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ATTACHMENT 2

Procedures For Case-by-Case Exceptions From Criteria/Objectives

Section 5.3 of the Policy for Implementation of Toxics Standards for Inland Surface Waters, 

Enclosed Bays, and Estuaries of California 2000 (SIP), states:

“Where site-specific conditions in individual water bodies or watersheds differ 

sufficiently from statewide conditions and those differences cannot be addressed through 

other provisions of this Policy, the SWRCB may, in compliance with the CEQA, 

subsequent to a public hearing, and with the concurrence of the U.S. EPA, grant an 

exception to meeting a priority pollutant criterion/objective or any other provision of this 

Policy where the SWRCB determines (1) the exception will not compromise protection of 

enclosed bay, estuarine, and inland surface waters for beneficial uses; and (2) the public 

interest will be served.” pg 33-34.

This language is authorized by federal regulations at 40 CFR §131.13, which allow states and 

tribes to include variances in their water quality standards. In a letter written by U.S. EPA in 

2001 to the SWRCB Executive Director, U.S. EPA approved the case-by-case exception 

provisions with the understanding that U.S. EPA would require that the exceptions meet the 40 

C.F.R. §131.10 (g) factors for justification and that the exceptions remain short-term and nonpermanent. U.S. EPA will review and approve each application as well. 

I An exception may be requested from ambient water quality criteria/objectives or effluent 

limits based on the criteria/objectives for priority toxic pollutants established in the 

California Toxics Rule (CTR), National Toxics Rule (NTR), and RWQCB Basin Plans.

II The application should consist of the following:

(a) A profile1of the discharger (permittee) requesting the exception.

(b) Name of the specific water body, as well as all segments of the water body being 

influenced by the exception. 

(c) The specific priority toxic pollutant criteria/objective for which an exception is being 

requested.

(d) A formal request identifying the need for an exception.

(e) Justification for the exception in accordance with Title 40, Federal Code of 

Regulations 40 CFR §131.10 (g)(1-6). Data and information to support the request 

must be provided by the permittee that attainment of the criteria/objectives is not

feasible because of one or more of the use attainability factors2. These state:

(1) Naturally occurring pollutant concentrations prevent the attainment of the use; or

(2) Natural, ephemeral, intermittent, or low flow conditions or water levels prevent the 

attainment of the use, unless these conditions may be compensated for by the 

discharge of sufficient volume of effluent discharges without violating State water 

conservation requirements to enable uses to be met; or

(3) Human caused conditions or sources of pollution prevent the attainment of the use 

and cannot be remedied or would cause more environmental damage to correct 

than to leave in place; or

 

1 Profile should include: name of discharger, address of discharger, telephone/fax number, contact name, phone 

number and title, National Pollutant Discharge Elimination System (NPDES) permit number, existing order/Waste 

Discharge Requirement (WDR) number. 

2 The SIP does not condition approval of an exception request on a demonstration that one or more of the 

section 131.10(g) factors are met. However, be aware that USEPA will base its findings on the section 131.10(g) 

factors for all exceptions.
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(4) Dams, diversions or other types of hydrologic modifications preclude the 

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

condition or operate such modification in a way that would result in the attainment 

of the use; or

(5) Physical conditions related to the natural features of the water body, such as the 

lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated 

to water quality, preclude attainment of aquatic life protection uses; or

(6) Controls more stringent than those required by Clean Water Act (CWA) § 301 (b) 

and 306 would result in substantial and widespread economic and social impact.

(f) Scientifically and/or technically defensible information to support the need for an 

exception. It is up to the discharger (permittee) to show the SWRCB/USEPA that an 

exception is justified. This can include information from studies, analyses, and reports.

(g) An agenda/timeline encompassing a plan/schedule for meeting the excepted parameter 

or changing the standard use, therefore offering reasonable progress to meet the 

standards.

(h) Documentation supporting that the exception will not compromise the protection of a 

water body or watershed for its beneficial uses.

(i) An explanation of how public interests will be served.

(j) Demonstration of compliance with Antidegradation Policies.

If the requested exception will result in a lowering of water quality (i.e., an increase in 

the mass emission of pollutants discharged to a water body), the discharger must 

comply with USEPA’s antidegradation policy, 40 CFR §131.12. USEPA policy 

requires that all existing uses be fully protected. Where the water quality is better than 

that necessary to fully protect uses, the water quality may be lowered if the discharger 

demonstrates that it is necessary to accommodate important economic or social 

development. Degradation will not be allowed to drop water quality to levels below 

that necessary to protect existing beneficial uses. Where the antidegradation policy 

does not apply, the change in standards still must comply with all other applicable 

requirements of State policy for water quality control and USEPA regulations. 

(k) Demonstration of compliance with the California Environmental Quality Act (CEQA).

1. When the discharger is the lead agency, the application must include the 

appropriate CEQA documentation. 

2. When SWRCB is the lead agency, the Functional Equivalent Document (FED) 

process will be used. CEQA authorizes the Secretary for Resources to certify 

specific regulatory programs of State agencies as being “functionally equivalent” 

to the requirements of CEQA for preparation of environmental documentation, 

such as “Initial Study” and “Environmental Impact Report.” Case-by-case 

exceptions fall within the scope of the SWRCB/RWQCB certified regulatory 

program for water quality planning. SWRCB regulations in Title 23, California 

Code of Regulations (CCR) §3777- 3781 describe the required environmental 

documents and process for complying with CEQA through the certified regulatory 

program. The discharger must provide all necessary CEQA documentation.

(l) Endangered Species Act (ESA) Section 7 Consultation Application–for Aquatic Life 

Criteria (Optional)

1. To expedite an exception request for aquatic life criteria, a discharger can request 

that U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries 

Service (NOAA) designate the discharger as a non-federal representative. The 

discharger can then consult directly with these agencies under ESA. This process 

is optional; it can potentially reduce the overall exception approval process by ~ 
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90 days. Request for consultation under Section 7 of the ESA with the USFWS, 

or the NMFS3, will require the following information:

a. A description of the action to be considered.

b. A description of the specific area that may be affected by the action.

c. A description of any listed species or critical habitat that may be affected by

the action.

d. A description of the manner in which the action may affect any listed 

species or critical habitat and an analysis of any cumulative impacts.

e. Relevant reports including any environmental impact statement, 

environmental assessment, or biological assessment prepared.

f. Any other relevant available information on the action, the listed species, or 

critical habitat.

2. A designated non-federal representative prepares a biological assessment. The 

federal agency shall furnish guidance and supervision and shall independently 

review and evaluate the scope and contents of the biological assessment. The 

ultimate responsibility for compliance with section 7 remains with the federal 

agency.

III RWQCB Review

 The need for an exception will normally become apparent through the permit process. 

The discharger is responsible for request an exception and providing the RWQCB all 

relevant information needed to complete the exception process.

 The RWQCB staff will review the exception and provide SWRCB with 

recommendations on the request.

 The RWQCB will then send the information to the SWRCB, if thought to be 

appropriate. Do not wait for the permit to be reissued, if possible. 

 The RWQCB can address a pending exception request in a permit through:

1. A permit re-opener clause that allows the RWQCB to re-open the permit once the 

exception is approved, or

2. Alternative limits (i.e., limits, both with and without the exception)

 The RWQCB can group exception requests:

Grouping an exception can be accomplished several ways for discharge situations that 

include similar features. For example, exception requests can be groups for dischargers 

that share the same stream or water body, a shared limit, criteria, or objective, or the 

same permit cycle.

The exception applies only to the permittee requesting the exception and only to the 

ambient water quality criteria/objective. If authorized under the SIP, a compliance 

schedule can be added to a permit to help pursue a case-by-case exception, allowing for up 

to five years to pursue an exception, which can be issued during the following permit cycle.

 

3 Note: Assume the species is present if its habitat is present; therefore, always consider potential impacts to a 

species if its habitat is present. Also remember that for many species, surveys can only prove presence, not absence.
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IV SWRCB Review

Discharger’s exception request along with all relevant information should be sent to the 

SWRCB Executive Director. It will be reviewed by staff, followed by a mandatory 

SWRCB hearing. The steps in this process consist of:

 Preparation of SWRCB staff report with recommendations.

 Notice to the public.

 Hearing at SWRCB Workshop Session.

 SWRCB Board Meeting at which time a decision will be rendered.

 Approval will be announced with a Resolution of Adoption and approval of FED, if 

SWRCB is the lead agency. To expedite action on an exception, the SWRCB may 

skip the Workshop and conduct the hearing and take final action at the same Board 

Meeting.

V USEPA Review/Promulgate

USEPA will review any proposed case-by-case exception as a new or revised standard 

pursuant to 40 CFR section 131.21. During review, USEPA will assess the factual, 

technical, and scientific merits of the underlying supporting data pertaining to areas that 

include, but are not limited to, the following:

 The site-specific conditions in question including, but not limited to, monitoring 

data of the receiving water;

 The infeasibility of using other provisions of the SIP or other control measures to 

address the site-specific conditions;

 Justification for the length of the proposed exception;

 Where the exception will likely result in the temporary downgrade of beneficial 

uses, justifications consistent with any of the section 131.10(g) factors (See II. (e) 

above);

 Any progress the discharger will make toward attaining water quality standards; 

 For aquatic life criteria, any impact on any threatened or endangered species or 

designated critical habitat under the federal ESA; and

 Notice in the Federal Register is necessary for amendments to CTR criteria before 

USEPA will promulgate.

VI Renewal Process

RWQCB/SWRCB may renew an exception as long as specific requirements are upheld. 

The permittee must continue to demonstrate that attaining policy criteria is not feasible 

based on the conditions to grant the exception. The permittee will submit the request for an 

exception renewal through the NPDES permitting cycle. All conditions, procedures, terms, 

and processes still apply in allowing the renewal of an exception in a NPDES permit. 

Dena McCann of the Freshwater Standards Unit within the Division of Water Quality will 

maintain a clearinghouse of all copies of exceptions that have been approved by SWRCB 

and USEPA. If copies are needed, please contact her at mccad@swrcb.ca.gov.
Procedures for Case-By-Case Exceptions from Criteria/Objectives

Flow Chart

 I

 II

 III

IV

V

VI 

Exception for 

Constituent

Application

Support Document

Regional Water Quality Control Board (RWQCB)

Review and Permit Re-issuance

Compliance with Federal and State Laws and Policies

Recommendations to SWRCB

U.S. Environmental Protection Agency (USEPA) Review

Approved Denied

Endangered Species Consult – Only for aquatic life criteria if 

discharger did not choose to complete in the application phase

EPA Headquarters

Concurrence

Notice in Federal Register

USEPA Promulgates

State Water Resource Control Board (SWRCB)

Executive Director Review

Compliance with Federal and State Laws and Policies

Issues can be 

addressed and 

a new 

application 

can be 

submitted

Implementation by RWQCB

Renewal Process
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SIP Criteria/Objectives

Case-By-Case Exceptions Estimated Timeline

II Application Process 30 – 365 days

III RWQCB Review 60 – 120 days

IV SWRCB Review and Approval Process V U.S. EPA Review and Concurrence

160 - 185 days 90 – 1080 days

RWQCB Implementation of Exception 60 – 180 days

VI Renewal Process Similar to Original Time Frame

Alterations to the Timeline 

1. Further time may be necessary with complexity of the exception

2. If there is more than one exception to be reviewed and adopted 

3. Human Health criteria will take less time (no ESA)

4. SWRCB and EPA review can be done simultaneously reducing the time frame

5. Degree of opposition before it arrives at EPA may prolong concurrence

6. CTR amendments will have to be made under the Administrator’s signature, it is uncertain 

the length of time required to complete this

7. Any uncertainties by EPA (i.e., is human health protected) may prolong an amendment to the CTR 

8. RWQCB and SWRCB staffing may be a factor in adding or reducing exception time frame

The application should be started as soon as the need for an exception is apparent. Do not wait for the 

permit to be reissued. The discharger is responsible for providing all relevant information necessary to 

process the exception request, including CEQA documentation, 131.10(g) justification and ESA 

consultation application, if applicable. The completed application can then be given to the RWQCB for 

review. 

RWQCB staff will review the application for completeness and valid justification. RWQCB can 

provide the SWRCB with recommendations for approving the exception. RWQCB will send the 

completed application to the SWRCB if thought to be appropriate. Do not wait for the permit to be reissued. 

SWRCB staff report with recommendations

FED (if State is lead agency)

Notice to the Public

Comments and Responses

SWRCB workshop

SWRCB Board Meeting

Approval

RWQCB can address the exception in a permit by using a re-opener clause or by providing alternative 

limits. The permit must then go through RWQCB normal adoption procedures. 

Provided that the exception is still necessary and all previous conditions are still met, continued water 

quality data is provided, progress in PMP, no unforeseen impacts have occurred, and compliance 

schedules are being met, the renewal process should go quickly.

Compliance with 131.21

Site-specific conditions

Infeasibility of other provisions

131.10 (g) justification

Justification of length of exception

Progress towards attainment

Final ESA consultation approval +135 days

Approval letter / Disapproval letter

CTR Amendments under Administrator’s signature

EPA

Review