rule that state officials believe would impose an undue burden on state water quality standards programs.

F. Executive Order 13175

Subject to the E.O. 13175 (65 FR 67249, November 9, 2000), the EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by tribal governments, or the EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement.

The EPA has concluded that this action may have tribal implications. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. To date, 48 Indian tribes have been approved for treatment in a manner similar to a state (TAS) for CWA sections 303 and 401. Of the 48 tribes, 39 have federally approved WQS in their respective jurisdictions. All of these authorized tribes are subject to this proposed rule. However, this rule might impact other tribes as well because federal, state or authorized tribal standards may apply to waters adjacent to the tribal waters. The EPA consulted with tribal officials early in the process of developing this regulation to allow them to provide meaningful and timely input into its development. In August 2010, the EPA held a tribes-only consultation session to hear their views and answer questions of all interested tribes on the targeted areas the EPA is considering for regulatory revision. Tribes expressed the need for additional guidance and assistance in implementing the proposed rulemaking, specifically for development of antidegradation implementation methods and determination of the highest attainable use. The EPA has considered the burden to states and tribes in developing this proposal and, when possible, has chosen to provide sufficient direction and flexibility to allow tribes to spend resources addressing other aspects of their WQS programs. The EPA also intends to release updated guidance in a new edition of the WQS Handbook. The EPA specifically solicits additional comment on this proposed action from tribal officials.

G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

This action is not subject to E.O. 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as defined in E.O. 12866, and because the Agency does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

This action is not a “significant energy action” as defined in E.O. 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub. L. 104-113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

E.O. 12898 (59 FR 7629, February 16,1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

The EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not adversely affect the level of protection provided to human health or the environment. This proposed rulemaking does not directly establish water quality standards for a state or tribe. In addition, this proposed rulemaking is national in scope, and therefore is not specific to a particular geographic area(s).

List of Subjects in 40 CFR Part 131 Back to Top

Dated: August 20, 2013.

Gina McCarthy,

Administrator.

For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 131 as follows:

begin regulatory text

PART 131—WATER QUALITY STANDARDS Back to Top

1.The authority citation for part 131 continues to read as follows:

Authority:

33 U.S.C. 1251 et seq.

end regulatory text

Subpart A—General Provisions Back to Top

begin regulatory text

2.Amend § 131.2 by revising the first sentence to read as follows:

§ 131.2 Purpose.

A water quality standard 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 setting criteria that protect the designated uses. * * *

3.Amend § 131.3 by revising paragraphs (h) and (j), and adding paragraph (m) to read as follows:

§ 131.3 Definitions.

* * * * *

(h) Water quality limited segment means any segment where it is known that water quality does not meet applicable water quality standards, and/or is not expected to meet applicable water quality standards, even after the application of the technology-based effluent limitations required by sections 301(b) and 306 of the Act.

* * * * *

(j) States include: The 50 States, the District of Columbia, Guam, the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, and Indian Tribes that EPA determines to be eligible for purposes of the water quality standards program.

* * * * *

(m) Highest attainable use is the aquatic life, wildlife, and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through a use attainability analysis defined in § 131.3(g).

4.Amend § 131.5 by:

a. Revising paragraphs (a)(1) and (a)(2);

b. Redesignating paragraphs (a)(3) through (a)(5) as (a)(4) through (a)(6) and adding a new paragraph (a)(3); and

c. Revising paragraph (b).

end regulatory text

The revisions and additions read as follows:

begin regulatory text

§ 131.5 EPA Authority.

(a) * * *

(1) Whether the State has adopted designated water uses which are consistent with the requirements of the Clean Water Act;

(2) Whether the State has adopted criteria that protect the designated water uses based on sound scientific rationale;

(3) Whether the State has adopted an antidegradation policy consistent with § 131.12(a), and if the State has chosen to adopt implementation methods, whether those implementation methods are consistent with § 131.12;

* * * * *

(b) If EPA determines that the State's or Tribe's water quality standards are consistent with the factors listed in paragraphs (a)(1) through (a)(6) of this section, EPA approves the standards. EPA must disapprove the State's or Tribe's water quality standards and promulgate Federal standards under section 303(c)(4), and for Great Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or Tribal adopted standards are not consistent with the factors listed in paragraphs (a)(1) through (a)(6) of this section. EPA may also promulgate a new or revised standard when necessary to meet the requirements of the Act.

* * * * *

end regulatory text

Subpart B—Establishment of Water Quality Standards Back to Top

begin regulatory text

5.Amend § 131.10 by revising paragraph (g) introductory text and paragraphs (j), and (k) to read as follows:

§ 131.10 Designation of uses.

* * * * *

(g) Pursuant to § 131.10(j), States may designate or remove a use or a sub-category of a use as long as the action does not remove protection for an existing use, and the State can demonstrate that attaining the use is not feasible because of one of the six factors in this paragraph. If a State adopts new or revised water quality standards based on a use attainability analysis, the State shall also adopt the highest attainable use and the criteria to protect that use. To meet this requirement, States may, at their discretion, utilize their current use categories or subcategories, develop new use categories or subcategories, or adopt another use which may include a location-specific use.

* * * * *

(j) A State must conduct a use attainability analysis as described in § 131.3(g), and § 131.10(g), whenever:

(1) The State designates or has designated uses for a water body for the first time that do not include the uses specified in section 101(a)(2) of the Act, or

(2) The State wishes to remove a designated use that is specified in section 101(a)(2) of the Act, to remove a sub-category of such a use, or to designate a sub-category of such a use which requires criteria less stringent than previously applicable.

(k) A State is not required to conduct a use attainability analysis whenever:

(1) The State designates or has designated uses for a water body for the first time that include the uses specified in section 101(a)(2) of the Act, or

(2) The State wishes to remove a designated use that is not specified in section 101(a)(2) of the Act, or designate a sub-category of a use specified in section 101(a)(2) of the Act which requires criteria at least as stringent as previously applicable.

6.Amend § 131.11 by revising paragraphs (a)(2) and (b) introductory text to read as follows:

§ 131.11 Criteria.

(a) * * *

(2) Toxic Pollutants. States must review water quality data and information on discharges to identify specific water bodies where toxic pollutants may be adversely affecting water quality or the attainment of the designated water use or where the levels of toxic pollutants are at a level to warrant concern and must adopt criteria for such toxic pollutants applicable to the water body sufficient to protect the designated use. Where a State adopts narrative criteria for toxic pollutants to protect designated uses, the State must provide information identifying the method by which the State intends to regulate point source discharges of toxic pollutants on water quality limited segments based on such narrative criteria. Such information may be included as part of the standards or may be included in documents generated by the State in response to the Water Quality Planning and Management Regulations (40 CFR part 130).

(b) Form of criteria: In establishing criteria, States should:

* * * * *

7.Amend § 131.12 by revising the section heading and paragraphs (a) introductory text and (a)(2), and adding paragraph (b) to read as follows:

§ 131.12 Antidegradation Policy and Implementation Methods.

(a) The State shall develop and adopt a statewide antidegradation policy. The antidegradation policy shall, at a minimum, be consistent with the following:

* * * * *

(2) Where the quality of the waters exceed levels necessary to support the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall ensure water quality adequate to protect existing uses fully. Further, the state shall ensure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost-effective and reasonable best management practices for nonpoint source control.

* * * * *

(b) The State shall develop and make available to the public statewide methods for implementing the antidegradation policy adopted pursuant to paragraph (a) of this section. A State's antidegradation implementation methods shall be designed to achieve antidegradation protection consistent with paragraph (a) of this section. Such methods must ensure that:

(1) High quality waters are identified on a parameter-by-parameter basis or on a water body-by-water body basis at the State's discretion, but must not exclude any water body from high quality water protection solely because not all of the uses specified in CWA section 101(a)(2) are attained; and

(2) The State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this section, after conducting an alternatives analysis that evaluates a range of non-degrading and minimally degrading practicable alternatives that have the potential to prevent or minimize the degradation associated with the proposed activity. If the State can identify any-practicable alternatives, the State must choose one of those alternatives to implement when authorizing a lowering of high water quality.

8.Add § 131.14 to subpart B to read as follows:

§ 131.14 Water quality standards variances.

States may, at their discretion, grant variances subject to the provisions of this section and public participation requirements at § 131.20(b). A water quality standards variance (WQS variance) is a time-limited designated use and criterion for a specified pollutant(s), permittee(s), and/or water body or waterbody segment(s) that reflect the highest attainable condition during the specified time period. WQS variances are water quality standards subject to EPA review and approval or disapproval and must be consistent with this section. Any such WQS variances adopted after [effective date of the final rule] must be consistent with this regulatory section.

(a) Applicability:

(1) All applicable WQS not specifically addressed by the WQS variance remain applicable.

(2)(i) Where a state adopts a WQS variance, the State regulations must continue to reflect the underlying designated use and criterion unless the State adopts and EPA approves a revision to the underlying designated use and criterion consistent with § 131.10 or § 131.11.

(ii) The interim requirements specified in the WQS variance are in effect during the term of the WQS variance and apply for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act for the permittee(s), pollutant(s), and/or water body or waterbody segment(s) covered by the WQS variance. For these limited purposes, the interim requirements will be the standards applicable for purposes of the CWA under 40 CFR 131.21(c)-(e).

(3) A WQS variance shall not be granted if the designated use and criterion addressed by the proposed WQS variance can be achieved by implementing technology-based effluent limits required under sections 301(b) and 306 of the Act.

(b) Submission Requirements:

(1) A WQS variance must specify the following:

(i) Identifying information: A WQS variance must identify the pollutant(s), permittee(s), and/or the water body or waterbody segment(s) to which the WQS variance applies.

(ii) WQS that apply during a variance for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act: A WQS variance must specify:

(A) The highest attainable interim use and interim numeric criterion, or

(B) An interim numeric effluent condition that reflects the highest attainable condition for a specific permittee(s) during the term of the variance. Neither (A) nor (B) of this paragraph shall result in any lowering of the currently attained water quality unless a time-limited lowering of water quality is necessary during the term of a variance for restoration activities, consistent with paragraph (b)(2)(ii) of this section.

(iii) Date the WQS variance will expire: States must include an expiration date for all WQS variances, consistent with paragraph (b)(2) of this section. WQS variances must be as short as possible but expire no later than 10 years after state adoption.

(2) The State must submit a demonstration justifying the need for a WQS variance. For a WQS variance to a use specified in section 101(a)(2) of the Act or a sub-category of such a use, the State must submit a demonstration that attaining the designated use and criterion is not feasible during the term of the WQS variance because:

(i) One of the factors listed in § 131.10(g) applies, or

(ii) Actions necessary to facilitate restoration through dam removal or other significant wetland or stream reconfiguration activities preclude attainment of the designated use and criterion while the actions are being implemented.

(3) For a waterbody variance, the state must identify and document any cost-effective and reasonable best management practices for nonpoint source controls related to the pollutant(s) and location(s) specified in the WQS variance that could be implemented to make progress towards attaining the designated use and criterion. A State must provide public notice and comment for any such documentation.

(c) Implementing variances in NPDES permits: Consistent with paragraph (a)(2)(ii) of this section, a WQS variance serves as the basis of a water quality-based effluent limit included in a NPDES permit for the period the variance is in effect. Any limitations required to implement the WQS variance shall be included as conditions of the NPDES permit for the permittee(s) subject to the WQS variance.

(d) WQS variance renewals: EPA may approve a WQS variance renewal if the State meets the requirements of this section and provides documentation of the actions taken to meet the requirements of the previous WQS variance. For a waterbody WQS variance renewal, the state must also provide documentation of whether and to what extent BMPs have been implemented to address the pollutant(s) subject to the WQS variance and the water quality progress achieved during the WQS variance period. Renewal of a WQS variance may be disapproved if the applicant did not comply with the conditions of the original WQS variance, or otherwise does not meet the requirements of this section.

9.Add § 131.15 to subpart B to read as follows:

§ 131.15 Compliance schedule authorizing provisions.

A State may, at its discretion and consistent with state law, authorize schedules of compliance for water quality-based effluent limits (WQBELs) in NPDES permits by including a compliance schedule authorizing provision in its water quality standards or implementing regulations. Any such provision is a water quality standard subject to EPA review and approval and must be consistent with sections 502(17) and 301(b)(1)(C) of the Act. Individual compliance schedules issued pursuant to such authorizing provisions are not themselves water quality standards. Individual compliance schedules must be consistent with CWA section 502(17), the state's EPA-approved compliance schedule authorizing provision, and the requirements of §§ 122.2 and 122.47.

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Subpart C—Procedures for Review and Revision of Water Quality Standards Back to Top

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10.Amend § 131.20 by revising paragraphs (a) and (b) to read as follows:

§ 131.20 State review and revision of water quality standards.

(a) State Review. The State shall from time to time, but at least once every 3 years, hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards; in particular, any water body segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act shall be re-examined every 3 years to determine if any new information has become available. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingly. Similarly, a State shall re-examine its water quality criteria to determine if any criteria should be revised in light of any new or updated CWA section 304(a) criteria recommendations to assure that designated uses continue to be protected. Procedures States establish for identifying and reviewing water bodies for review should be incorporated into their Continuing Planning Process.

(b) Public Participation. The State shall hold public hearings for the purpose of reviewing or revising water quality standards, in accordance with provisions of State law and EPA's public participation regulation (40 CFR part 25). The proposed water quality standards revision and supporting analyses shall be made available to the public prior to the hearing.

* * * * *

11.Amend § 131.22 by revising paragraph (b) to read as follows:

§ 131.22 EPA promulgation of water quality standards.

* * * * *

(b) The Administrator may also propose and promulgate a regulation, applicable to one or more States, setting forth a new or revised standard upon determining such a standard is necessary to meet the requirements of the Act. To constitute an Administrator's determination, such determination must:

(1) Be signed by the Administrator or his or her duly authorized delegate, and

(2) Contain a statement that the document constitutes an Administrator's determination under section 303(c)(4)(B) of the Act.

* * * * *

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Subpart D—Federally Promulgated Water Quality Standards Back to Top

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12.Amend § 131.34 by revising paragraph (c) to read as follows:

§ 131.34 Kansas.

* * * * *

(c) Water quality standard variances. The Regional Administrator, EPA Region 7, is authorized to grant variances from the water quality standards in paragraphs (a) and (b) of this section where the requirements of § 131.14 are met.

13.Amend § 131.40 by revising paragraph (c) to read as follows:

§ 131.40 Puerto Rico.

* * * * *

(c) Water quality standard variances. The Regional Administrator, EPA Region 2, is authorized to grant variances from the water quality standards in paragraphs (a) and (b) of this section where the requirements of § 131.14 are met.

end regulatory text

[FR Doc. 2013-21140 Filed 9-3-13; 8:45 am]

BILLING CODE 6560-50-P

Footnotes Back to Top

1. Hereafter referred to as “states and authorized tribes” or “states and tribes.” “State” in the CleanWater Act and this document refers to a state, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.

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2. In this preamble, the EPA uses the term “water quality standards regulation” to mean subparts A, B, and C of part 131. These three subparts, comprising §§ 131.1 through 131.22, contain general provisions, requirements for establishing standards, and procedures for review and revision of standards, respectively. Part 131 also includes a subpart D that contains the text of WQS the EPA has promulgated to replace or augment state and tribal standards.

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3. First edition, December 1983; second edition, EPA 823-B-94-005a, August 1994.

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4. First edition, EPA 440/4-85-032, September 1985; revised edition, EPA 505/2-90-001, March 1991.

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5. Proceedings from the national symposium on designated uses can be found at http://water.epa.gov/scitech/swguidance/standards/uses/symposium_index.cfm.

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6. A summary of the co-regulator workshops and a link to the use attainability analysis (UAA) case studies can be found at http://water.epa.gov/scitech/swguidance/standards/uses/uaa/info.cfm.

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7. See 40 CFR 131.2; 131.5(a)(4); 131.6(a),(f); 131.10(g), (j), (k).

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8. See 40 CFR 131.3(g). A UAA is a structured scientific assessment of the factors affecting the attainment of the use that may include physical, chemical, biological, and economic factors as described in § 131.10(g).

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9. EPA's “rebuttable presumption” that the uses specified in CWA section 101(a)(2) are presumed attainable, unless demonstrated to be unattainable through a UAA, has been upheld in Idaho Mining Association v. Browner, 90 F. Supp. 2d 1078 (D. Idaho 2000).

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11. EPA notes that a use may meet the description of a “sub-category of a use specified in section 101(a)(2) of the Act,” but not provide an equal level of protection as a use specified in section 101(a)(2) of the Act. If a state wishes to designate such a sub-category, a UAA would be required, consistent with § 131.10(j).

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13. PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700, 705 (1994) (“A 1987 amendment to the Clean Water Act makes clear that section 303 also contains an `antidegradation policy . . .' ”).

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14. Native Village of Point Hope v. U.S. Envtl. Prot. Agency, No. 3:11-cv-00200-TMB, slip op. at 24-25 (D. Alaska Sept. 14, 2012).

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15. See “EPA Region VIII Guidance: Antidegradation Implementation; Requirements, Options, and EPA Recommendations Pertaining to State/Tribal Antidegradation Programs,” August, 1883, page 14, http://water.epa.gov/scitech/swguidance/standards/adeg/upload/Region8_ch2_pg5-20.pdf.

16. See “Proposed Water Quality Standards for Kentucky,” November 2002, page 68977, http://www.epa.gov/fedrgstr/EPA-WATER/2002/November/Day-14/w28922.htm.

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17. As of 2013, the EPA is aware of 25 states that have adopted antidegradation implementation methods entirely into rule.

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18. The EPA distinguishes WQS variances, as described in today's proposed rulemaking, from variances as described in the EPA's permitting regulation at §§ 122.2 and 125.3.

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19. The EPA's memoranda discussing variances are available on the EPA's Web site at http://water.epa.gov/scitech/swguidance/waterquality/standards/handbook/chapter05.cfm#section3.

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20. “Permanent” is used here and throughout this section to contrast between the time-limited nature of variances and designated use changes in accordance with 40 CFR 131.10 that require a revision to a State's water quality standards to reverse. In accordance with 40 CFR 131.20, waters that “do not include the uses specified in section 101(a)(2) of the Act shall be re-examined every 3 years to determine if new information has become available. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingly.”

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21. Variances in Water Quality Standards, March 15, 1985, Memo from Edwin L. Johnson, Director of the Office of Water Regulations and Standards, to the Regional Water Division Directors and the Advanced Notice of Proposed Rulemaking at 63 FR 36759.

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22. The EPA addressed variances in its Kansas and Puerto Rico promulgations and part 132 Great Lakes Water Quality Guidance regulations (Published March 23, 1995, http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=105020ee867fe139a8d0965b23bf7557&rgn=div5&view=text&node=40:23.0.1.1.19&idno=40).

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24. Discharger-specific Variances on a Broader Scale: Developing Credible Rationales for Variances that Apply to Multiple Dischargers, EPA-820-F-13-012, March 2013 (http://water.epa.gov/scitech/swguidance/standards/upload/Discharger-specific-Variances-on-a-Broader-Scale-Developing-Credible-Rationales-for-Variances-that-Apply-to-Multiple-Dischargers-Frequently-Asked-Questions.pdf).

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25. The EPA's 1994 WQS Handbook stated that “EPA has approved state adopted variances in the past and will continue to do so if …reasonable progress is being made toward meeting the standards.” The EPA's 1998 ANPRM indicated that the EPA was considering revising its regulations to include a requirement that before a variance may be granted the applicant must include documentation that “…reasonable progress will be made toward meeting the underlying or original standard.” The EPA did not propose a revised regulation at that time.

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26. A PMP is a structured process to reduce loadings of a pollutant by identifying, preventing and reducing loadings, improving processes and improving wastewater treatment.

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27. The § 131.10(g)(6) analysis would include costs of point source controls and the impacts on the surrounding community.

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28. As specified in § 131.10(g)(3) and cross-referenced in § 131.14(b)(2)(i).

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29. i.e., not just those that may already be required by state regulations.

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31. “The Trust Territory of the Pacific Islands” became the “Commonwealth of the Northern Mariana Islands” in 1986 via Presidential Proclamation. See http://www.presidency.ucsb.edu/ws/index.php?pid=36688#axzz1XrK7AXLN.

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