U.S. Environmental Protection Agency

Documentation of OMB Review Under Executive Order 12866

Title of Action:

Water QualityStandardsRegulatory Revisions;Final Rule

Docket#: EPA-HQ-OW-2010-0606 FRL#: 9921-21-OW RIN: 2040-AF16

This action was submitted to the Office of Management and Budget (OMB) for review under Executive Order (E.O.)

12866, titled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Whenever EPA makes publicly available

a regulatory action that was reviewed under E.O. 12866, section 6(a)(3)(E) of the E.O. directs the Agency to also:

(1) Make available to the public a copy of the information that was provided to OMB’s Office of Information and

Regulatory Affairs (OIRA) for review under the E.O., i.e., the text of the draft regulatory action and, if applicable,

an assessment of the potential costs and benefits, as well as additional information for those actions that are

determined to be economically significant under the E.O. (Information requirements are described in sections

6(a)(3)(B) and (C)).

(2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was

subsequently issued, using a method that is complete, clear, and simple.

(3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA.

For this regulatory action, were substantive changes made to information reviewed under E.O.

12866? [Please check the appropriate answer.]

No. [In the docket, include the information identified in item (1) below.]

Yes. [In the docket, include the information identified in items (1) – (3) below.]

Accordingly, the Agency has included this form and the following information in the public

docket for this regulatory action: [Please check the appropriate information.]

(1) A copy of the information that was provided to OIRA for review under the E.O.

(2) Documentation of any substantive changes made to the draft regulatory text that was

submitted to OIRA when compared with what was subsequently made publicly available.

The documentation is provided on the pages following this form. Changes made at the

suggestion or recommendation of OIRA, if any, are clearly identified through attribution to

OIRA. EPA has used one or more of the following methods to note changes: [Select the

appropriate option(s).]

(a) Redline-Strikeout – A copy of the draft regulatory action submitted, using redlinestrikeout to show the substantive changes that were made.

(b) Hand Markup – A copy of the draft regulatory action submitted, using handwritten notes

to show the substantive changes that were made.

(c) Note to the file - A document that identifies the substantive changes that were made,

with page and paragraph references to the draft regulatory action that was submitted.

If you have any questions about this regulatory action or this documentation, please call the

contact:

Name: JANITAAGUIRRE Email: AGUIRRE.JANITA@EPA.GOV Phone: 202-566-1149

Revised 05/05/2010
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO 12866_OW WQS 2040-AF 16 FINAL_EA_20141216

Economic Analysis for the Water Quality Standards Regulatory 

Revisions (Final Rule)

December 2014

U.S. Environmental Protection Agency

Office of Water

Office of Science and Technology

1200 Pennsylvania Avenue N.W.

Washington, DC 20460
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 i

Table of Contents

Executive Summary.......................................................................................................................v

1. Introduction ...................................................................................................................... 1-1

1.1 Background ........................................................................................................................ 1-1

1.2 Scope of the Analysis......................................................................................................... 1-2

1.3 Organization of this Report................................................................................................ 1-2

2. Baseline and Rule Requirements.................................................................................... 2-1

2.1 Administrator’s Determinations......................................................................................... 2-1

2.1.1 1983 Regulation........................................................................................................ 2-1

2.1.2 Revision .................................................................................................................... 2-1

2.2 Designated Uses................................................................................................................. 2-1

2.2.1 1983 Regulation........................................................................................................ 2-1

2.2.2 Revision .................................................................................................................... 2-1

2.3 Triennial Reviews .............................................................................................................. 2-2

2.3.1 1983 Regulation........................................................................................................ 2-2

2.3.2 Revision .................................................................................................................... 2-2

2.4 Antidegradation.................................................................................................................. 2-2

2.4.1 1983 Regulation........................................................................................................ 2-2

2.4.2 Revision .................................................................................................................... 2-3

2.5 WQS Variances.................................................................................................................. 2-3

2.5.1 1983 Regulation........................................................................................................ 2-3

2.5.2 Revision .................................................................................................................... 2-3

2.6 Compliance Schedule Authorizing Provisions................................................................... 2-4

2.6.1 1983 Regulation........................................................................................................ 2-4

2.6.2 Revision .................................................................................................................... 2-4

2.7 Other Changes.................................................................................................................... 2-4

3. Potential Incremental Burden and Cost of the Revisions............................................. 3-1

3.1 Data and Methods............................................................................................................... 3-1

3.2 Estimated Burden and Cost to States and Authorized Tribes ............................................ 3-2

3.2.1 Rulemaking Activities.............................................................................................. 3-2

3.2.2 Administrator’s Determinations ............................................................................... 3-3

3.2.3 Designated Uses........................................................................................................ 3-3

3.2.4 Triennial Reviews..................................................................................................... 3-5

3.2.5 Antidegradation ........................................................................................................ 3-7

3.2.6 WQS Variances ...................................................................................................... 3-16
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December 2014 ii

3.2.7 Compliance Schedules Authorizing Provisions...................................................... 3-19

3.2.8 Summary of Estimated Burden and Cost to States and Authorized Tribes............ 3-19

3.3 Estimated Burden and Cost to the Agency....................................................................... 3-20

3.4 Summary of Potential Burden and Cost........................................................................... 3-22

3.5 Limitations and Uncertainties .......................................................................................... 3-22

3.5.1 Key Assumptions.................................................................................................... 3-23

3.5.2 QA/QC Activities ................................................................................................... 3-25

4. Small Entity Analysis....................................................................................................... 4-1

5. Potential Incremental Benefits of the Revisions............................................................ 5-1

5.1 Benefits by Program Area .................................................................................................. 5-1

5.1.1 Administrator’s Determinations ............................................................................... 5-1

5.1.2 Designated Uses........................................................................................................ 5-2

5.1.3 Triennial Reviews..................................................................................................... 5-2

5.1.4 Antidegradation ........................................................................................................ 5-3

5.1.5 WQS Variances ........................................................................................................ 5-4

5.1.6 Compliance Schedule Authorizing Provisions......................................................... 5-5

5.2 Benefits of Improved Water Quality.................................................................................. 5-6

5.2.1 Market Benefits ........................................................................................................ 5-6

5.2.2 Nonmarket Benefits.................................................................................................. 5-8

6. References ......................................................................................................................... 6-1

7. Appendix: EPA’s CWA Section 304(a) Criteria Recommendations........................... 7-1
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December 2014 iii

List of Exhibits

Exhibit 3-1: Summary of State Government Average Hourly Wage Rates (2013 $).................. 3-2

Exhibit 3-2: Potential One-time Burden and Cost Associated with Rulemaking Activities ....... 3-3

Exhibit 3-3: Potential Annual Burden and Cost Associated with Revisions to Designated Use 

Provisions............................................................................................................................. 3-5

Exhibit 3-4: Potential Annual Burden and Cost Associated with Documenting and Submitting 

Explanations for Not Adopting New or Revised Criteria for Parameters for Which EPA Has 

Published New or Updated CWA Section 304(a) Criteria Recommendations.................... 3-7

Exhibit 3-5: Potential Incremental Annual Burden and Cost Associated with 

Performing/Evaluating Additional Tier 2 Antidegradation Reviews................................. 3-10

Exhibit 3-6: Potential Annual Burden and Cost Associated With More Extensive Tier 2 

Antidegradation Reviews ................................................................................................... 3-12

Exhibit 3-7: Potential Annual Burden and Cost Associated with Public Involvement When 

Deciding Which Waters Will Receive Tier 2 Antidegradation Protection ........................ 3-14

Exhibit 3-8: Potential Annual Burden and Cost Associated with Public Involvement for 

Developing or Revising Antidegradation Implementation Methods.................................. 3-16

Exhibit 3-9: Potential Annual Burden and Cost Associated with Additional Documentation 

Requirements for WQS Variance Submissions.................................................................. 3-17

Exhibit 3-10: Potential Annual Burden and Cost Associated with Reevaluating WQS Variances

............................................................................................................................................ 3-19

Exhibit 3-11: Summary of Potential Incremental Administrative Burden and Cost ................. 3-20

Exhibit 3-12: Summary of Potential Incremental Administrative Burden and Cost to the Agency

............................................................................................................................................ 3-21

Exhibit 3-13: Summary of Potential Incremental Administrative Burden and Cost to States, 

Authorized Tribes, and the Agency.................................................................................... 3-22

Exhibit 3-14: Uncertainties in the Analysis............................................................................... 3-23

Exhibit 7-1: Current and Prior CWA Section 304(a) Criteria Recommendation Publication Years

.............................................................................................................................................. 7-1
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 iv

Acronyms and Abbreviations

ANPRM Advance Notice of Proposed Rulemaking

BLS Bureau of Labor Statistics

CWA Clean Water Act

EA Economic Analysis

EPA Environmental Protection Agency

FTE Full-Time Equivalent

GS General Schedule

HAU Highest Attainable Use

ICIS Integrated Compliance Information System

IDNR Iowa Department of Natural Resources

MDNR Missouri Department of Natural Resources

NPDES National Pollutant Discharge Elimination System

ONRW Outstanding National Resources Water

RFA Regulatory Flexibility Act

SBREFA Small Business Regulatory Enforcement Fairness Act

States and 

authorized tribes 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.

TAS Treatment in Manner Similar to a State

TMDL Total Maximum Daily Load

UAA Use Attainability Analysis

WQBEL Water Quality-Based Effluent Limit

WQS Water Quality Standards
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December 2014 v

Executive Summary

The Environmental Protection Agency (EPA) updates six areas of the federal water quality 

standards (WQS) regulation at 40 CFR Part 131 that implements the Clean Water Act (CWA). 

This update provides a better-defined pathway for states and authorized tribes to address 

complex water quality challenges and protect high quality waters and it promotes more 

transparent and engaged public participation. 

This report describes EPA’s analysis of the potential cost and benefits to all 50 states, the District 

of Columbia, five territories, the 40 authorized tribes with EPA-approved WQS, and to EPA that 

may be associated with these revisions to the federal regulation. EPA estimates the total annual 

cost for the final rule to range from $ 6.51 million per year to $ 24.11 million per year. Although 

EPA could not quantitatively estimate monetary benefits, EPA identifies and qualitatively 

describes many of the expected benefits of the rule.

EPA estimates the potential incremental burden and cost of today’s final rule by identifying 

elements of the rule that could potentially result in incremental administrative burden, estimating 

the incremental number of labor hours states and authorized tribes may need to allocate in order 

to comply with those elements of the rule, and estimating the cost associated of those additional 

labor hours.
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December 2014 1. Introduction 1-1

1. Introduction

EPA updates the federal water quality standards (WQS) regulation at 40 CFR Part 131 that

implements the Clean Water Act (CWA). This update provides a better-defined pathway for 

states and authorized tribes to address complex water quality challenges and protect high quality 

waters. It also promotes more transparent and engaged public participation. The final rule revises 

six program 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) permit 

compliance schedule authorizing provisions. This report describes EPA’s analysis of the 

potential cost and benefits that may be associated with these revisions to the federal regulation.

1.1 Background

The Federal Water Pollution Control Act (as amended through P.L. 107–303, November 27, 

2002), also known as the Clean Water Act (CWA), sets the basic structure for regulating 

pollutant discharges into the waters of the United States. In the CWA, 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” (CWA sections 101(a) and 101(a)(2)).

CWA section 303 establishes the basis for the WQS regulation. WQS reflect the CWA national 

objectives for each water body. The main components of WQS are designated uses, water quality 

criteria, and antidegradation requirements. Designated uses establish the environmental 

objectives for a water body, and water quality criteria define the minimum conditions necessary 

to achieve those environmental objectives. Antidegradation requirements complement designated 

uses and criteria by providing a framework for maintaining and protecting water quality.

After states, authorized tribes, territories, and the District of Columbia (hereafter, states and 

authorized tribes) establish designated uses of waters under their jurisdiction, they must establish 

water quality criteria that protect those uses. EPA’s regulation at § 131.11(a)(1) provides that 

water quality criteria “must be based on sound scientific rationale, and must contain sufficient 

parameters or constituents to protect the designated use.” States and authorized tribes must also 

adopt antidegradation policies to protect and maintain high quality waters, outstanding national 

resource waters, and existing uses of all waters, and identify specific methods to implement those 

policies (§ 131.12).

The WQS regulation provides specific requirements to adopt, revise, and remove designated uses

(§ 131.10). A state or authorized tribe may choose to adopt a WQS variance if the use cannot be 

attained immediately but the use may be attainable in the future. A WQS variance is a timelimited designated use and associated water quality criterion targeted to a specific pollutant(s), 

permittee(s), and water body or waterbody segment. A WQS variance is different from a change 

to the designated use and associated criterion in that it is 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.
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December 2014 1. Introduction 1-2

The regulation requires states and authorized tribes to hold a public hearing to review applicable 

WQS and solicit input from the public at least once every three years (i.e., a “triennial review”). 

Such hearings on WQS provide an essential opportunity for stakeholders to become involved in 

setting WQS and to make concerns known to state and authorized tribal officials. In addition, the 

regulation requires states and authorized tribes to consider new available data and information 

and revise standards accordingly. The results of triennial reviews, regardless of whether the 

review results in revisions to state or authorized tribal regulation, along with any information 

supporting a WQS revision must be submitted to EPA for review and approval.

EPA established the core of the WQS regulation in a final rule issued in 1983. In 1998, 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 the 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 authorized tribal WQS programs. Although EPA chose not to 

move forward with a rulemaking after the ANRPM, as a result of the input received, EPA 

identified a number of high priority issue areas for which the Agency developed guidance, 

provided technical assistance, and continued further discussion and dialogue to assure more 

effective program implementation. While this rule is not a direct continuation of the 1998 

ANPRM, it is a part of EPA’s ongoing effort to clarify and strengthen the WQS program.

1.2 Scope of the Analysis

EPA estimated potential incremental administrative costs that may result from the regulatory 

revisions (i.e., costs that are beyond those associated with implementation of the 1983 WQS 

regulation). Because today’s rule does not establish any requirements directly applicable to 

regulated entities, EPA focuses on the potential impact to states and authorized tribes. Although 

some of the provisions in today’s rule may lead to increased administrative costs to regulated 

entities, improved understanding of the WQS regulation and clarification of the requirements of 

certain provisions may offset some of those costs. Although this analysis does not estimate

potential offsetting reductions in administrative costs, it does qualitatively describe some of the 

benefits of today’s rule.

1.3 Organization of this Report

The remainder of this report contains the following:

• Section 2 summarizes the regulatory framework as adopted in 1983 and the 

regulatory revisions in today’s rule.

• Section 3 describes the data and methods EPA uses to estimate the cost of today’s 

rule, and the results of the analysis.

• Section 4 discusses potential impacts to small entities.

• Section 5 qualitatively describes the benefits that may be associated with today’s rule.

• Section 6 provides references.

• Section 7 provides a listing of EPA’s CWA section 304(a) criteria recommendations

and publication years EPA uses to estimate the cost of today’s rule.
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December 2014 2. Baseline and Rule Requirements 2-1

2. Baseline and Rule Requirements

Today’s rule updates the 1983 WQS regulation in the following program 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. This section describes the regulatory framework prior to the effective 

date of today’s rule and summarizes the regulatory changes in today’s rule. For more details on 

the revisions and why EPA made them, please refer to the preamble of today’s rule.

2.1 Administrator’s Determinations 

2.1.1 1983 Regulation

Section 303(c)(4)(B) of the CWA provides the EPA Administrator with authority to determine 

that new or revised WQS are 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. 

The Administrator has the discretion to make such a determination after evaluating all relevant 

factors. An Administrator’s determination triggers the requirement for the EPA to promptly 

prepare and publish proposed regulations setting forth new or revised WQS for the waters of the 

United States involved, and for the EPA to promulgate such WQS unless the state or authorized 

tribe adopts and the EPA approves such WQS before the EPA promulgation is finalized.

2.1.2 Revision

Today’s rule clarifies 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 CWA. EPA estimates the burden and 

cost of these revisions in Section 3.2.2.

2.2 Designated Uses

2.2.1 1983 Regulation

Designated uses are defined at § 131.3(f) as the “uses specified in WQS for each water body or 

segment whether or not they are being attained.” A use is a particular function of, or activity in, a 

water body that requires a specific level of water quality.

States and authorized tribes have the flexibility in managing their designated uses as long as they 

meet the requirements of the CWA and the WQS regulation. Specifically, the WQS regulation at 

§131.10(a) requires states and authorized tribes to 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 

when establishing designated uses. In addition, the regulation at § 131.10(j) requires states and 

authorized tribes to conduct 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 CWA, or when adopting sub-categories of such uses which require less stringent criteria.

2.2.2 Revision

Today’s rule revises several regulatory provisions that pertain to when a UAA is or is not 

required. Today’s rule also clarifies that states and authorized tribes must adopt the highest 
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December 2014 2. Baseline and Rule Requirements 2-2

attainable use as newly defined at §131.10(m) when adopting or revising a designated use based 

on a required UAA. Finally, today’s rule clarifies in 131.10(k)(3) that when removing or revising 

a non-101(a)(2) use as newly defined at § 131.10(q), states and authorized tribes are not required 

to conduct a UAA but must submit documentation justifying how consideration of the use and 

value of water for those uses listed in § 131.10(a) appropriately supports the state or authorized 

tribal action. EPA estimates the burden and cost of these revisions in Section 3.2.3

2.3 Triennial Reviews

2.3.1 1983 Regulation

CWA section 303(c)(1) and the regulation at § 131.20 requires states and authorized tribes to 

hold a public hearing to review applicable WQS at least once every three years (i.e., a “triennial 

review”) and, as appropriate, modify and adopt standards. States and authorized tribes must 

submit the results of each triennial review to EPA whether or not it resulted in a modification to 

WQS. One area that states and authorized tribes must review triennially is their applicable water 

quality criteria. States and authorized tribes must adopt criteria that are scientifically defensible 

and protective of the designated use. EPA has the role of publishing CWA section 304(a) 

national criteria recommendations to assist states and authorized tribes in establishing water 

quality criteria in their WQS to “protect the public health or welfare, enhance the quality of 

water and serve the purposes of” the Act (CWA section 303(c)(2)(A)).

2.3.2 Revision

Today’s rule contains two revisions to the triennial review requirements at § 131.20(a). First, 

today’s rule requires that if states and authorized tribes choose not to adopt new or revised 

criteria for any parameters for which EPA has published new or updated CWA section 304(a) 

criteria recommendations, they must explain their decision when submitting the results of their 

triennial review to EPA per CWA section 303(c)(1) and § 131.20(c). Second, today’s rule

clarifies what are the “applicable water quality standards” that states and authorized tribes must 

review triennially. EPA estimates the burden and cost of these revisions in Section 3.2.4.

2.4 Antidegradation

2.4.1 1983 Regulation

Section 131.12 of the regulation requires states and authorized tribes to adopt antidegradation 

policies to protect water quality and identify methods for implementing such policies. Generally, 

states and authorized tribes establish three tiers of antidegradation protection:

• Tier 1 protects existing uses.

• Tier 2 protects water quality that is better than necessary to support CWA section 

101(a)(2) goals. The regulation at § 131.12(a)(2) allows states and authorized tribes to 

lower water quality in Tier 2 waters only if the lowering is “necessary to accommodate 

important economic or social development in the area in which the waters are located.”

• Tier 3 protects water quality in Outstanding National Resources Waters (ONRWs), which 

states and authorized tribes establish. The regulation at § 131.12(a)(2) requires that water 

quality in ONRWs “shall be maintained and protected.”
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December 2014 2. Baseline and Rule Requirements 2-3

States and authorized tribes adopt antidegradation policies into WQS and submit those policies

to EPA for review and approval. States and authorized tribes must also identify the methods they 

will use to implement the antidegradation policy. States and authorized tribes can, but are not 

required to, adopt antidegradation implementation methods as a WQS.

States and authorized tribes typically use either a parameter-by-parameter approach or a water 

body-by-water body approach to identify high quality waters for Tier 2 protection

2.4.2 Revision

Today’s rule could potentially result in incremental administrative burden and cost associated 

with implementation of state or tribal antidegradation policy. Today’s rule prohibits a state or 

authorized tribe from denying Tier 2 antidegradation protection to a water body solely because 

water quality does not exceed levels necessary to support all of the uses specified in CWA 

section 101(a)(2). Today’s rule also provides that before allowing a lowering of high water 

quality, states and authorized tribes must evaluate a range of non-degrading and less degrading 

practicable alternatives and select one such alternative for implementation. Furthermore, today’s 

rule specifies that, where states and authorized tribes identify waters to receive Tier 2 protection 

on a water body-by-water body basis, states and authorized tribes must involve the public on any 

decisions pertaining to when they will provide Tier 2 protection, and the factors considered in 

such decisions. Finally, today’s rule requires states’ and authorized tribes’ antidegradation 

policies to be consistent with these requirements. States’ and authorized tribes’ antidegradation 

implementation methods must be consistent with the policy, the requirements above, and states 

and authorized tribes provide an opportunity for public involvement during the development and 

any subsequent revisions of antidegradation implementation methods.

EPA estimates the burden and cost of these revisions in Section 3.2.5.

2.5 WQS Variances

2.5.1 1983 Regulation

The nationally applicable WQS regulation only briefly mentioned WQS variances at § 131.13.

Section 131.13 indicates that states and authorized tribes may adopt general policies affecting the 

application and implementation of WQS, and may include WQS variances policies in their state

or authorized tribal standards at their discretion. Although EPA has addressed WQS variances 

through guidance, memoranda, and approval actions for many years, EPA has not provided 

specific regulatory language pertaining to WQS variances prior to this rule.

2.5.2 Revision

Today’s rule adds a new regulatory section at § 131.14 that explicitly authorizes the use of WQS 

variances when designated uses are not attainable in the near-term but may be attainable in the 

future. Today’s rule: (1) defines a WQS variance; (2) describes the circumstances under which a 

WQS variance is applicable; (3) describes the minimum information a state or authorized tribe

must include in the WQS variance; (4) describes the documentation that a state or authorized 

tribe must provide to EPA to support a WQS variance when requesting EPA review and 

approval; (5) establishes the link between WQS variances and NPDES permits, (6) requires

periodic reevaluation of a WQS variance longer than five years; (7) provides a mechanism to 

ensure that any reevaluation indicating a more stringent interim WQS is attainable will be
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December 2014 2. Baseline and Rule Requirements 2-4

reflected in the implementing NPDES permit, and (8) ensures an opportunity for public 

participation throughout the variance term.

EPA estimates the burden and cost of these revisions in Section 3.2.6.

2.6 Compliance Schedule Authorizing Provisions

2.6.1 1983 Regulation

EPA’s 1983 WQS regulation (40 CFR Part 131) is silent regarding compliance schedule 

authorizing provisions.

2.6.2 Revision

In 1990, the EPA Administrator concluded that before a permitting authority can include a 

compliance schedule in an NPDES permit, the state or authorized tribe must affirmatively 

authorize the use of compliance schedules in its WQS or implementing regulations.1

Today’s rule requires a state or authorized tribe to adopt a permit compliance schedule 

authorizing provision and for EPA to approve it under CWA section 303(c) before authorizing

the use of compliance schedules in NPDES permits. EPA estimates the burden and cost of these 

revisions in Section 3.2.7.

2.7 Other Changes

Today’s rule also includes several non-substantive editorial changes that are not associated with 

incremental burden or cost and thus not discussed further.

 

1 In the Matter of Star-Kist Caribe, Inc. 3 EAD 172 (April 16, 1990).
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December 2014 3. Potential Incremental Costs and Burden 3-1

3. Potential Incremental Burden and Cost of the Revisions

Today’s rule does not establish new requirements directly applicable to regulated entities. Thus,

this analysis focuses on the potential impact of today’s rule on the incremental administrative 

burden and cost to states and authorized tribes to implement their WQS program. This section 

presents the data and methods EPA uses to analyze the potential administrative burden and costs

(Section 3.1), the analysis and results for states and authorized tribes (Section 3.2), the analysis 

and results for the Agency (Section 3.3), a summary of the total burden and costs (Section 3.4), 

and a discussion of uncertainties associated with the estimates (Section 3.5).

3.1 Data and Methods

EPA assesses the potential incremental burden and cost associated with today’s rule by first 

estimating the incremental number of labor hours potentially required by each single state or 

authorized tribe to comply with each provision of the rule. EPA then calculates the total number 

of labor hours associated with each provision by multiplying the estimate of labor hours for each

state or authorized tribe by the number of potentially affected states and authorized tribes. EPA 

then estimates the cost of each provision by multiplying the total number of labor hours 

associated with each provision of today’s rule by the average hourly wage rate of the employees

performing the activity. Because activities related to antidegradation are associated with issuance 

or re-issuance of NPDES permits, EPA estimates the number of antidegradation activities 

associated with the antidegradation provisions of today’s rule using a percentage of the number 

of permitted dischargers in potentially affected states and authorized tribes. For these estimates, 

EPA uses its Integrated Compliance Information System for the National Pollutant Discharge 

Elimination System (ICIS-NPDES) database to calculate the number of permitted dischargers.

EPA estimated the incremental number of labor hours required to comply with the proposed rule

published on September 4, 20131 using historical EPA information and data, the historical 

knowledge and best professional judgment of EPA’s personnel with experience administering

the WQS program. EPA estimated the number of labor hours associated with the administrative 

activities required by the proposed rule by soliciting estimates from EPA’s personnel at EPA

Headquarters and all 10 EPA Regional offices. EPA compiled and summarized the estimates of 

labor hours for each required activity and developed by consensus final estimate ranges for each 

activity. EPA developed the economic analysis of the rule proposed on the basis of these 

estimates and solicited public comments on the analysis. After reviewing the comments received,

EPA revised the estimates of incremental labor hours and is using those updated estimates in this

economic analysis of today’s final rule.

EPA estimates the cost of labor for states and authorized tribes using data on state government 

hourly wage rates obtained from the Bureau of Labor Statistics (BLS). These data are not 

available for tribes. EPA chooses Environmental Scientist, Department Manager, Environmental 

Engineer, and Economist as the applicable labor categories. Exhibit 3-1 shows the 2013 labor 

rates for these categories and the calculation of benefits using the BLS Employer Cost for 

Employee Compensation for state and local professional government workers (33% of total 

compensation is attributable to benefits). EPA uses the average wage rate of these four labor 

categories because information on the allocation of labor hours by professional category states 

and authorized tribes use to administer their WQS programs are not available. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-2

Exhibit 3-1: Summary of State Government Average Hourly Wage Rates (2013 $)

Category

Hourly Labor 

Rate Hourly Benefits

Hourly Wage 

Rate

Environmental Scientist (19-2041) $29 $14 $43

Environmental Engineer (17-2081) $35 $17 $53

Economist (19-3011) $31 $15 $46

Manager (11-9121) $37 $18 $55

Average -- -- $49

Source: BLS (2013)

3.2 Estimated Burden and Cost to States and Authorized Tribes

The sections below describes EPA’s incremental labor hour estimates associated with today’s 

rule and the resulting estimated cost. The estimates include those potential burdens and costs

likely to occur only once (one-time burden and cost) and those likely to recur on a regular basis

(annual burden and cost).

3.2.1 Rulemaking Activities

Today’s rule could potentially require states and authorized tribes to perform a WQS rulemaking 

for the purpose of modifying antidegradation policy, revising policies related to the issuance of 

WQS variances (if the state or tribe has adopted such policies in state or tribal statute, rule, or is 

otherwise legally binding), or adopting provisions authorizing the use of permit compliance 

schedules. Thus, states and authorized tribes may need to initiate new rulemaking efforts or 

increase the scope of other planned regulatory changes to comply with the updated federal 

regulation.

The incremental labor hours required for rulemaking efforts are likely specific to each state and 

authorized tribe and will depend on its existing WQS, the level of public interest, and 

administrative procedures. In the proposed rule, EPA estimated the incremental labor hours 

needed to perform a state or authorized tribal rulemaking to range from 100 hours for relatively 

small rule changes (or those that may be performed in conjunction with the triennial review 

process) to 500 hours for new or more complex rulemakings involving more than one provision. 

In response to stakeholder input, EPA revises those estimates to range from 500 hours for 

relatively small rule changes (or those that may be performed in conjunction with the triennial 

review process) to 1,000 hours for new or more complex rulemakings involving more than one 

provision.

There are 50 states, 5 territories, the District of Columbia, and 40 authorized tribes with EPAapproved WQS. For the purpose of this analysis, EPA assumes that all 96 states and authorized 

tribes may need to take a single WQS rulemaking. Thus, EPA estimates a total of 96 (50 + 5 + 1 

+ 40) potentially affected states and authorized tribes. If all 96 states and authorized tribes

undertake a rulemaking activity, the total one-time incremental labor hours required to comply 

with today’s rule range from 48,000 hours (500 hours per rulemaking per state or authorized 

tribe  96 states and authorized tribes) to 96,000 hours (1,000 hours per rulemaking per state or 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-3

authorized tribe  96 states and authorized tribes). Using the estimated average hourly wage rate 

shown in Exhibit 3-1 ($49), EPA estimates the cost associated with state or authorized tribal 

rulemaking activities to range from approximately $2,352,000 ($49 per hour  48,000 hours) to 

$4,704,000 ($49 per hour 96,000 hours).

Note that EPA estimates that today’s rule will require states and authorized tribes to undertake a 

WQS rulemaking only once. Thus, the estimated burden and cost associated with these activities 

are one-time costs. Furthermore, these costs may be an overestimate because the WQS of some

states and authorized tribes may already be in full compliance with today’s rule.

Exhibit 3-2 summarizes the potential incremental one-time burden and cost associated with 

rulemaking activities.

Exhibit 3-2: Potential One-time Burden and Cost Associated with Rulemaking Activities

Burden per 

Rulemaking

(hours)1

Cost per 

Rulemaking2

Number of 

Potentially 

Affected States 

and Authorized 

Tribes3

Total Burden 

(hours)4

Total Cost 

(2013$; 

one-time)5

Annualized

Cost 

(2013$/year)6

500 – 1,000 $24,500 -

$49,000 96 48,000 –96,000

$2,352,000 -

$4,704,000

$158,100 -

$316,200

1. Reflects potential new or increased rulemaking activities to adopt provisions consistent with 

today’s rule into WQS.

2. Hours per state or authorized tribe multiplied by average hourly wage of $49.

3. Includes 50 states, five territories, the District of Columbia, and 40 authorized tribes with EPAapproved WQS.

4. Burden per state or authorized tribe multiplied by total number of potentially affected states and 

authorized tribes.

5. Total burden for all potentially affected states and authorized tribes multiplied by average hourly 

wage of $49.

6. Although EPA expects states and authorized tribes to incur rulemaking cost over an initial threeyear period, it annualized total one-time cost at a 3% discount rate over 20 years for comparative 

purposes.

3.2.2 Administrator’s Determinations

Today’s rule clarifies the process EPA uses to make an Administrator’s determination. EPA

estimates that such a clarification will result in no incremental burden or cost to states and 

authorized tribes and may even result in burden reduction and cost savings by clarifying what 

constitutes an Administrator’s determination and thus reducing litigation resulting from 

regulatory uncertainty.

3.2.3 Designated Uses

Today’s rule makes clear that once a state or authorized tribe has rebutted the presumption of 

attainability by demonstrating through a required UAA that a use specified in section 101(a)(2) 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-4

of the Act is not attainable, it must adopt the highest attainable use (HAU). EPA estimates that

removing a designated use requires approximately the same administrative effort as replacing an 

unattainable use with an attainable use. Thus, EPA assumes for the purpose of this analysis that 

states and authorized tribes incur no incremental burden and cost associated with the requirement 

to adopt the HAU. However, today’s rule may require some states and authorized tribes to

conduct additional analysis to identify the HAU. For states and authorized tribes that do not 

already identify the HAU in their UAA process, the requirement to identify the HAU may 

require additional labor hours resulting in incremental cost.

EPA estimates that 30% additional effort is required to identify the HAU. For the proposed rule, 

EPA estimated that a single UAA that does not identify the HAU requires approximately 100 to 

500 labor hours to develop. After receiving stakeholder input, EPA revises this estimate to 

approximately 500 to 1,000 labor hours. Thus, EPA estimates that revising a designated use may 

require an additional 150 hours (500 hours  30%) to 300 hours (1,000 hours  30%) for each 

UAA if a state or authorized tribe does not already identify the HAU. 

In the economic analysis of the proposed rule, EPA identified 8 states that do not consistently 

identify the HAU when adopting a new or revised designated use based on a required UAA.

However, this estimate did not account for the 40 authorized tribes, 5 territories, or the District of 

Columbia for which EPA has no information. In this analysis, EPA estimates an additional 7 

governmental entities may not currently identify the HAU by calculating the percentage of states 

that do not identify the HAU (8 states ÷ 50 total states = 16%) and applying that percentage to 

the total number of authorized tribes, territories and District of Columbia (16% × (40 authorized 

tribes + 5 territories + 1 District of Columbia) = 7 additional governmental entities). Thus, EPA 

estimates 15 states and authorized tribes (8 states + 7 additional governmental entities) do not 

consistently identify the HAU when adopting new or revised WQS based on a required UAA.

The EPA retains the estimate used for the proposed rule that states and authorized tribes conduct 

on average one designated use removal or revision each year. Thus, EPA estimates the total 

administrative burden associated with requiring states and authorized tribes to identify the HAU 

ranges from 2,250 hours (150 hours per UAA  1 UAA per year  15 states and authorized 

tribes) to 4,500 hours (300 hours per UAA  1 UAA per year  15 states and authorized tribes) 

per year. Using the hourly wage rate shown in Exhibit 3-1 ($49), EPA estimates the total 

incremental cost associated with identifying the HAU could range from $111,000 (2,250 hours 

 $49 per hour) to $221,000 (4,500 hours  $49 per hour) per year.

Exhibit 3-3 summarizes the potential incremental annual burden and cost of today’s rule

associated with designated uses.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-5

Exhibit 3-3: Potential Annual Burden and Cost Associated with Revisions to Designated 

Use Provisions

Burden per State 

or Authorized 

Tribe

(hours/year)

1

Cost per State or 

Authorized Tribe

(2013 $/year)2

Number of 

Potentially 

Affected States 

and Authorized 

Tribes

Annual

Burden 

(hours/year)

3

Annual Cost

(2013 $/year)4

150 - 300 $7,400 - $14,700 15 2,250 – 4,500 $111,000 -

$221,000

1. Reflects potential incremental effort to identify the HAU when revising or removing a 

designated use assuming one use removal or revision per year per state or authorized tribe.

2. Hours per state or authorized tribe multiplied by average hourly wage of $49.

3. Burden per state or authorized tribe multiplied by total number of potentially affected states and 

authorized tribes.

4. Total annual burden for all potentially affected states and authorized tribes multiplied by average 

hourly wage of $49.

3.2.4 Triennial Reviews

Today’s rule includes a requirement that if states and authorized tribes choose not to adopt new 

or revised criteria for any parameters for which EPA has published new or updated CWA section 

304(a) criteria recommendations, states and authorized tribes must explain their decision when 

reporting the results of their triennial review to EPA under CWA section 303(c)(1) and 

§ 131.20(c). This requirement may result in incremental burden and cost.

In the proposed rule, EPA included an explicit reference to CWA section 304(a) recommended 

criteria at § 131.20(a) to clarify that a state or authorized tribe shall re-examine its water quality 

criteria during a 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. Because the proposed revision clarified an existing requirement to review 

applicable standards, the EPA estimated that this revision was unlikely to result in incremental 

burden and costs to states and tribes. After receiving stakeholder input, EPA revised the triennial 

review requirement and estimates a range of 10 to 50 labor hours per pollutant or parameter to 

document why the state or authorized tribe chose not to adopt new or revised criteria for any 

parameters for which EPA has published new or updated CWA section 304(a) criteria 

recommendations. This effort includes writing and reviewing a memorandum of 1-2 pages for 

each pollutant or parameter, and adding the memorandum to the results of the triennial review 

the state or authorized tribe submits to EPA.

EPA estimates the number of new or updated CWA section 304(a) criteria a state or authorized 

tribe may need to consider at each triennial review by assessing the number of CWA section 

304(a) criteria recommendations that EPA has historically provided (see Appendix). EPA has 

provided 371 new or updated CWA section 304(a) criteria recommendations since the enactment 

of the CWA in 1972. Over the 42-year period of the CWA (2014 – 1972 = 42), EPA has 

provided on average approximately 9 new or updated recommendations per year, or 27 per 3-
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-6

year triennial review period (371 CWA section 304(a) recommendations ÷ 42 years × 3 years per 

triennial review).

EPA does not have sufficient information to predict the proportion of new or updated 

CWA section 304(a) criteria recommendations that will or will not lead states and authorized 

tribes to adopt new or revised criteria in a given triennial review. Some states and authorized 

tribes could potentially adopt new or revised criteria for all parameters for which EPA has 

published new or updated CWA section 304(a) criteria recommendations, whereas other states 

and authorized tribes could potentially adopt no criteria for any parameters for which EPA has 

published new or updated CWA section 304(a) criteria recommendations. For the purpose of this 

analysis, EPA assumes that all states and authorized tribes will chose to not adopt new or revised 

criteria for any parameters for which EPA has published new or updated CWA section 304(a) 

criteria recommendations for 50% of EPA’s new or updated CWA section 304(a) criteria 

recommendations and would need to submit documentation to EPA.

EPA estimates the labor hours required to submit documentation on why a state or authorized 

tribe chooses not to adopt new or revised criteria for any parameters for which EPA has 

published new or updated CWA section 304(a) criteria recommendations ranges from 45 hours 

(10 hours per CWA section 304(a) criterion recommendation × 9 recommendations per year × 

50% no new or revised criteria adopted) to 225 hours (50 hours per one CWA section 304(a) 

criterion recommendation × 9 recommendations per year × 50% no new or revised criteria 

adopted) per year for each state and authorized tribe. Assuming all 96 states and authorized tribes

do not adopt new or revised criteria for parameters for 50% of EPA’s newly published new or 

updated CWA section 304(a) criteria recommendations, EPA estimates the total annual labor 

hours ranges from 4,320 (45 hours per year per state or authorized tribe × 96 states and 

authorized tribes) to 21,600 (225 hours per year per state or authorized tribe × 96 states and 

authorized tribes) total hours per year. Using the average hourly wage rate of $49 (Exhibit 3-1), 

EPA estimates the total cost to range from approximately $211,000 ($49 per hour × 4,320 hours)

to $1,056,000 ($49 per hour × 21,600 hours). Exhibit 3-4 summarizes the incremental burden 

and cost associated with the requirement to submit an explanation for why the state or authorized 

tribe is not adopting new or revised criteria for parameters for which EPA published new or 

updated CWA section 304(a) criteria recommendations.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-7

Exhibit 3-4: Potential Annual Burden and Cost Associated with Documenting and 

Submitting Explanations for Not Adopting New or Revised Criteria for Parameters for 

Which EPA Has Published New or Updated CWA Section 304(a) Criteria 

Recommendations

Burden per State 

or Authorized 

Tribe

(hours/year)

1

Cost per State or 

Authorized Tribe

(2013 $/year)2

Number of 

Potentially 

Affected States 

and Authorized 

Tribes

Annual

Burden 

(hours/year)

3

Annual Cost

(2013 $/year)4

45-225 $2,200 - $11,000 96 4,320 – 21,600 $211,000 –

$1,056,000

1. Reflects potential incremental effort to document explanation for not adopting new or revised 

criteria for 50% of approximately 9 new or updated CWA section 304(a) criteria recommendations 

per year.

2. Hours per state or authorized tribe multiplied by average hourly wage of $49.

3. Burden per state or authorized tribe multiplied by total number of potentially affected states and 

authorized tribes.

4. Total annual burden for all potentially affected states and authorized tribes multiplied by average 

hourly wage of $49.

3.2.5 Antidegradation

Today’s rule could potentially result in incremental administrative burden and cost associated 

with the following activities related to antidegradation:

• Performing/evaluating more Tier 2 antidegradation reviews because more water bodies may 

be receiving Tier 2 protection.

• Performing/evaluating more extensive Tier 2 antidegradation reviews because they now must 

evaluate a range of non-degrading and less degrading practicable alternatives and select one 

such alternative for implementation.

• Involving the public when a state or authorized tribe uses the water body-by-water body 

approach to identify waters receiving Tier 2 antidegradation protection.

• Involving the public when developing or revising antidegradation implementation methods.

For the purposes of this analysis, EPA classified the potential incremental burden and cost

associated with the antidegradation provisions of today’s rule into the following categories:

• Recurring burden and cost associated with an increase in the number of Tier 2 

antidegradation reviews because states and authorized tribes that use the water body-bywater body approach can no longer deny Tier 2 protection solely because water quality does 

not exceed levels necessary to support all of the uses specified in CWA section 101(a)(2).

• Recurring burden and cost associated with more extensive Tier 2 antidegradation reviews 

that now must evaluate a range of non-degrading and less degrading practicable alternatives.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-8

• One-time burden and cost associated with providing the opportunity for public involvement

when deciding which waters will receive Tier 2 antidegradation protection when using a 

water body-by-water body approach.

• Recurring burden and cost associated with involving the public when developing or revising 

antidegradation implementation methods.

3.2.5.1 More Antidegradation Reviews Because More Waters are Receiving Tier 2 

Protection

EPA does not have data on the number of Tier 2 antidegradation reviews each state or authorized 

tribe performs or evaluates. For the purpose of this analysis, EPA estimates the number of 

antidegradation reviews for potentially affected states and authorized tribes by using the ratio of 

antidegradation reviews to total dischargers in two states for which EPA has information (Iowa 

and Missouri). For the proposal, EPA used data from 2008 suggesting that the Missouri 

Department of Natural Resources (MDNR) receives approximately 68 antidegradation reviews 

each year (MDNR, 2008), and the Iowa Department of Natural Resources (IDNR) receives 

approximately 104 to 164 antidegradation reviews each year (IDNR, 2008). More recently, 

MDNR estimates it receives approximately 47 antidegradation reviews each year (MDNR, 

2014), and IDNR estimates that it receives approximately 50 antidegradation reviews each year 

(IDNR, 2014).

EPA’s ICIS-NPDES database indicates that there are 3,305 individual NPDES-permitted 

dischargers for which MDNR is responsible for conducting potential Tier 2 antidegradation 

reviews (i.e. excluding dischargers on tribal land). Thus, the number of antidegradation reviews 

performed/evaluated by the state of Missouri is approximately 1% of the total number of 

NPDES-permitted dischargers each year (47 antidegradation reviews each year ÷ 3,305

individual NPDES-permitted dischargers × 100). EPA’s ICIS-NPDES database indicates that 

there are 1,626 individual NPDES-permitted dischargers for which IDNR is responsible for 

conducting potential Tier 2 antidegradation reviews. Thus, the number of antidegradation 

reviews performed/evaluated by the state of Iowa is approximately 3% (50 antidegradation 

reviews each year ÷ 1,626 individual NPDES-permitted dischargers × 100) of the total number 

of NPDES-permitted dischargers. On the basis of the information available from these two 

states, EPA estimates the number of antidegradation reviews each state or authorized tribe 

performs/evaluates is 2% of the total NPDES permitted dischargers there.

Of the 96 states and authorized tribes, EPA obtained sufficient information from 40 of them to 

identify whether or not they use a parameter-by-parameter approach or a water body-by-water 

body approach. Of those 40 states and authorized tribes, EPA identifies 18 of them as currently 

using a water body-by-water body approach that may exclude some waters from Tier 2 

protection solely because water quality does not exceed levels necessary to support all of the 

uses specified in CWA section 101(a)(2).

2 To estimate the number of additional Tier 2 

antidegradation reviews these 18 states and authorized may need to process, EPA obtained the 

number of NPDES permits issued in those states and authorized tribes. EPA’s ICIS-NPDES 

database indicates that there are a total of 38,232 individual NPDES-permitted dischargers in the

 

2 Additional states and authorized tribes exclude waters from Tier 2 protection based on the impairment of a group of parameters.

Since EPA’s assumption applies only to states and authorized tribes that exclude waters based on a single parameter, this 

assumption may underestimate burden and cost.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-9

40 states and authorized tribes with sufficient information to identify whether or not the state or 

authorized tribe uses a parameter-by-parameter approach or a water body-by-water body 

approach, and 19,594 NPDES permits in the 18 states and authorized tribes that currently use a 

water body-by-water body approach that may exclude some waters from Tier 2 protection solely 

because water quality does not exceed levels necessary to support all of the uses specified in 

CWA section 101(a)(2).

Of the 96 states and authorized tribes, EPA does not have sufficient information to identify 

whether or not the state or authorized tribe uses a parameter-by-parameter approach or a water 

body-by-water body approach for 56 of them (96 – 40). EPA estimates the number of additional 

Tier 2 antidegradation reviews for these 56 states and authorized tribes by applying the ratio of 

NPDES permits in states that EPA has sufficient information to make such a conclusion. For the 

40 states and authorized tribes with sufficient information, EPA estimates that 19,594 out of 

38,232 NPDES permits (or 51.3% of NPDES permits) are in states and authorized tribes that use 

a water body-by-water body approach and may exclude some waters from Tier 2 protection 

solely because water quality does not exceed levels necessary to support all of the uses specified 

in CWA section 101(a)(2). EPA’s ICIS-NPDES database indicates that there are 12,070

individual NPDES-permitted dischargers within the 56 states and authorized tribes without 

sufficient information. Assuming the same ratio of NPDES permits in these 56 states and 

authorized tribes, EPA estimates that 6,186 (12,070 × 51.3%) NPDES permits are located in

states and authorized tribes without sufficient information that currently use a water body-bywater body approach and exclude some waters from Tier 2 protection. Thus, EPA estimates that 

there are a total of 25,780 individual NPDES-permitted dischargers (19,594 + 6,186) in states 

and authorized tribes that currently use a water body-by-water body approach and exclude some 

waters from Tier 2 protection solely because water quality does not exceed levels necessary to 

support all of the uses specified in CWA section 101(a)(2).

Some states and authorized tribes that currently use a water body-by-water body approach and 

exclude some waters from Tier 2 protection may begin processing additional Tier 2 

antidegradation reviews. Other states and authorized tribes that use the water body-by-water

body approach may choose to continue denying Tier 2 protection to waters that do not exceed 

water quality levels necessary to support all of the uses specified in CWA section 101(a)(2) by 

evaluating other factors and involving the public on such decisions. For the purposes of this 

analysis, EPA assumes that approximately 50% of the time, states and authorized tribes will 

continue excluding Tier 2 protection to certain waters after evaluating other factors and obtaining 

public input on such decisions.

As discussed above, EPA estimates the annual number of Tier 2 antidegradation reviews a state 

or authorized tribe typically processes to be 2% of all NPDES permits there. Furthermore, EPA 

estimates that there are a total of 25,780 individual NPDES-permitted dischargers in states and 

authorized tribes that currently use a water body-by-water body approach and deny Tier 2 

antidegradation protection to a water body solely because water quality does not exceed levels 

necessary to support all of the uses specified in CWA section 101(a)(2). Finally, EPA assumes 

that approximately 50% of the time, states and authorized tribes will continue to deny Tier 2 

protection to waters solely because water quality does not exceed levels necessary to support all 

of the uses specified in CWA section 101(a)(2) after evaluating other factors and obtaining 

public input on such decisions. Thus, EPA estimates that the potentially affected states and 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-10

authorized tribes may need to process 258 (25,780 NPDES permits × 2% of NPDES permits × 

50% requiring Tier 2 reviews) additional Tier 2 antidegradation reviews.

For the proposed rule, EPA estimated that a single Tier 2 antidegradation review that does not 

perform/evaluate an alternatives analysis requires an average of approximately 100 to 150 labor 

hours. On the basis of stakeholder input, EPA revises its estimate of the labor hours needed to 

perform/evaluate a single Tier 2 antidegradation review that does not include an alternatives 

analysis to a range of 100 hours to 300 hours. For the purpose of this analysis, EPA continues to 

assume that a Tier 2 antidegradation review that includes analysis of pollution prevention 

alternatives requires approximately 30% more time than a Tier 2 review that does not include an 

analysis of pollution prevention alternatives. Thus, the incremental labor hours for each Tier 2 

antidegradation review is approximately 30 hours (100 hours  30%) to 90 hours (300 hours 

30%), resulting in the incremental labor hours to process each complete additional Tier 2 

antidegradation review (including an alternatives analysis) range from approximately 130 hours 

(100 hours + 30 hours) to 390 hours (300 hours + 90 hours). Hence, EPA estimates that the total 

incremental labor hours for all affected states and authorized tribes could range from 33,540 

hours (130 hours × 258 reviews) to 100,620 hours (390 hours × 258 reviews) per year. Assuming 

an estimated average hourly wage rate of $49, EPA estimates a per review cost of $6,400 ($49 

per hour × 130 hours per review) to $19,100 ($49 per hour × 390 hours per review). Thus, total 

incremental cost could range from approximately $1,651,000 ($6,400 per review × 258 reviews) 

to $4,928,000 ($19,100 per review × 258 reviews).

Exhibit 3-5 summarizes the potential incremental annual burden and cost associated with 

performing/evaluating additional Tier 2 antidegradation reviews.

Exhibit 3-5: Potential Incremental Annual Burden and Cost Associated with 

Performing/Evaluating Additional Tier 2 Antidegradation Reviews.

Number of 

Dischargers1

Potential Number of 

Tier 2 

Antidegradation

Reviews2

Annual Burden 

(hours/year)3

Annual Cost

(2013 $/year)4

25,780 258 33,540 - 100,620 $1,651,000 - $4,928,000

1. Based on data from EPA’s ICIS-NPDES.

2. Represents 2% of total number of dischargers multiplied by 50%.

3. Number of Tier 2 antidegradation reviews in each affected state and authorized tribe multiplied by 

potential per review burden of 130 to 390 hours, and summing across all affected states and 

authorized tribes.

4. Total annual burden for all potentially affected states and authorized tribes multiplied by average 

hourly wage of $49.

3.2.5.2 More Extensive Tier 2 Antidegradation Reviews

For the purpose of this analysis, EPA assumes that all states and authorized tribes already 

perform/evaluate Tier 2 antidegradation reviews in those waters the state or authorized tribe 

deems requiring Tier 2 protection. However, today’s rule may incrementally increase the level of 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-11

effort needed to process each Tier 2 antidegradation review because the Tier 2 antidegradation 

review must now evaluate a range of non-degrading and less degrading practicable alternatives.

Estimating the total burden and cost associated with performing/evaluating more extensive Tier 2 

antidegradation reviews requires an estimate of the total number of Tier 2 antidegradation 

reviews in potentially affected states and authorized tribes. EPA estimates the number of more 

extensive antidegradation reviews using the same method EPA uses to estimate the number of 

Tier 2 antidegradation reviews in Section 3.2.5.1. EPA obtained sufficient information to 

estimate whether or not 40 states and authorized tribes (with a total of 41,618 individual NPDESpermitted dischargers) do or do not evaluate a range of non-degrading and less degrading 

practicable alternatives. Of these 40 states and authorized tribes, EPA estimates that 19 of them

do not evaluate a range of non-degrading and less degrading practicable alternatives. These 19 

states and authorized tribes have 19,059 NPDES-permitted dischargers.

Of the 96 states and authorized tribes, EPA does not have sufficient information to identify 

whether or not 56 of them (96 – 40) evaluate a range of non-degrading and less degrading 

practicable alternatives. EPA estimates the number of Tier 2 antidegradation reviews that will 

begin evaluating a range of non-degrading and less degrading practicable alternatives in these 56 

states and authorized tribes by applying the ratio of NPDES permits in states that EPA has 

sufficient information to make such a conclusion. For the 40 states and authorized tribes with 

sufficient information, EPA estimates that 19,059 out of 41,618 NPDES permits (or 45.8% of 

NPDES permits) are in states and authorized tribes that do not evaluate a range of non-degrading 

and less degrading practicable alternatives. The 56 states and authorized tribes for which EPA 

does not have sufficient information to identify if they will need to begin evaluating a range of 

non-degrading and less degrading practicable alternatives have 8,684 individual NPDESpermitted dischargers. Thus, in states and authorized tribes for which EPA has insufficient 

information to identify if they will need to begin evaluating a range of non-degrading and less 

degrading practicable alternatives, EPA estimates there are 3,977 dischargers (45.8% × 8,684

NPDES permits). Thus, EPA estimates a total of 23,036 individual NPDES-permitted 

dischargers (19,059 + 3,977) in states and authorized tribes that will need to begin evaluating a 

range of non-degrading and less degrading practicable alternatives.

EPA previously estimated the labor hours required to process a single Tier 2 antidegradation 

review that does not include an alternatives analysis to range from 100 hours to 300 hours, and 

that including an alternatives analysis could require approximately 30 to 90 additional labor 

hours. Using the same ratio of Tier 2 antidegradation reviews each year to total NPDES 

permitted dischargers that was used in Section 3.2.5.1 (2%), EPA estimates that states and 

authorized tribes will process 461 Tier 2 antidegradation reviews that will need to begin 

evaluating a range of non-degrading and less degrading practicable alternatives (23,036 NPDES 

permits in affected states and authorized tribes × 2% of NPDES permits). EPA estimates the total 

labor hours associated with this activity ranges from 13,830 hours (461 Tier 2 antidegradation 

reviews per year × 30 hours per review) to 41,490 hours (461 Tier 2 antidegradation reviews per

year × 90 hours per review). Using the average hourly wage rate of $49 (Exhibit 3-1), EPA 

estimates the total incremental cost ranges from approximately $692,000 (13,830 hours × $49 

per hour) to $2,028,000 (41,490 hours × $49 per hour).

Exhibit 3-6 summarizes the potential incremental annual burden and cost associated with more 

extensive Tier 2 antidegradation reviews.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-12

Exhibit 3-6: Potential Annual Burden and Cost Associated With More Extensive Tier 2 

Antidegradation Reviews

Total Number of 

Dischargers in All Affected 

States and Authorized 

Tribes1

Potential Number of 

Tier 2 

antidegradation

Reviews2

Annual Burden 

(hours/year)3

Annual Cost 

(2013 $/year)4

23,036 461 13,830 - 41,490 $692,000 - $2,028,000

1. Based on data from EPA’s ICIS-NPDES database.

2. Represents 2% of the total number of dischargers in each affected state or authorized tribe.

3. Number of Tier 2 antidegradation reviews in each affected state and tribe multiplied by potential 

per review burden of 30 to 90 hours and summing across all affected states and authorized tribes.

4. Total annual burden for all potentially affected states and authorized tribes multiplied by average 

hourly wage of $49.

3.2.5.3 Public Involvement – Deciding Which Waters Will Receive Tier 2 Antidegradation 

Protection When Using a Water Body-By-Water Body Approach

Today’s rule specifies that where the state or authorized tribe identifies waters for 

antidegradation protection on a water body-by-water body basis, the state or authorized tribe 

shall provide an opportunity for public involvement on any decisions about whether Tier 2 

antidegradation protections will be afforded to a water body and the factors considered when 

making those decisions. For the purpose of this analysis, EPA assumes that those states and 

authorized tribes that currently identify waters for Tier 2 protection on a parameter-by-parameter 

basis already fulfill the public participation requirement of today’s rule because any Tier 2 

antidegradation review in those states and authorized tribes already includes a public process in 

association with NPDES permit issuance or reissuance. EPA also makes the conservative 

assumption (likely to overestimate costs) that states and authorized tribes that currently use a 

water body-by-water body approach do not currently involve the public when deciding which 

waters will receive Tier 2 antidegradation protection. EPA further assumes that such a decisionmaking process will occur as a single effort for all waters of the state or authorized tribe. Once a 

state or authorized tribe designates the waters to which Tier 2 protection applies, EPA assumes 

that the state or authorized tribe does not incur further incremental burden or cost associated with 

revising those designations because such revisions will likely occur in association with NPDES 

permit issuance or reissuance that already involves a public process.

EPA estimates the effort needed to involve the public (i.e., solicit comments, document the 

comments, and review, deliberate, and respond to comments) when deciding which water bodies 

receive Tier 2 antidegradation protection is approximately 30% of the effort required for a WQS 

rulemaking as described in Section 3.2.1. Thus, EPA estimates the labor hours associated with 

each occurrence of providing an opportunity for public involvement on decisions about which 

water bodies receive Tier 2 antidegradation protections and the factors considered when making 

those decisions range from 150 hours (500 hours × 30%) to 300 hours (1,000 hours × 30%). 

After reviewing all available state and authorized tribal antidegradation policies and 

implementation methods, EPA concludes it has sufficient information to identify whether or not 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-13

40 states and authorized tribes that use the water body-by-water body method provide an 

opportunity for public involvement on decisions about Tier 2 antidegradation protection in a 

manner that is consistent with today’s rule. Of those 40 states and authorized tribes, 18 of them

may need to begin providing an opportunity for public involvement on decisions about Tier 2 

antidegradation protection.

EPA does not have sufficient information to identify whether or not 56 states and authorized 

tribes may need to begin providing an opportunity for public involvement (96 states and 

authorized tribes – 40 states and authorized tribes with sufficient information). Of the 56 states 

and authorized tribes without sufficient information, EPA estimates the number of them that may 

need to begin providing an opportunity for public involvement by applying the ratio of the 

number of states and authorized tribes with sufficient information to make such a conclusion. As 

described above for the 40 states and authorized tribes with sufficient information, EPA 

estimates 18 of them (45%) do not provide an opportunity for public involvement and may need 

to begin doing so. Applying this ratio to the 56 states and authorized tribes without sufficient 

information results in 25 additional states and authorized tribes that may not currently provide an 

opportunity for public involvement and may need to begin doing so. Thus EPA estimates a total 

of 43 (18 + 25) states and authorized tribes may need to begin providing an opportunity for 

public involvement.

EPA estimates one-time incremental labor hours range from approximately 6,450 hours (150 

hours per state or authorized tribe × 43 states and authorized tribes) to 12,900 hours (300 hours 

per state or authorized tribe × 43 states and authorized tribes). Using the estimated average 

hourly wage rate of $49 (Exhibit 3-1), EPA estimates the total one-time incremental cost 

associated with involving the public when deciding which waters will receive Tier 2 

antidegradation protection could range from approximately $318,000 (6,450 hours × $49 per 

hour) to $632,000 (12,900 hours × $49 per hour). Exhibit 3-7 summarizes the incremental 

burden and cost associated with providing an opportunity for public involvement on decisions 

about whether Tier 2 antidegradation protections will be afforded and the factors considered 

when making those decisions. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-14

Exhibit 3-7: Potential Annual Burden and Cost Associated with Public Involvement When 

Deciding Which Waters Will Receive Tier 2 Antidegradation Protection

Burden per 

Effort

(hours)1

Cost per 

Effort2

Number of 

Potentially 

Affected States 

and Authorized 

Tribes3

Total Burden 

(hours)4

Total Cost 

(2013 $; onetime)5

Annualized 

Cost 

(2013 $/year)6

150 - 300 $7,400 -

$14,700 43 6,450 – 12,900 $318,000 -$632,000

$21,400 -

$42,500

1. Reflects potential public involvement for determining the level of antidegradation protection 

afforded to all waters.

2. Hours per state or authorized tribe multiplied by average hourly wage of $49.

3. EPA estimates that 43 states and authorized tribes currently use the water body-by-water body 

approach.

4. Burden per state or authorized tribe multiplied by total number of potentially affected states and 

authorized tribes.

5. Total burden for all potentially affected states and authorized tribes multiplied by average hourly 

wage of $49.

6. Although EPA expects states and authorized tribes to incur rulemaking cost over an initial threeyear period, it annualized total one-time cost at a 3% discount rate over 20 years for comparative 

purposes.

3.2.5.4 Public Involvement – Developing or Revising Implementation Methods 

Today’s rule could potentially lead to incremental burden and cost associated with requiring 

states’ and authorized tribes’ antidegradation implementation methods (whether or not those 

methods are adopted into state or tribal rule) to be consistent with their antidegradation policies 

and with § 131.12(a). Burden and costs could also be associated with the requirement for states 

and authorized tribes to provide an opportunity for public involvement during the development 

and any subsequent revisions of antidegradation implementation methods, and to make the 

methods available to the public. 

If a state or authorized tribe adopts antidegradation implementation methods as part of its WQS 

or other legally binding provisions, the state’s or authorized tribe’s own public participation 

requirements and 40 CFR Part 25 and § 131.20(b) of the federal regulation, will satisfy this 

requirement and there is no incremental burden or cost. For states and authorized tribes that do 

not adopt antidegradation implementation methods as part of their WQS or other legally binding 

provisions, there may be incremental burden and cost associated with providing an opportunity 

for public involvement. States and authorized tribes can use various mechanisms to provide such 

opportunities, including a public hearing, a public meeting, a public workshop, and different 

ways of engaging the public via the Internet, such as webinars and website postings.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-15

On the basis of stakeholder input, EPA estimates that involving the public when developing or 

revising antidegradation methods requires between 150 and 300 labor hours. EPA estimates that 

states and authorized tribes will develop and/or revise their antidegradation implementation 

methods no more often than once every ten years. Using the average hourly wage rate of $49 

(Exhibit 3-1), EPA estimates the cost of involving the public for a single state or authorized tribe 

that does not already adopt their implementation methods as legally binding WQS could range 

from approximately $700 ($49 per hour × 150 hours per occurrence ÷ 10 years per occurrence) 

to $1,500 ($49 per hour × 300 hours per occurrence ÷ 10 years per occurrence) per year.

Estimating the total incremental burden and cost for all affected states and authorized tribes 

requires knowledge of the number of states and authorized tribes that do not already conduct a 

public process in association with developing or revising their antidegradation implementation 

methods. For the purpose of this analysis, EPA assumes that those states and authorized tribes 

that do not already have antidegradation implementation methods in legally binding WQS do not 

provide the opportunity for public involvement when developing or revising their 

antidegradation methods.

After reviewing available state and authorized tribal antidegradation policies and implementation 

methods, EPA obtained sufficient information to identify whether or not 27 states and authorized 

tribes may need to develop or revise antidegradation implementation methods that are not 

currently adopted as WQS. Of these 27 states and authorized tribes, EPA concludes that 12 of 

them will likely need to develop or revise their antidegradation methods.

Of the 96 states and authorized tribes, EPA does not have sufficient information to conclude

whether or not 69 of them (96 states and authorized tribes – 27 states and authorized tribes with 

sufficient information) may need to develop or revise antidegradation implementation methods 

that are not currently adopted as WQS. EPA estimates the number of these states and authorized 

tribes by applying the ratio of the number of states and authorized tribes with sufficient 

information to make such a conclusion. As described above, EPA estimates 12 out of 27 states 

and authorized tribes (44%) may need to develop or revise antidegradation implementation 

methods that are not currently adopted as WQS. Applying this ratio to the 69 states and 

authorized tribes without sufficient information results in 31 additional states and authorized 

tribes that may need to develop or revise antidegradation implementation methods that are not 

currently adopted as WQS. Thus EPA estimates a total of 43 (12 + 31) states and authorized 

tribes may need to develop or revise antidegradation implementation methods that are not 

currently adopted as WQS.

EPA estimates the number of total labor hours required to involve the public in developing or 

revising antidegradation implementation methods range from 645 hours (150 hours × 43 states 

and authorized tribes ÷ 10 years per occurrence) to 1,290 hours (300 hours per occurrence × 43 

states and authorized tribes ÷ 10 years per occurrence) per year. Using the average hourly wage 

rate of $49 (Exhibit 3-1), the total cost of involving the public in developing or revising 

antidegradation implementation methods could range from approximately $30,000 ($49 per hour 

× 645 hours) to $65,000 ($49 per hour × 1,290 hours) per year. This cost may be lower if a state 

or authorized tribe decides to formally adopt implementation methods into WQS or otherwise 

already complies with the public participation requirement of today’s rule. Exhibit 3-8 

summarizes the incremental burden and cost associated with involving the public in developing 

or revising antidegradation implementation methods.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-16

Exhibit 3-8: Potential Annual Burden and Cost Associated with Public Involvement for 

Developing or Revising Antidegradation Implementation Methods

Burden per 

Effort (hours)1

Annual Cost 

per State or 

Authorized 

Tribe2

Number of Potentially 

Affected States and 

Authorized Tribes3

Total Annual 

Burden (hours)4

Total Annual 

Cost (2013

$/year)

5

150-300 $700 - $1,500 43 645 – 1,290 $30,000 - $65,000

1. Reflects potential incremental effort for public involvement in developing or revising 

antidegradation implementation methods.

2. Hours per state or authorized tribe multiplied by average hourly wage of $49 and divided by 10 

years.

3. EPA estimates that there are 43 states and authorized tribes that do not have antidegradation 

implementation methods adopted into WQS.

4. Burden per effort multiplied by total number of potentially affected states and authorized tribes 

and divided by 10 years.

5. Total annual burden for all potentially affected states and authorized tribes multiplied by average 

hourly wage of $49.

3.2.6 WQS Variances 

EPA identifies two requirements in today’s rule that could potentially result in incremental 

burden and cost associated with WQS variances:

• Today’s rule specifies the documentation a state or authorized tribe must submit to EPA

when requesting EPA review and approval of a WQS variance. Some states and authorized 

tribes may not currently provide such documentation and may incur incremental burden and 

cost associated with providing this documentation.

• Today’s rule requires a state or authorized tribe to reevaluate WQS variances with a term 

longer than 5 years no less frequently than every five years. Some states and authorized tribes

may not be reevaluating WQS variances as required by today’s rule and may need to begin

doing so.

3.2.6.1 Submission Requirements

A state or authorized tribe may incur incremental burden and cost associated with developing the 

required documentation for a WQS variance if it does not already do so. For the proposed rule, 

EPA estimated that developing and documenting a single WQS variance previously required, on 

average, 125 to 150 labor hours, and that each state or authorized tribe will adopt approximately 

3 WQS variances each year. After receiving stakeholder input, EPA revises its estimate to 125 to 

300 labor hours to develop and document a single WQS variance and adoption of approximately 

10 WQS variances per year.

EPA further estimates that if a state or authorized tribes has not fulfilled the WQS variance 

documentation requirements specified in today’s rule, doing so could increase the labor hours 

approximately 25%. Thus, EPA estimates the potential incremental burden associated with 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-17

fulfilling the WQS variance documentation requirements could range from approximately 31 

hours (125 hours × 25%) to 75 hours (300 hours × 25%) for each WQS variance.

A state or authorized tribe typically reviews a discharger-specific WQS variance request by a 

NPDES permittee, adopts the WQS variance into their WQS, and then submits the WQS 

variance and supporting documentation to EPA for review and approval or disapproval. For the 

purpose of this analysis, EPA assumes that all 96 states and authorized tribes currently do not 

fulfill all of the submission requirements specified in today’s rule. Thus, EPA estimates the total 

incremental labor hours associated with the documentation requirements for WQS variances 

range from 29,760 hours per year (31 additional hours per WQS variance × 10 WQS variances 

per year × 96 states and authorized tribes) to 72,000 hours per year (75 additional hours per 

WQS variance × 10 WQS variances per year × 96 states and authorized tribes). Using EPA’s 

estimated average hourly wage rate of $49 (Exhibit 3-1), total incremental cost could range from 

$1,459,000 per year (29,760 additional hours per year  $49 per hour) to $3,533,000

(72,000 additional hours per year  $49 per hour). Exhibit 3-9 summarizes the potential 

incremental annual burden and cost associated with additional documentation requirements for 

WQS variance submissions.

Exhibit 3-9: Potential Annual Burden and Cost Associated with Additional 

Documentation Requirements for WQS Variance Submissions

Burden per State 

or Authorized 

Tribe (hours/year)

1

Cost per State or 

Authorized 

Tribe

(2013 $/year)2

Number of 

Potentially 

Affected States 

and Authorized 

Tribes

Annual

Burden 

(hours/year)

3

Annual Cost

(2013 $/year)4

31 - 75 $15,200 –

$36,800 96 29,760 –72,000

$1,459,000 –

$3,533,000

1. Assuming states and authorized tribes adopt 10 WQS variances per year.

2. Hours per state or authorized tribe per year multiplied by average hourly wage of $49.

3. Burden per state or authorized tribe per year multiplied by total number of potentially affected 

states and authorized tribes.

4. Total annual burden for all potentially affected states and authorized tribes multiplied by average 

hourly wage of $49.

3.2.6.2 Reevaluations

For the purpose of this analysis, EPA assumes that states and authorized tribes will reevaluate 

WQS variances either every 3 years during their triennial review or every 5 years during permit 

reissuance. Although EPA expects the term of WQS variances to vary widely from a few years 

to significantly more than 10 years, for the purpose of this analysis, EPA assumes an average

WQS variance term of 10 years. An average WQS variance term of 10 years is a reasonable 

estimate because it is consistent with a log distribution of WQS variance terms reflecting the 

likely scenario that most WQS variances will have relatively short terms and fewer WQS 

variances will have long terms. EPA estimates the labor hours needed to reevaluate a WQS 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-18

variance is approximately 15% of the labor hours needed to process a new WQS variance 

application that fulfills the initial submission requirements of today’s rule.

Today’s rule provides for a state or authorized tribe to specify the schedule of reevaluations so 

long as they occur no less frequently than every 5 years. EPA expects some states and authorized 

tribes to synchronize reevaluations to permit-reissuance while other states and authorized tribes

may synchronize reevaluations to the triennial review. EPA estimates one reevaluation per WQS 

variance per year if a state or authorized tribe chooses to synchronize reevaluations to permit 

reissuance, and 3 reevaluations per WQS variance per year if a state or authorized tribe chooses 

to synchronize reevaluations to the triennial review. Thus, the average number of reevaluations 

for each state or authorized tribe could range from 10 reevaluations per year (1 reevaluation per 

WQS variance per year × 10 WQS variances per year) to 30 reevaluations per year (3 

reevaluations per WQS variance per year × 10 WQS variances per year). Using the previous 

estimates of labors hours required to process a WQS variance that does not include all 

submission requirements in Section 3.2.6.1 (125 to 300 hours) and the additional labor hours 

required to fulfill those submission requirements (31 to 75 hours), EPA estimates that the labor 

hours to submit a complete WQS variance to EPA for review and approval or disapproval could

range from 156 hours (125 hours + 31 hours) to 375 hours (300 hours + 75 hours). EPA

estimates that the labor hours needed to conduct a reevaluation of a WQS variance are 

approximately 15% of the labor hours needed to process a new WQS variance. Thus, EPA

estimates that the incremental labor hours associated with revaluating each WQS variance could 

range from 23 hours (156 hours × 15%) to 56 hours (375 hours × 15%).

For the purpose of this analysis, EPA makes the conservative assumption (likely to overestimate

the cost) that all 96 states and authorized tribes will adopt and submit to EPA 10 WQS variances 

each year. EPA estimates the total incremental labor hours associated with reevaluating WQS 

variances ranges from approximately 22,080 hours per year (23 hours per WQS variance × 1

reevaluations per WQS variance per year × 10 WQS variances per state or authorized tribe per 

year × 96 states and authorized tribes) to 161,280 hours per year (56 hours per WQS 

variance × 3 reevaluations per WQS variance per year × 10 WQS variances per state or 

authorized tribe per year × 96 states and authorized tribes). Multiplying these estimated labor 

hours by EPA’s estimated average hourly wage rate of $49 (Exhibit 3-1) results in an estimated 

total incremental cost of approximately $1,085,000 to $7,901,000.

Exhibit 3-10 summarizes the potential incremental annual burden and cost associated with 

today’s rule requiring reevaluation of a WQS variance with a term longer than 5 years no less 

frequently than every 5 years.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-19

Exhibit 3-10: Potential Annual Burden and Cost Associated with Reevaluating WQS 

Variances

Burden per State 

or Authorized 

Tribe (hours/year)

1

Cost per State or 

Authorized 

Tribe

(2013 $/year)2

Number of 

Potentially 

Affected States 

and Authorized 

Tribes

Annual Burden 

(hours/year)

3

Annual Cost

(2013 $/year)4

230 – 1,680 $11,300 –

$82,300 96 22,080 – 161,280 $1,085,000 –$7,901,000

1. Assuming states and authorized tribes adopt 10 WQS variances per year and that states and 

authorized tribes will reevaluate each WQS variance 1 to 3 times prior to expiration depending on 

the reevaluation cycle (e.g., permit cycle or triennial review).

2. Hours per state or authorized tribe per year multiplied by average hourly wage of $49.

3. Burden per state or authorized tribe per year multiplied by total number of potentially affected 

states and authorized tribes.

4. Total annual burden for all potentially affected states and authorized tribes multiplied by average 

hourly wage of $49.

3.2.7 Compliance Schedules Authorizing Provisions

Today’s rule requires that if a state or authorized tribe intends to authorize the use of compliance 

schedules for WQBELs in NPDES permits, it must first adopt a permit compliance schedule 

authorizing provision. The authorizing provision must be consistent with the CWA and is subject 

to EPA review and approval as a WQS. Section 3.2.1 accounts for the incremental burden and 

cost associated with adoption of such a provision as a part of state or authorized tribal 

rulemaking burden and cost.

3.2.8 Summary of Estimated Burden and Cost to States and Authorized Tribes

Exhibit 3-11 provides a summary of the estimated national cost to all states and authorized tribes. 

The cost associated with designated uses, triennial reviews, more and/or more extensive 

antidegradation reviews, involving the public when developing or revising antidegradation 

methods, and WQS variances are annual costs. Costs associated with WQS rulemaking activities 

and public involvement when deciding which water bodies will receive Tier 2 antidegradation 

protection occur once but are annualized for comparative purposes.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-20

Exhibit 3-11: Summary of Potential Incremental Burden and Cost to States and 

Authorized Tribes

Provision

One-time Activities Annual Activities

Burden 

(hours)

Total Cost 

(2013$ 

millions)

Annualized

Cost (2013 $ 

million/year)1

Burden 

(hours/year)

Annual Cost 

(2013 $ 

million/year)

Rulemaking 

Activities

48,000 -

96,000 $2.35 - $4.70 $0.16 - $0.32 -- --

Designated Uses -- -- -- 2,250 - 4,500 $0.11 - $0.22

Triennial Review -- -- -- 4,320 –

21,600 $0.21 - $1.06

Antidegradation 6,450 -

12,900 $0.32 - $0.63 $0.02 - $0.04 48,015 -143,400 $2.37 - $7.02 

WQS Variances -- -- -- 51,840 -

233,280 $2.54 - $11.43

National Total 54,450 -

108,900 $2.67 - $5.34 $0.18 - $0.36 106,425 -402,780 $5.24 - $19.73 

‘--‘ = not applicable

Note: Individual annual cost estimates do not add to total because of independent rounding.

1. Although EPA expects the one-time rulemaking activity cost to be incurred over an initial threeyear period, it annualized the cost at a 3% discount rate over 20 years for comparative purposes.

3.3 Estimated Burden and Cost to the Agency

In addition to the potential burden and cost to states and authorized tribes, the WQS regulation 

revisions may be potentially associated with incremental burden and cost to EPA. These 

incremental burden and cost to EPA are associated with the potential increase in workload to 

review the additional WQS program materials submitted by states and authorized tribes because

of the WQS regulation revisions. Based on best professional judgment, EPA conservatively 

estimates (likely overestimating the cost) the incremental burden and cost to EPA assuming the 

cost is approximately 20% of the cost to states and authorized tribes. Thus, EPA estimates that 

the one-time incremental cost to the Agency ranges from $534,000 ($2,670,000× 20%) to 

$1,067,000 ($5,336,000× 20%), and estimated annual incremental cost to EPA ranges from 

$1,048,000 ($5,239,000× 20%) to $3,946,000 ($19,732,000 × 20%).

EPA assumes that EPA staff reviewing WQS program materials are General Schedule (GS) 13, 

Step 5 federal employees (including EPA regional staff). In 2013, the average hourly wage rate 

for all federal employees at this grade and step was $47.13 per hour (U.S. Office of Personnel 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-21

Management 2013).

3 Assuming that benefits and overhead are equal to 60% of the hourly wage, 

the average loaded hourly wage rate for federal employees is equal to $75.41 ($47.13 per hour + 

(60% × ($47.13 per hour)). Full-time equivalent (FTE) employees work 2,080 hours per year (40 

hours per week × 52 weeks).

Using the average loaded wage rate and the number of hours worked per FTE, EPA estimates the 

number of labor hours and EPA FTEs associated with the increased workload under the WQS 

regulation revisions. Estimated one-time incremental labor hours to EPA ranges from 7,080 

hours ($534,000÷ $75.41 per hour) to 14,150 hours ($1,067,000 ÷ $75.41 per hour). These onetime incremental labor hours estimates correspond to 3.4 FTEs (7,010 hours ÷ 2,080 hours 

worked per FTE per year) to 6.8 FTEs (14,150 hours ÷ 2,080 hours worked per FTE per year).

Estimated annual incremental burden to EPA ranges from 13,900 hours per year 

($1,048,000 ÷ $75.41 per hour) to 52,320 hours per year ($3,946,000÷ $75.41 per hour). These 

annual incremental burden estimates correspond to 6.7 FTEs per year (13,880 burden hours ÷ 

2,080 hours worked per FTE per year) to 25.2 FTEs per year (52,310 burden hours ÷ 2,080 hours 

worked per FTE per year).

Exhibit 3-12 summarizes the potential incremental annual burden and cost to the Agency 

associated with the WQS regulation revisions.

Exhibit 3-12: Summary of Potential Incremental Burden and Cost to the Agency

One-time Recurring

Cost to the 

Agency

(2013$ 

million)

1

Annualized 

Cost to the 

Agency 

(2013$ million 

per year)2

Burden Cost to the 

Agency (2013$ 

million per 

year)

1

Burden

Hours3 FTEs4 Hours per 

year3

FTEs per 

year4

$0.53 - $1.07 $0.04 - $0.07 7,080 -

14,150 3.4 - 6.8 $1.05 - $3.95 13,900 -52,320 6.7 - 25.2

1. Assuming that the incremental burden and cost to EPA are equal to 20% of the burden and cost

to states and authorized tribes.

2. Although EPA expects this one-time cost to be incurred over an initial three-year period, the cost

is annualized at 3% discount rate over 20 years for comparative purposes.

3. Total cost to the Agency divided by hourly wage rate ($75.41 per hour).

4. Burden hours to the Agency divided by hours worked by full-time equivalent (FTE) employees 

per year (2,080 hours per year).

 

3 The employees reviewing and approving WQS materials submitted by states and authorized tribes include EPA staff in the 

Washington, DC area and EPA regional staff. Hence, EPA calculates the average of all locality wage rates for federal 

employees at GS 13, Step 5 in 2013.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-22

3.4 Summary of Potential Burden and Cost

Exhibit 3-13 provides a summary of the estimated cost to all potentially affected states and 

authorized tribes, and to EPA. To obtain a total cost estimate that accounts for both one-time and 

recurring cost, EPA chose a period for analysis, calculated the cost for each year within that 

period, calculated the present value of the cost, and then estimated a total annualized cost. The 

cost of today’s rule is the same in each year after the first year. Therefore, EPA chose a 20-year

period because 20 years extends past the time when the cost has reached a steady state and for 

which it is reasonable to project into the future. Note that this period may result in an 

overestimation of the total cost because most of the one-time cost will probably have already 

occurred before 20 years. Using a 20-year period of analysis and a discount rate of 3%, the net 

present value of the cost associated with today’s rule ranges from $96.78 million to $358.70

million, while the total annualized cost ranges from $6.51 million to $24.11 million.

Exhibit 3-13: Summary of Potential Incremental Burden and Cost to States, Authorized 

Tribes, and the Agency

One-time Activities Annual Activities

Burden 

(hours)

Cost (2013$ 

million)

Annualized

Cost (2013$ 

million/year)1

Burden 

(hours/year)

Annual Cost 

(2013$ 

million/year)

States and 

Authorized 

Tribes

54,450 -

108,900 $2.67 - $5.34 $0.18 - $0.36 106,425 -402,780 $5.24 - $19.73 

Agency 7,080 -

14,150 $0.53 - $1.07 $0.04 - $0.07 13,900 -52,320 $1.05 - $3.95 

Total2 61,530 -

123,050 $3.20 - $6.40 $0.22 - $0.43 120,325 -455,100 $6.29 - $23.68

Note: Individual annual cost estimates do not add to total because of independent rounding.

1. Although EPA expects states and authorized tribes to incur a rulemaking cost over an initial 

three-year period, it annualized the one-time cost at a 3% discount rate over 20 years for 

comparative purposes.

2. The net present value of the total cost over a 20-year period (using a 3% discount rate) ranges 

from $96.78 million to $358.70 million, while the total annualized cost ranges from $6.51 million 

to $24.11 million.

3.5 Limitations and Uncertainties

There are limited data available to estimate the potential burden and cost associated with the 

regulatory revisions. This section discusses the quality of the data and information underlying the 

estimates, limitations on the data use, and quality assurance and quality control activities that 

EPA performed to support the economic analysis.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-23

3.5.1 Key Assumptions

EPA used best professional judgment to develop estimates of potential burden. As such, there is 

substantial uncertainty surrounding these estimates. EPA acknowledges this uncertainty, which 

could result in under or overestimates of incremental burden.

For some estimates, EPA estimated burden based on the number of permitted dischargers 

reported in ICIS-NPDES. EPA designed this system for tracking permitted dischargers. As such, 

the estimates from this source are the best estimates available.

EPA used federal data sources to estimate the cost of the incremental burden. The federal 

agencies that develop these data do so specifically for tracking the cost of labor. As such, the 

estimates from these sources are the best estimates available. Uncertainties relate to the labor 

categories and mix of categories. Additionally, data are not available for tribes. EPA’s use of an

average based on four different occupation categories may over- or underestimate the actual cost.

Exhibit 3-14 documents additional assumptions that EPA made in developing the estimates, 

notes the likely direction of impact of the assumption on the estimates, and provides additional 

information for evaluating the strength of each assumption.

Exhibit 3-14: Uncertainties in the Analysis

Key Assumption/Uncertainty

Potential Impact 

on Estimated 

Burden and Cost

Comment

Labor hours required to implement 

various provisions based on best 

professional judgment.

?

Labor hours needed depend on a 

number of factors including state and 

authorized tribe sizes, level of 

economic activity involving 

dischargers to water, as well as existing 

regulatory framework and may be 

higher or lower than EPA’s estimates. 

The estimates do not account for 

potential reductions in burden 

resulting from the increased clarity 

provided by today’s rule.

Number of states and authorized 

tribes affected by each provision is 

uncertain.

?

Actual number of states and 

authorized tribes that will incur costs 

could be higher or lower than EPA

estimates.

Labor cost based on state 

government wage rates.

?

The mix of labor categories (e.g., 

environmental scientist, engineer, etc.) 

may be different for individual states 

from the mix that EPA used to 

calculate a wage rate. Also, labor cost

for authorized tribes and territories 

may differ from states.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-24

Exhibit 3-14: Uncertainties in the Analysis

Key Assumption/Uncertainty

Potential Impact 

on Estimated 

Burden and Cost

Comment

States and authorized tribes are not 

currently documenting their reasons 

for not adopting new or revised 

criteria during the triennial review 

process for parameters for which 

EPA published new or updated 

CWA section 304(a) criteria 

recommendations.

+

The cost may be overestimated 

because the WQS regulation already 

requires states and authorized tribes to 

submit the results of their triennial 

review to EPA. If this submission 

includes explanation as to why new or 

revised criteria are not adopted for 

parameters for which EPA published 

new or updated CWA section 304(a) 

criteria recommendations, the cost

could be lower.

States and authorized tribes do not

currently involve the public in 

antidegradation determinations or in 

the development of their 

implementation methods.

+

The cost may be overestimated for 

states and authorized tribes that 

already solicit public involvement in 

accordance with the WQS regulation 

revisions.

States or tribes do not reevaluate

WQS variances at regular intervals. +

The costs may be overestimated for 

states and authorized tribes that 

reevaluate WQS variance at least every 

5 years in accordance with the WQS 

regulation revisions.

All states and authorized tribes

undertake a rulemaking effort in 

response to today’s rule.

+

The cost may be overestimated 

because states and authorized tribes

that already have policies and methods 

consistent with today’s rule do not 

incur an incremental cost.

The number of Tier 2 

antidegradation reviews per year is

based on information from two 

states (Iowa and Missouri).

?

The actual number of Tier 2 

antidegradation reviews per state or 

authorized tribe may be higher or 

lower than EPA’s estimates.

WQS variances last for 10 years. ?

The number of reevaluations per WQS 

variance depends, in part, on the 

duration of the WQS variance. Shorter 

WQS variance periods result in fewer 

reevaluations and vice versa.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 3. Potential Incremental Costs and Burden 3-25

Exhibit 3-14: Uncertainties in the Analysis

Key Assumption/Uncertainty

Potential Impact 

on Estimated 

Burden and Cost

Comment

States and authorized tribes may be 

required to undertake activities 

related to today’s rule that EPA has 

not identified in this analysis.

–

The cost may be underestimated 

because EPA has not identified all the 

relevant activities states and authorized 

tribes may need to perform as a result 

of today’s rule.

Incremental cost to the Agency are 

equal to 20% of the cost to states 

and authorized tribes.

+

The cost may be overestimated 

because the estimated burden on the 

Agency to review and approve WQS 

materials submitted by states and 

authorized tribe may be too high.

Key:

“+” = Burden and cost potentially overestimated

“-“ = Burden and cost potentially underestimated

“?” = Impact on burden and cost uncertain

3.5.2 QA/QC Activities

To ensure the quality of the estimates based on the data and assumptions described above, EPA

performed a variety of checks on the spreadsheet calculations and the transfer of the results into 

the tables and text throughout this report. These include using best practices for developing 

spreadsheets to minimize errors; verifying data inputs and transfer from the source; checking 

formulas; and comparing results across formats.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 4. Small Entity Analysis 4-1

4. Small Entity Analysis

The Regulatory Flexibility Act (RFA) of 1980, as amended by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 1996, requires Federal agencies to consider the impact 

of their regulatory proposals on small entities, to analyze alternatives that minimize those 

impacts,4 and to make their analyses available for public comments. The RFA addresses three 

types of small entities: small businesses, small nonprofits, and small government jurisdictions. 

These entities have the following definition under the RFA:

• Small business has the same meaning as the term “small business concern” under 

Section 3 of the Small Business Act, which authorizes the Small Business Administration 

to define “small business” by regulations. These definitions generally categorize which 

businesses are small based on the number of employees or average annual receipts; 

• Small organization means any not-for-profit enterprise which is independently owned 

and operated and is not dominant in its field; and

• Small governmental jurisdiction means governments of cities, counties, towns, 

townships, villages, school districts, or special districts, with a population of less than 

fifty thousand.

Additionally, Federal agencies may establish, with opportunity for public comment and with 

publication of the alternate definition in the Federal Register that entities should qualify as small 

based on additional factors.

The RFA describes the regulatory flexibility analyses and procedures that must be completed by 

federal agencies unless they certify that today’s rule, if promulgated, would not have a 

significant economic impact on a substantial number of small entities. This certification must be 

supported by a statement of factual basis, such as addressing the number of small entities 

affected by the proposed action, expected cost impacts on these entities, and evaluation of the 

economic impacts.

As documented in Section 3 of this report, the revisions to the WQS regulation do not establish 

any new requirements directly applicable to regulated entities. Today’s rule impacts states and 

authorized tribes that implement WQS in the form of administrative burden and cost, and to EPA

in the form of additional reviews of program materials submitted by states and authorized tribes. 

States and tribes are not small entities under the RFA. As such, today’s rule will not result in 

impacts to small entities.

 

4 Section 603(c) of the RFA provides examples of such alternatives as: (1) the establishment of differing compliance or reporting 

requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, 

or simplification of compliance and reporting requirements under today’s rule for such small entities; (3) the use of 

performance rather than design standards; and (4) an exemption from coverage of today’s rule, or any part thereof, for such 

small entities.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 5. Potential Incremental Benefits 5-1

5. Potential Incremental Benefits of the Revisions

States and authorized tribes will benefit from today’s rule by better utilization of available 

regulatory tools that allow them the flexibility to implement their WQS programs in an efficient 

manner. Stakeholders and the public will benefit from greater transparency and open public 

participation. Although EPA estimates the burden and cost directly associated with today’s rule, 

EPA does not estimate the potential burden and costs savings associated with reducing 

regulatory uncertainty and increasing overall program efficiency. Moreover, EPA does not 

estimate potential indirect burden and cost associated with today’s rule because EPA cannot 

reliably predict the control measures each individual state and authorized tribe is likely to 

implement. Because more efficient and effective implementation of state and authorized tribal 

WQS provides a variety of economic benefits associated with cleaner water, the sections below 

qualitatively describe some of the benefits of today’s rule. The first section describes some of the 

potential direct benefits of today’s rule. The second section describes some of the potential 

indirect benefits of improving and maintaining the nation’s waters.

5.1 Benefits by Program Area

Today’s rule will increase clarity and specificity in 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) WQS variances; and (6) compliance schedule 

authorizing provisions. States and authorized tribes, other stakeholders, and the public will 

benefit from clarification in these key areas by being able to better understand and make proper 

use of available CWA tools and flexibilities under the conditions of open and transparent public 

participation. Clear regulatory requirements and improved implementation will provide a more 

transparent and well-defined pathway for maintaining and restoring the biological, chemical, and 

physical integrity of the nation’s waters.

5.1.1 Administrator’s Determinations

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 in those situations where 

a state fails or is unable to act in a manner consistent with CWA provisions. An Administrator’s 

determination triggers the requirement for EPA to promptly prepare and publish regulations 

setting forth a revised or new WQS for the waters of the United States that are involved.

The public and stakeholders do not always clearly understand or interpret the process whereby 

the Administrator determines that new or revised standards are necessary. For EPA to ensure 

effective implementation of the national WQS program, provide direct, clear, and transparent 

feedback on state and tribal actions, it is essential that EPA maintain an open and constructive 

dialogue with states and authorized tribes and stakeholders on important water quality issues. 

The revision will establish a more transparent process for the Administrator to announce any 

determination made under section 303(c)(4)(B) of the CWA. This revision will allow states and 

authorized tribes to develop their WQS without fear of litigation triggering a mandatory duty on 

the part of EPA to develop WQS for a state or authorized tribe before it is appropriate or 

necessary and before the state or authorized tribe had an opportunity to act on EPA’s comments 

and guidance.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 5. Potential Incremental Benefits 5-2

5.1.2 Designated Uses 

Designated uses communicate a state’s or authorized tribe’s environmental management goals 

for its waters and drive on-the-ground water quality decision-making and improvements. To 

establish appropriate WQS, states and authorized tribes define the water quality goals of a water

body first by designating the use(s) and second by setting criteria necessary to 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.

Because designated uses play such an important role in the effective implementation of the 

CWA, it is essential to provide clear and concise regulatory requirements to states and authorized 

tribes for designated uses. Today’s rule provides regulatory clarifications that will prevent

conflicting interpretations which may lead to case-by-case analyses and direct resources away 

from water quality restoration and maintenance efforts. When stakeholders, states and authorized 

tribes collectively understand and determine the management goals for a particular water body or 

water bodies, stakeholders are more likely to become involved and work closely with the states 

and authorized tribes in the establishment and attainment of WQS, leading to improved 

stewardship and watershed protection efforts. The clearer, more accurate, and more refined the 

designated uses are in describing the state’s or tribe’s objective for a water body to support 

aquatic life, human health, recreation and other uses, the more effective those use designations 

can be in driving the management actions necessary to restore and protect water quality.

Under today’s rule, if a state or authorized tribe demonstrates through a defensible UAA that the 

use specified in Section 101(a)(2) or a sub-category of such a use is not attainable and 

subsequently removes the use, then the state or authorized tribe shall adopt as replacement 

standards the highest degree of use that is attainable (i.e., the HAU). States and authorized tribes

have flexibility to adjust current designated uses through a UAA process in accordance with the 

provisions of § 131.10(g). However, that flexibility is provided in the context of meeting the 

overall goals of the CWA. As part of the UAA process, a state or authorized tribe may be able to 

adequately demonstrate that, for example, historic mining activities in an area result in 

nonattainment of applicable water quality criteria and the aquatic life use. However, if some less 

sensitive aquatic organisms are able to survive at the site, the goals of the CWA are not achieved 

by simply removing the aquatic life use designation and applicable criteria without considering if 

existing water quality can be maintained or, where applicable, restored. Rather, the revised 

provision requires that states and authorized tribes determine through the UAA the level of 

aquatic life protection that is attainable, and then designate that use. This revision will ensure 

that WQS reflect the greatest water quality possible, thus protecting the economic, .

5.1.3 Triennial Reviews

Today’s final rule contains two revisions to the triennial review requirements at 40 CFR 

131.20(a). First, the rule requires that if states and authorized tribes choose not to adopt new or 

revised criteria for any parameters for which EPA has published new or updated CWA section 

304(a) criteria recommendations, states and authorized tribes must explain their decision when 

reporting the results of their triennial review to EPA under CWA section 303(c)(1) and 40 CFR 

131.20(c). Second, the rule clarifies what are the “applicable water quality standards” that states 

and authorized tribes must review triennially. These provisions ensure that states and authorized 

tribes appropriately consider any and all existing criteria established pursuant to 40 CFR 131.11
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December 2014 5. Potential Incremental Benefits 5-3

during the triennial review, including EPA’s new or updated CWA section 304(a) 

recommendations.

WQS optimally protect water quality when they are based on the latest science and information.

The water quality requirements needed to support aquatic life, recreation, unique and significant 

ecologies, and species habitat can change as new scientific studies establish new knowledge 

about how aquatic systems operate. Achieving the water quality needed to protect designated 

uses are best achieved when states and authorized tribes established and update their WQS using 

the best available science and information. The triennial review provisions in today’s rule will 

ensure that states and authorized tribes use the latest scientific information to provide for the 

greatest water quality possible, leading to the economic, human health and ecological benefits

that derive from clean water.

5.1.4 Antidegradation

Section 101(a) of the CWA emphasizes the prevention of water pollution and expressly includes 

the objective of restoration and maintenance of the chemical, physical and biological integrity of 

the nation’s waters (33 U.S.C. 1251). The antidegradation requirements that EPA incorporated 

by regulation in 1983 into § 131.12 implement the maintenance aspect of CWA section 101(a) 

and are an essential component of the overall WQS program. Antidegradation policy plays a 

critical role in allowing states and authorized tribes to maintain and protect the valuable resource 

of high quality waters, and ensures that decisions to allow a lowering of water quality are made 

in a public and transparent manner that serves the public good. High quality waters support 

aquatic life, recreation, unique and significant ecologies, and species habitat. High quality waters 

can maintain a greater diversity of biological species and a more complex community structure 

than other waters. 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.

Protection of high quality waters is supports both economic and social development. High 

quality waters contribute to 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 jobs they create rely on a high quality and sustainable source of water. 

Degradation of water quality poses a risk to public health, harms aquatic ecosystems, and can 

increase water treatment cost that must be borne by ratepayers and local governments.

Maintaining high quality waters can save time and economic resources to a community in the 

long-term. If a high quality water becomes impaired, it can take significant amounts of time and 

financial resources to develop a TMDL and implement activities to restore the water body. 

Effectively using an antidegradation program to prevent water degradation in the first place is 

very often more cost-effective and efficient. In addition, maintaining a water body in its initial 

high quality state helps ensure the preservation of unique attributes that might be impossible to 

fully restore. Section 5.2 of this report contains a more detailed discussion on the benefits 

associated with high quality water.

5.1.4.1 Identifying High Quality Waters

Today’s rule requires states and authorized tribes to identify high quality waters on a parameterby-parameter basis or on a water body-by-water body approach, unless the state or authorized 

tribe describes an alternate approach that considers the chemical, physical, and biological 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 5. Potential Incremental Benefits 5-4

integrity of the water body. In the absence of data for such holistic evaluation, the state or 

authorized tribe shall apply high quality water protection per § 131.12(a)(2).

EPA expects states and authorized tribes to consider a combination of chemical, biological, and 

physical characteristics, using all the relevant available data to conduct an overall holistic 

assessment of one or more of these characteristics in order to determine whether a water body

receives Tier 2 protection. The approach should not simply limit the applicability of Tier 2 

through a list of disqualifiers for Tier 2 protection (e.g., listing on the state’s CWA section 

303(d) list) because such disqualifiers are potentially poor indicators of the overall quality of a 

surface water and the value of affording it Tier 2 protection under antidegradation policy. This

revision will ensure protection of a larger number of high quality waters under antidegradation

requirements.

5.1.4.2 Alternatives Analysis 

Under today’s rule, before allowing a lowering of high water quality, states and authorized tribes 

must find, after an analysis of alternatives, that such a lowering is necessary to accommodate 

important economic or social development in the area in which the waters are located. That 

analysis must evaluate a range of non-degrading and less degrading practicable alternatives. 

When an analysis identifies one or more such practicable alternatives, states and authorized 

tribes may only find that a lowering is necessary if one such alternative is selected for 

implementation.

Today’s rule ensures that, where the alternatives analysis identifies one or more feasible 

alternatives to allowing the degradation, a project is modified to minimize degradation of water 

quality. This balanced analysis of water quality impacts along with other holistic considerations 

offers the most thorough and publicly transparent way to ensure that lower water quality is 

allowed only when necessary, consistent with EPA’s regulation.

5.1.5 WQS Variances

The objective of the CWA is to “restore and maintain the chemical, physical, and biological 

integrity of the Nation’s waters.” However, as environmental challenges become more complex, 

states and authorized tribes may require more time to determine and implement the best 

strategies to improve water quality and attain applicable designated uses while striving to 

achieve the CWA goal. As an alternative to a permanent use downgrade, EPA has encouraged 

states and authorized tribes to utilize WQS variances as an important WQS tool to provide states 

and authorized tribes time to make progress towards attaining a designated use and criteria.

EPA’s existing WQS regulation lacks explicit provisions on the issue of WQS variances. As a 

result, EPA has heard from states and authorized tribes, and stakeholders that there are

confusion, inconsistency, and mixed interpretations about how, when, and where WQS variances 

may be used. Today’s rule provides greater regulatory specification for implementation of a 

WQS variance as a time-limited designated use and criterion. This revision will encourage 

proper use of WQS variances as a tool for achieving WQS and facilitating water quality 

improvements.

WQS variances are different from changes to the permanent designated use and associated 

criteria in that they are intended as a mechanism to provide time for stakeholders to implement 

adaptive management approaches that will improve water quality where the designated use and 

criterion currently in place are not being met. EPA requires that interim limits and requirements 
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December 2014 5. Potential Incremental Benefits 5-5

reflect the highest attainable condition during the term of the WQS variance. These requirements 

must protect the interim designated use and be based on sound scientific rationale. This provision

is essential because it provides regulatory assurance that the WQS variance will result in more 

than just maintaining the current water quality. Further, stakeholders may be less likely to 

perceive WQS variances as a means of locking ambient conditions in place and delaying 

environmental improvements.

WQS variances allow stakeholders to implement actions that will achieve interim uses and 

criteria that are attainable when there is uncertainty as to whether the designated use and 

criterion may be ultimately attainable. WQS variances are typically limited in their scope to one 

pollutant. WQS variances are an environmentally preferable tool to a permanent designated use 

change in that designated use protection is retained for all pollutants as they apply to all sources 

with the exception of those specified in the WQS variance. When properly applied, a WQS 

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.

The revisions will establish a standardized set of requirements to facilitate efforts to improve 

water quality by allowing stakeholders to address any challenges and uncertainties associated 

with attaining the designated use and the associated criterion. The revisions ensure that states and 

authorized tribes base their identification and water body assessments decisions (under CWA 

sections 303(d) and 305(b)), and development of WQBELS in permits for pollutants and 

dischargers not specified in the WQS variance, on the designated use and criterion, even under 

the waterbody WQS variance scenario. Through reevaluations, these revisions will also ensure

that further feasible progress toward the designated use and criterion will be made during the 

WQS variance period and will help meet CWA goals.

5.1.6 Compliance Schedule Authorizing Provisions

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.” 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 interim requirements...leading to compliance 

with the CWA and regulations.” Section 301(b)(1)(C) of the CWA 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 

or authorized tribal 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.”

EPA’s current WQS regulation is silent regarding compliance schedules and compliance 

schedule authorizing provisions. As a result, EPA is concerned that state and tribal permitting 

authorities may be including compliance schedules in permits, thus delaying compliance with a 

WQBEL, even though the state or authorized tribe may not have authorized the use of such 

compliance schedules in its WQS or implementing regulations. Today’s rule adds a new 

regulatory provision at § 131.15 to clarify that a state or authorized tribe may only issue 

compliance schedules for WQBELS in NPDES permits if the state or authorized tribe has 

authorized issuance of such compliance schedules pursuant to state or authorized tribe law in its 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 5. Potential Incremental Benefits 5-6

WQS or implementing regulations. Any such compliance schedule authorizing provision is a 

WQS subject to EPA’s review and approval. The provision also clarifies that individual 

compliance schedules issued pursuant to such authorizing provisions are not WQS but must be 

consistent with CWA section 502(17), the state or authorized tribe’s EPA-approved compliance 

schedule authorizing provision, and the requirements of 40 CFR §§ 122.2 and 122.47.

Compliance schedule authorizing provisions allow the state or authorized tribe 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. A compliance schedule authorizing provision 

allows the state or authorized tribe to delay when it will meet the applicable WQS. By requiring 

states and authorized tribes to authorize the use of compliance schedules in their WQS or 

implementing regulations, EPA ensures that WQBELs subject to appropriately issued 

compliance schedules are fully consistent with the requirements of WQS. Once approved 

pursuant to CWA section 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 is consistent with WQS.

These revisions will ensure that permittees do not unnecessarily delay implementation of WQS

that are protective of water quality.

5.2 Benefits of Improved Water Quality

As stated above, today’s rule will improve the effectiveness of the WQS regulation in restoring 

and maintaining the chemical, physical, and biological integrity of the nation’s waters. Improved 

water quality has many human health and ecological benefits, described below.

5.2.1 Market Benefits 

The market benefits of improved water quality are reflected in its value to water supply and use, 

commercial fishing, and public and private ownership.

5.2.1.1 Water Supply and Use

• Drinking Water Treatment and Household Water Use. Reducing contaminants, 

nutrients, and sediment in potable water supplies lowers the cost of treating these waters,

reduces the health risk from potential exposure to contaminated drinking water, and 

avoids the need to develop alternative raw water sources. Discharged pollutants worsen

water quality and require increased spending on treatment measures such as settlement 

ponds, filtration, and chemical treatment. Reducing nutrient loadings to surface waters 

reduces eutrophication, which is one of the main causes of taste and odor impairment in 

drinking water. Taste and odor in drinking water have a major negative impact on the 

public perception of drinking water safety and result in a significant increase in drinking 

water treatment cost to address foul taste and odor in the source waters. If adequate water 

treatment is not available, a temporary water source needs to be substituted (if available). 

If an alternative water supply is not at hand, urban areas might need to be supplied with 

bottled or tankered water, as has been the case in Ohio (Yeager-Kozacek, 2014). Longterm solutions might require the development of new raw water supplies, which would 

involve investments for acquisition of land (if available), regulatory review and 

permitting, development of infrastructure (dams, pumps, pipes), and watershed 

protection.
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December 2014 5. Potential Incremental Benefits 5-7

• Agricultural Water Use. Irrigation water that contains pollutants can harm crops and 

reduce agricultural productivity (Clark et al. 1985). Although elevated nutrient 

concentrations in irrigation water would not adversely affect its usefulness for plants, 

concerns exist for potential residual effects due to contaminants entering the food chain. 

More importantly, eutrophication promotes cyanobacterial blooms that can kill livestock 

and wildlife that drink the contaminated surface water. The reduction in nutrients loading,

for example due to adoption or improved implementation of WQS, can provide benefits 

in increased cattle production or avoided cost due to cattle sickness or death. 

• Reservoir Dredging. Water storage facilities (e.g., reservoirs) serve many functions, 

including providing drinking water, flood control, hydropower supply, and recreational 

opportunities. Sediment, one of the pollutants likely to be reduced by improved 

implementation of WQS, can be carried from streams into reservoirs, where it can settle 

and build up layers of silt over time. This increase in sedimentation rates will reduce 

reservoir capacity. To replace this capacity, sediment must be dredged from reservoirs, or 

new reservoirs must be constructed (Clark et al. 1985). Water quality criteria reduce the 

amount of sediment entering reservoirs and, as a result, the need for sediment mitigation 

measures in these reservoirs and the cost of reservoir maintenance. Because sediment 

mitigation is often accomplished through dredging, which itself is environmentally 

destructive, an additional benefit to reduced reservoir sediment buildup is the reduced 

environmental impact of dredging sediment and disposing of it.

• Industrial Water Use. Sediment discharges may also have negative effects on industrial 

water users. Suspended sediment increases the rate at which hydraulic equipment, pumps, 

and other equipment wear out, causing accelerated depreciation of capital equipment. 

Sediment can also clog cooling water systems at power plants and other large industrial 

facilities (Clark et al. 1985). Improved water quality standard implementation will reduce 

sediment concentrations in source waters and thus lengthen the useful life of industrial 

equipment.

5.2.1.2 Commercial Fishing 

Pollutants regulated by WQS can greatly reduce fish populations and therefore the size of 

commercial harvest by inhibiting reproduction and survival of an aquatic species. These changes 

negatively affect subsistence anglers, commercial anglers and fish sellers, and consumers of fish 

and fish products. Improvement of water quality due to the more efficient implementation of 

WQS will enhance aquatic life habitat and thus contribute to reproduction and survival of 

commercially harvested species, which in turn will lead to an increase in producer and consumer 

surplus. 

5.2.1.3 Public and Private Property Ownership

Aesthetic degradation of land and water resources resulting from pollutant discharges (e.g.,

increased water turbidity) can reduce the market value of property and thus affect the financial 

status of property owners. For example, a hedonic price study by Bejranonda et al. (1999) found 

that “the rate of sediment inflow entering the lakes has a negative influence on lakeside property 

rent” (p. 216). Sediment discharges also have a significant impact on stream morphology. For 

example, higher coarse sediment load leads to an increase in width of the riverbed and, as a 

result, bank erosion (Wheeler et al. 2003). A 1993 study of Lake Erie’s housing market found 

that “erosion-prone lakeshore property will be discounted” (Kriesel et al. 1993).
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December 2014 5. Potential Incremental Benefits 5-8

Conversely, water quality improvement and protection can increase or maintain waterfront 

property values. Studies suggest that waterfront property is more desirable when located near 

unpolluted water, and therefore property values increase with improved water quality. Likewise, 

stabilization of stream banks leads to an increase in the value of surrounding property (Streiner 

and Loomis 1996).

5.2.2 Nonmarket Benefits

The nonmarket benefits of improving or protecting water quality include those associated with 

human health, recreation, and nonmarket nonuse values.

5.2.2.1 Human Health Improvements

Cleaner water may lead to a reduction in illness either through reduced consumption of 

contaminated seafood or through reduced exposure to infectious disease during recreation 

activities in contaminated waters. Some contaminants, such as mercury, PCBs, chlordane, 

dioxins, and DDT, may persist for long periods of time and bioaccumulate (e.g., they can be 

found in levels several time higher than ambient water in large fish such as bass that consume 

contaminated bottom dwelling animals). Eating fish contaminated with mercury or PCBs may 

lead to developmental and neurological problems and is especially hazardous for children and 

pregnant women. Consumption of shellfish may lead to exposure to bacteria and viruses that can

accumulate in shellfish from ambient water.

Swimmers, boaters, and other recreational water users may also suffer from gastrointestinal and 

other illnesses due to ingesting, immersing, or wading in water that contains enteric pathogens 

such as fecal bacteria and viruses. To the extent that today’s rule increases the nation’s water 

quality by reducing current exposures and illness and preventing future exposures and illness, 

society benefits. The benefits are reflected in the avoided cost of illness, including treatment cost

and lost wages, as well as in the public’s willingness-to-pay, which also includes the value of 

avoided pain and suffering.

5.2.2.2 Recreational Benefits

Benefits also include the value of improved environmental goods and services used and valued 

by people even if these services and goods are not traded in markets. Aesthetic degradation of 

water resources can reduce owner satisfaction with the property and the residential area in 

general. It can also adversely affect recreational opportunities. Improved water quality from 

reducing pollutant discharges or preventing degradation may translate into two components of 

recreational benefits: (1) an increase in the value of a recreational trip resulting from a more 

enjoyable experience, and (2) an increase in recreational participation.

Recreational activities that may be adversely impacted by water pollution are summarized below.

• Outings. Activities that take place near water such as hiking, jogging, picnicking, and 

wildlife viewing may be adversely affected by pollutant discharges into the water. While 

these activities do not involve contact with the water, murky and visually unpleasant 

water and odors associated with some types of pollutants may greatly detract from the 

enjoyment of these activities. Decreases in fish populations may cause a reduction in 

wildlife near the resource, affecting wildlife viewing. Pollutants may negatively affect 

local flora and fauna, reducing the aesthetic appeal of the area near the resource and 

negatively impacting wildlife viewing.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 5. Potential Incremental Benefits 5-9

• Recreational Fishing. Degraded water can reduce fish populations by inhibiting 

reproduction and survival of an aquatic species. This effect may lead to fewer and smaller 

fish and a reduction of the game fish population. In addition, pollutants may reduce the 

aesthetics of the water body, which may reduce anglers’ utility (enjoyment) of their 

fishing experience. Additionally, turbidity caused by pollutant discharges may affect 

recreational anglers by reducing the distance over which fish can see lures, resulting in 

lower catch rates (Clark et al. 1985).

• Boating. Polluted water greatly reduces the aesthetic appeal of recreational boating 

activities. Turbidity caused by sediment and other pollutant discharges may affect the 

safety of boating. Turbidity may obscure underwater obstacles, making collisions more 

likely. Increased sediment concentrations may also create sandbars, increasing the 

chances of running aground. Clark et al. (1985) estimated that turbidity (from all sources) 

may be responsible for as many as 200 boating fatalities and many more injuries each 

year. Using the value for a statistical life’s worth of risks ($7 million) and multiplying it 

by the number of boating fatalities yields the value of preventing these fatalities of 

$1.4 billion per year. Even if reducing discharges prevents only a small number of 

fatalities and injuries each year, the expected monetary value of preventing boating 

accidents can be significant.

• Swimming. Pollution of water by toxic chemicals or by fecal indicator bacteria may 

cause closure of water bodies for swimming. Eutrophication caused by nutrients and 

turbidity caused by sediment and other pollutants also may greatly reduce a swimmer’s 

aesthetic enjoyment of a water body. Additionally, turbidity may create safety hazards for 

the swimmer by reducing the ability to see underwater hazards or increasing diving 

accidents by impairing the ability to gauge water depth.

• Hunting. Similar to the effect on outings, discharged pollutants may greatly detract from 

the hunters’ aesthetic enjoyment of a water resource. Damage to flora and fauna may also 

affect the game population, reducing the number and quality of the game available.

5.2.2.3 Nonmarket Nonuse Benefits

Even if no human activities or uses are affected by the potential positive environmental changes 

caused by today’s rule, such environmental changes may still affect social welfare. For a variety 

of reasons, including bequest, altruism, and existence motivations, individuals may value the 

knowledge that water quality is maintained, that ecosystems are protected, and that populations 

of individual species are healthy, completely independent of their use value. It is often difficult 

to quantify the relationship between changes in pollutant discharges and the improvements in 

societal well-being that are not associated with current use of the affected ecosystem or habitat. 

That these values exist, however, is indisputable, as evidenced, for example, by society’s 

willingness to contribute to organizations that purchase and preserve lands or habitats to avert 

development (although some portion of these donations may be motivated by use values). 

Notwithstanding challenges involved in estimation of nonuse values, there is a substantial 

literature devoted to such issues (Bateman et al. 2002). This literature supports the significance

of nonmarket, nonuse values within various types of policy contexts and for various types of 

resources.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 6. References 6-1

6. References

Bateman, I. J., R. T. Carson, B. Day, M.; Hanemann, N. Hanley, T. Hett, M. Jones-Lee, G. 

Loomes, S. Mourato, E. Özdemiroḡlu, D. W. Pearce, R. Sugden, J. Swanson. 2002. 

Economic Valuation with Stated Preference Techniques: a Manual. Edward Elgar Publishing.

Bejranonda, S. F.J. Hitzhusen; and D. Hite. 1999. “Agricultural Sedimentation Impacts on 

Lakeside Property Values.” Agricultural and Resource Economics Review 28(2): 208-18.

Bureau of Labor Statistics (BLS). 2013. May 2013 National Occupational Employment and 

Wage Estimates, United States. Available at http://www.bls.gov/oes/current/oes_nat.htm.

Clark, E., J.A. Haverkamp, and W. Chapman. 1985. “Eroding Soils: The Off-Farm Impacts.” 

Washington, DC: The Conservation Foundation.

Iowa Department of Natural Resources (IDNR). 2008. Fiscal Impact Statement Associated with 

the Notice of Intended Action: Antidegradation – Water Quality Standards (Chapter 61).

Kriesel, W., A. Randall, and F. Lichtkoppler. 1993. “Estimating the Benefits of Shore Erosion 

Protection in Ohio’s Lake Erie Housing Market.” Water Resources Research. 29(4). 795-801.

Missouri Department of Natural Resource (MDNR). 2008. Missouri Register: Proposed 

Amendment: 10 CSR 20-7.031 Water Quality Standards. January 16, 2008.

Streiner, C.F. and Loomis, J.B. 1996. “Estimating the Benefits of Urban Stream Restoration 

Using the Hedonic Price Method.” Rivers. 5(4): 267-278.

United States Environmental Protection Agency (U.S. EPA). 2014. National Recommended 

Water Quality Criteria. Available at 

http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm.

United States Environmental Protection Agency (U.S. EPA). 2011b. Variance Compendium. 

Available at: 

http://www.deq.state.or.us/wq/standards/docs/toxics/humanhealth/rulemaking/VarianceComp

endium110124.pdf.

United States Environmental Protection Agency (U.S. EPA). 2009. National Recommended 

Water Quality Criteria. Available at 

http://water.epa.gov/scitech/swguidance/standards/criteria/current/upload/nrwqc-2009.pdf.

United States Environmental Protection Agency (U.S. EPA). 2007. Water Quality Standards 

Handbook, Second Edition. Available at: 

http://water.epa.gov/scitech/swguidance/standards/handbook/index.cfm/.

United States Environmental Protection Agency (U.S. EPA). 2003. Revised National 

Recommended Water Quality Criteria for the Protection of Human Health. December.

United States Environmental Protection Agency (U.S. EPA). 2002. National Recommended 

Water Quality Criteria. EPA-822-R-02-047. November.

United States Environmental Protection Agency (U.S. EPA). 1999. National Recommended

Water Quality Criteria–Correction. EPA 822-Z-99-001. April.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 6. References 6-2

United States Environmental Protection Agency (U.S. EPA). 1986. Quality Criteria for Water 

(Gold Book). EPA 440/5-86-001. May.

United States Environmental Protection Agency (U.S. EPA). 1976. Quality Criteria for Water 

(Red Book). PB-263 943. June.

United States Office of Personnel Management. 2014. Salary Table 2014-GS. Available at: 

http://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2014/general-schedule/.

Wheeler, A.P., A.E. Keiter Rosenberger and P.L. Angermeier. 2003. Potential Impacts of I-73 on 

Stream Habitat and Biota, with Emphasis on the Federally Endangered Roanoke Logperch. 

Department of Fisheries and Wildlife services, Virginia Polytechnic Institute and State 

University.

Yeager-Kozacek, C. 2014. Toledo Issues Emergency ‘Do Not Drink Water’ Warning to 

Residents. Available at http://www.circleofblue.org/waternews/2014/world/toledo-issuesemergency-warning-residents-drink-water/.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 7. Appendix 7-1

7. Appendix: EPA’s CWA Section 304(a) Criteria Recommendations

In this analysis, EPA estimates the number of new or updated CWA section 304(a) criteria a 

state or authorized tribe may need to consider at each triennial review (Section 3.2.4) by 

reviewing historical CWA section 304(a) criteria recommendations. Exhibit 7-1 shows all 

section 304(a) criteria recommendations published since enactment of the CWA in 1972.

EPA counts 371 new or updated CWA section 304(a) criteria recommendations (U.S. EPA 1976; 

1986; 1999; 2002; 2003; 2009; 2014). Over the 42-year period of the CWA (2014 – 1972 = 42), 

this represents approximately 9 new or updated CWA section 304(a) criteria recommendations 

per year, or 27 per 3-year triennial review period (371 CWA section 304(a) 

recommendations ÷ 42 years × 3 years per triennial review = 27 CWA section 304(a) criteria 

recommendations per triennial review).

Exhibit 7-1: Current and Prior CWA Section 304(a) Criteria Recommendation 

Publication Years

Pollutant

Criteria Publication Year

(Prior Publication Years)

1,1,2,2-Tetrachloroethane 2002 (1999)

1,1,2-Trichloroethane 2002 (1999)

1,1-Dichloroethylene 2003 (1999)

1,2,4-Trichlorobenzene 2003 (1999)

1,2-Dichlorobenzene 2003 (1999)

1,2-Dichloroethane 2002 (1999, 1986)

1,2-Dichloropropane 2002 (1999, 1986)

1,2-Diphenylhydrazine 2002 (1999, 1986)

1,2-Trans-Dichloroethylene 2003 (1999)

1,3-Dichlorobenzene 2002 (1999, 1986)

1,3-Dichloropropene 2003 (1999, 1986)

1,4-Dichlorobenzene 2003 (1999)

2,3,7,8-TCDD (Dioxin) 2002 (1999)

2,4,6-Trichlorophenol 2002 (1999, 1986)

2,4-Dichlorophenol 2002 (1999, 1986)

2,4-Dimethylphenol 2002 (1999)

2,4-Dinitrophenol 2002 (1999)

2,4-Dinitrotoluene 2002 (1999, 1986)

2-Chloronaphthalene 2002 (1999)

2-Chlorophenol 2002 (1999)

2-Methyl-4,6-Dinitrophenol 2002 (1999)

3,3'-Dichlorobenzidine 2002 (1999, 1986)

4,4'-DDD 2002 (1999)
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 7. Appendix 7-2

Exhibit 7-1: Current and Prior CWA Section 304(a) Criteria Recommendation 

Publication Years

Pollutant

Criteria Publication Year

(Prior Publication Years)

4,4'-DDE 2002 (1999)

4,4'-DDT 1980

4,4'-DDT 2002 (1999, 1986)

Acenaphthene 2002 (1999, 1986)

Acrolein 2009

Acrolein 2009 (2002)

Acrylonitrile 2002 (1999, 1986)

Aesthetic Qualities 1986

Aldrin 1980 (1976)

Aldrin 2002 (1999, 1986)

Alkalinity 1986

alpha-BHC 2002 (1999, 1986)

alpha-Endosulfan 1980 (1976)

alpha-Endosulfan 2002 (1999, 1986)

Aluminum pH 6.5 – 9.0 1988

Ammonia - freshwater 2013

Ammonia - saltwater 1989

Anthracene 2002 (1999)

Antimony 2002 (1999, 1986)

Arsenic 1992 (1986)

Arsenic 1995 (1986, 1976)

Asbestos 1991 (1986)

Bacteria 1986

Barium 1986

Benzene 2002 (1999, 1986)

Benzidine 2002 (1999)

Benzo(a) Anthracene 2002 (1999)

Benzo(a) Pyrene 2002 (1999)

Benzo(b) Fluoranthene 2002 (1999, 1986)

Benzo(k) Fluoranthene 2002 (1999, 1986)

Beryllium 1976

beta-BHC 2002 (1999, 1986)

beta-Endosulfan 1980

beta-Endosulfan 2002 (1999, 1986)

Bis(2-Chloroethyl) Ether 2002 (1999, 1986)
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 7. Appendix 7-3

Exhibit 7-1: Current and Prior CWA Section 304(a) Criteria Recommendation 

Publication Years

Pollutant

Criteria Publication Year

(Prior Publication Years)

Bis(2-Chloroisopropyl) Ether 2002 (1999, 1986)

Bis(2-Ethylhexyl) Phthalate 2002 (1999, 1986)

Boron 1986

Bromoform 2002 (1999)

Butylbenzyl Phthalate 2002 (1999)

Cadmium 2001 (1986, 1976)

Carbaryl 2012

Carbon Tetrachloride 2002 (1999)

Chlordane 1980 (1976)

Chlordane 2002 (1999, 1986)

Chloride 1986

Chlorine 1986 (1976)

Chlorobenzene 2003 (1999)

Chlorodibromomethane 2002 (1999)

Chloroform 2002 (1999, 1986)

Chlorophenoxy Herbicide (2,4-D) 1986

Chloropyrifos 1986

Chromium (III) 1995 (1986, 1976)

Chromium (VI) 1995 (1986)

Chrysene 2002 (1999)

Color 1986

Copper 1992 (1986, 1976)

Copper 2007 (2002)

Cyanide 1985 (1976)

Cyanide 2003 (1999, 1986)

Demeton 1985

Diazinon 2005

Dibenzo(a,h)Anthracene 2002 (1999)

Dichlorobromomethane 2002 (1999)

Dieldrin 1995 (1986)

Dieldrin 2002 (1999, 1986)

Diethyl Phthalate 2002 (1999, 1986)

Dimethyl Phthalate 2002 (1999)

Di-n-Butyl Phthalate 2002 (1999)

Dinitrophenols 2002 (1999)
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 7. Appendix 7-4

Exhibit 7-1: Current and Prior CWA Section 304(a) Criteria Recommendation 

Publication Years

Pollutant

Criteria Publication Year

(Prior Publication Years)

Endosulfan Sulfate 2002 (1999)

Endrin 1995 (1986, 1976)

Endrin 2003 (1999)

Endrin Aldehyde 2002 (1999)

Ether, Bis( Chloromethyl) 2002 (1999)

Ethylbenzene 2003 (1999, 1986)

Fluoranthene 2002 (1999, 1986)

Fluorene 2002 (1999)

gamma-BHC (Lindane) 1995

gamma-BHC (Lindane) 2003 (1999)

Gases, Total Dissolved 1986

Guthion 1986

Hardness 1986

Heptachlor 1980 (1976)

Heptachlor 2002 (1999, 1986)

Heptachlor Epoxide 1981

Heptachlor Epoxide 2002 (1999)

Hexachlorobenzene 2002 (1999, 1986)

Hexachlorobutadiene 2002 (1999)

Hexachlorocyclopentadiene 2003 (1999, 1986)

Hexachloroethane 2002 (1999)

Ideno(1,2,3-cd)Pyrene 2002 (1999)

Iron 1986

Isophorone 2002 (1999, 1986)

Lead 1980

Malathion 1986

Mercury/Methylmercury 1995 (1986, 1976)

Methoxychlor 1986

Methoxychlor 1986

Methyl Bromide 2002 (1999)

Methylene Chloride 2002 (1999)

Methylmercury 2001

Mirex 1986

Nickel 1995 (1986, 1976)

Nickel 1998 (1986)
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 7. Appendix 7-5

Exhibit 7-1: Current and Prior CWA Section 304(a) Criteria Recommendation 

Publication Years

Pollutant

Criteria Publication Year

(Prior Publication Years)

Nitrates 1986

Nitrobenzene 2002 (1999, 1986)

Nitrosamines 1980

Nitrosodibutylamine, N 2002 (1999)

Nitrosodiethylamine, N 2002 (1999)

Nitrosopyrrolidine, N 2002 (1999)

N-Nitrosodimethylamine 2002 (1999, 1986)

N-Nitrosodi-n-Propylamine 2002 (1999)

N-Nitrosodiphenylamine 2002 (1999)

Nonylphenol 2005

Oil and Grease 1986

Oxygen, Dissolved Freshwater/ Oxygen, Dissolved 

Saltwater 1986

Parathion 1995 (1976)

Pathogen and Pathogen Indicators 2012

Pentachlorobenzene 2002 (1999, 1986)

Pentachlorophenol 1995 (1986)

Pentachlorophenol 2002 (1999, 1986)

pH 1986

pH 1986

Phenol 2009 (2002)

Phosphorus Elemental 1986

Polychlorinated Biphenyls (PCBs) 2002 (1999, 1986)

Pyrene 2002 (1999)

Selenium 1999 (1986)

Selenium 2002 (1999, 1986)

Silver 1980

Solids Dissolved and Salinity 1986

Solids Suspended and Turbidity 1986

Sulfide-Hydrogen Sulfide 1986

Tainting Substances 1986

Temperature 1986

Tetrachlorobenzene,1,2,4,5- 2002 (1999, 1986)

Tetrachloroethylene 2002 (1999)

Thallium 2003 (1999, 1986)
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

December 2014 7. Appendix 7-6

Exhibit 7-1: Current and Prior CWA Section 304(a) Criteria Recommendation 

Publication Years

Pollutant

Criteria Publication Year

(Prior Publication Years)

Toluene 2003 (1999, 1986)

Toxaphene 1986 (1976)

Toxaphene 2002 (1999, 1976)

Tributyltin (TBT) 2004 (1999)

Trichloroethylene 2002 (1999)

Trichlorophenol,2,4,5- 2002 (1999, 1986)

Vinyl Chloride 2003 (1999)

Zinc 1995 (1986)

Zinc 2002 (1999, 1986)

Count of CWA section 304(a) Criteria, 1972 to 2014 171 (200)

Source: U.S. EPA 1976; 1986; 1999; 2002; 2003; 2009; 2014