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Environmental Protection Agency § 131.10 

which may include the administration 

of programs and services authorized by 

the Indian Self-Determination and 

Education Assistance Act (25 U.S.C. 450 

et seq.), the Indian Mineral Development Act (25 U.S.C. 2101 et seq.), or the 

Indian Sanitation Facility Construction Activity Act (42 U.S.C. 2004a); 

(ii) A list of existing environmental 

or public health programs administered by the Tribal governing body and 

copies of related Tribal laws, policies, 

and regulations; 

(iii) A description of the entity (or 

entities) which exercise the executive, 

legislative, and judicial functions of 

the Tribal government; 

(iv) A description of the existing, or 

proposed, agency of the Indian Tribe 

which will assume primary responsibility for establishing, reviewing, implementing and revising water quality 

standards; 

(v) A description of the technical and 

administrative capabilities of the staff 

to administer and manage an effective 

water quality standards program or a 

plan which proposes how the Tribe will 

acquire additional administrative and 

technical expertise. The plan must address how the Tribe will obtain the 

funds to acquire the administrative 

and technical expertise. 

(5) Additional documentation required by the Regional Administrator 

which, in the judgment of the Regional 

Administrator, is necessary to support 

a Tribal application. 

(6) Where the Tribe has previously 

qualified for eligibility or ‘‘treatment 

as a state’’ under a Clean Water Act or 

Safe Drinking Water Act program, the 

Tribe need only provide the required 

information which has not been submitted in a previous application. 

(c) Procedure for processing an Indian Tribe’s application. 

(1) The Regional Administrator shall 

process an application of an Indian 

Tribe submitted pursuant to § 131.8(b) 

in a timely manner. He shall promptly 

notify the Indian Tribe of receipt of the 

application. 

(2) Within 30 days after receipt of the 

Indian Tribe’s application the Regional 

Administrator shall provide appropriate notice. Notice shall: 

(i) Include information on the substance and basis of the Tribe’s assertion of authority to regulate the quality of reservation waters; and 

(ii) Be provided to all appropriate 

governmental entities. 

(3) The Regional Administrator shall 

provide 30 days for comments to be 

submitted on the Tribal application. 

Comments shall be limited to the 

Tribe’s assertion of authority. 

(4) If a Tribe’s asserted authority is 

subject to a competing or conflicting 

claim, the Regional Administrator, 

after due consideration, and in consideration of other comments received, 

shall determine whether the Tribe has 

adequately demonstrated that it meets 

the requirements of § 131.8(a)(3). 

(5) Where the Regional Administrator 

determines that a Tribe meets the requirements of this section, he shall 

promptly provide written notification 

to the Indian Tribe that the Tribe is 

authorized to administer the Water 

Quality Standards program. 

[56 FR 64895, Dec. 12, 1991, as amended at 59 

FR 64344, Dec. 14, 1994] 

Subpart B—Establishment of Water 

Quality Standards 

§ 131.10 Designation of uses. 

(a) Each State must specify appropriate water uses to be achieved and 

protected. The classification of the waters of the State must take into consideration the use and value of water 

for public water supplies, protection 

and propagation of fish, shellfish and 

wildlife, recreation in and on the 

water, agricultural, industrial, and 

other purposes including navigation. In 

no case shall a State adopt waste 

transport or waste assimilation as a 

designated use for any waters of the 

United States. 

(b) In designating uses of a water 

body and the appropriate criteria for 

those uses, the State shall take into 

consideration the water quality standards of downstream waters and shall 

ensure that its water quality standards 

provide for the attainment and maintenance of the water quality standards of 

downstream waters. 

(c) States may adopt sub-categories 

of a use and set the appropriate criteria to reflect varying needs of such 

sub-categories of uses, for instance, to 


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§ 131.11 40 CFR Ch. I (7–1–08 Edition) 

differentiate between cold water and 

warm water fisheries. 

(d) At a minimum, uses are deemed 

attainable if they can be achieved by 

the imposition of effluent limits required under sections 301(b) and 306 of 

the Act and cost-effective and reasonable best management practices for 

nonpoint source control. 

(e) Prior to adding or removing any 

use, or establishing sub-categories of a 

use, the State shall provide notice and 

an opportunity for a public hearing 

under § 131.20(b) of this regulation. 

(f) States may adopt seasonal uses as 

an alternative to reclassifying a water 

body or segment thereof to uses requiring less stringent water quality criteria. If seasonal uses are adopted, 

water quality criteria should be adjusted to reflect the seasonal uses, 

however, such criteria shall not preclude the attainment and maintenance 

of a more protective use in another 

season. 

(g) States may remove a designated 

use which is not an existing use, as defined in § 131.3, or establish sub-categories of a use if the State can demonstrate that attaining the designated 

use is not feasible because: 

(1) Naturally occurring pollutant 

concentrations prevent the attainment 

of the use; or 

(2) Natural, ephemeral, intermittent 

or low flow conditions or water levels 

prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges 

without violating State water conservation requirements to enable uses 

to be met; or 

(3) 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; or 

(4) Dams, diversions or other types of 

hydrologic modifications preclude the 

attainment of the use, and it is not feasible to restore the water body to its 

original condition or to operate such 

modification in a way that would result in the attainment of the use; or 

(5) Physical conditions related to the 

natural features of the water body, 

such as the lack of a proper substrate, 

cover, flow, depth, pools, riffles, and 

the like, unrelated to water quality, 

preclude attainment of aquatic life 

protection uses; or 

(6) Controls more stringent than 

those required by sections 301(b) and 

306 of the Act would result in substantial and widespread economic and social impact. 

(h)States may not remove designated 

uses if: 

(1) They are existing uses, as defined 

in § 131.3, unless a use requiring more 

stringent criteria is added; or 

(2) Such uses will be attained by implementing effluent limits required 

under sections 301(b) and 306 of the Act 

and by implementing cost-effective and 

reasonable best management practices 

for nonpoint source control. 

(i) Where existing water quality 

standards specify designated uses less 

than those which are presently being 

attained, the State shall revise its 

standards to reflect the uses actually 

being attained. 

(j) A State must conduct a use attainability analysis as described in 

§ 131.3(g) whenever: 

(1) The State designates or has designated uses 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 or to adopt subcategories of uses specified in section 

101(a)(2) of the Act which require less 

stringent criteria. 

(k) A State is not required to conduct 

a use attainability analysis under this 

regulation whenever designating uses 

which include those specified in section 

101(a)(2) of the Act. 

§ 131.11 Criteria. 

(a) Inclusion of pollutants: (1) States 

must adopt those water quality criteria that protect the designated use. 

Such criteria must be based on sound 

scientific rationale and must contain 

sufficient parameters or constituents 

to protect the designated use. For waters with multiple use designations, 

the criteria shall support the most sensitive use. 

(2) Toxic pollutants. States must review water quality data and information on discharges to identify specific 


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Environmental Protection Agency § 131.20 

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 35). 

(b) Form of criteria: In establishing 

criteria, States should: 

(1) Establish numerical values based 

on: 

(i) 304(a) Guidance; or 

(ii) 304(a) Guidance modified to reflect site-specific conditions; or 

(iii) Other scientifically defensible 

methods; 

(2) Establish narrative criteria or criteria based upon biomonitoring methods where numerical criteria cannot be 

established or to supplement numerical 

criteria. 

§ 131.12 Antidegradation policy. 

(a) The State shall develop and adopt 

a statewide antidegradation policy and 

identify the methods for implementing 

such policy pursuant to this subpart. 

The antidegradation policy and implementation methods shall, at a minimum, be consistent with the following: 

(1) Existing instream water uses and 

the level of water quality necessary to 

protect the existing uses shall be maintained and protected. 

(2) Where the quality of the waters 

exceed levels necessary to support 

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 assure water quality adequate to protect existing uses 

fully. Further, the State shall assure 

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. 

(3) Where high quality waters constitute an outstanding National resource, such as waters of National and 

State parks and wildlife refuges and 

waters of exceptional recreational or 

ecological significance, that water 

quality shall be maintained and protected. 

(4) In those cases where potential 

water quality impairment associated 

with a thermal discharge is involved, 

the antidegradation policy and implementing method shall be consistent 

with section 316 of the Act. 

§ 131.13 General policies. 

States may, at their discretion, include in their State standards, policies 

generally affecting their application 

and implementation, such as mixing 

zones, low flows and variances. Such 

policies are subject to EPA review and 

approval. 

Subpart C—Procedures for Review 

and Revision of Water Quality 

Standards 

§ 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 

three years, hold public hearings for 

the purpose of reviewing applicable 

water quality standards and, as appropriate, modifying and adopting standards. 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 three years to determine if 

any new information has become available. If such new information indicates 

that the uses specified in section 


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