# CHAPTER 3
Issue Category: Variances

Pages 3- 290 – 3- 408

Response to Public Comments

Water Quality Standard Regulatory Revisions

August , 2015

40 CFR Part 131 Docket #: EPA

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This document is part of a larger document

.Chapter 3 – Response Essays 8.a – Var – Gen Supp



## Essay 8.a **– Variances**  **: General Support** 

**A. General**  **Support**

The U.S. Environmental Protection Agency ( EPA ) thanks the commenter s for supporting the concept of providing for water quality standards ( WQS ) variances in the regulation and for the time, effort and thought commenters invested in providing the EPA with meaningful input.



### B. Requirements **Result in**  **Additional Administrative Burden**

EPA revised the proposed rule to minimize administrative burden while also fulfilling EPA’s regul atory objectives. EPA estimate s of the potential incremental burden and cost associated with the final rule are summarized in the rule preamble. The complete economic analysis (EA) to the final rule can be obtai ned from docket No. EPA

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. Further discussion of comments on the EA can be found in Essay 12.b.



### C. **Water Quality Standards Variance Adoption and**  **Streamlining and**  **Multiple Discharger Variances** 

Each WQS variance is

, itself

, a change to WQS because it represents a change to the desired condition of a water body (albeit limited in time and scope) and/ or mandates how it will be expressed in the future

. Clean Water Act ( CWA ) section 303(c) and EPA’s implementing regulation at s ection 131.5 s pecify that EPA must review and approve or disapprove any new or revised WQS. States and authorized tribes must adopt any WQS variance into their WQS because t he National Pollutant Discharge Elimination System ( NPDES ) permit regulation at sec tion 122.44(d)(vii)(A) requires the permitting authority to develop

water quality

- based effluent limits (WQBELs) that derive from and comply with all applicable WQS. If a state or authorized tribe does not adopt a WQS variance as a legally binding WQS, the permitting authority would be unable to reflect the less stringent interim WQS of the WQS variance in the NPDES permit. See also EPA’s response to code 8.f.i – Variance s Applicability : Scope for a full discussion on why WQS variances are WQS.

Although sta tes and authorized tribes must adopt a WQS variance into state WQS, there are ways for a state or authorized tribe to streamline the WQS variance process and reduce the administrative burden associated with adopting WQS variances as legally binding WQS . As explained in the preamble to today’s rule, a state or authorized tribe coul d adopt a single WQS variance for more than one discharger if all the dischargers are experiencing challenges meeting their WQBELs for the same pollutant for the same

reason, even if they are not discharging to the same water body . In this situation, the state or authorized tribe may grant one variance that applies to all these dischargers (i.e., a multiple discharger variance) so long as the variance is consistent with the CWA and implementing regulations. The EPA recognized the utility of multiple discharger variance s and their distinction from individual discharger variance s in the ‘‘Water Quality Guidance for the Great Lakes System: Supplementary Information Document’’ (SID;
EPA

– 820 – B– 95

– 001; March 1995). The EPA provided further clarification regarding multiple discharger variances in the ‘‘Water Quality Standards for the State of Florida’s Lakes and Flowing Waters; Final Rule’’ (75 FR 75790, December 6, 2010). More recently in March 2013, the EPA provided a set of frequently asked questions (FAQ) to assist states and tribes in developing appropriate justifications for

m ultiple discharger variances (see: Discharger

- specific Variances on a Broader Scale: DevelopingChapter 3 – Response Essays 8.a – Var – Gen Supp

Credible Rationales fo r V ariances t hat A pply t o Multiple D ischargers, EPA

– 820 –F– 13

– 012, Ma rch 2013 ( http://water.epa.gov/scitech/swguidance/standards/upload/Discharger -s pecific -V ariances -o n -aBroader -S cale -D eveloping -C redible -R ationales -f or -V ariances -t hat -A pply -t o -M ultiple -D ischarger sFrequently

- Asked

- Questions.pdf ). See als o section II.E (“What is E PA’s P osition on C ertain Public Comments?”) o f

th e preamble to the fin al rule for a d iscussion on other approaches t o s t r eamlining the WQS v ariance process.

For further discussion on EPA’s oversight role, streamlining, multiple discharger variances and water body variances see Essay 8.f.i

. For further discussion regarding variance term (time frame) and expiration dates see Essay 8.g.iii

.



### D. **Other, Non**

**- Variance** 

**- Specific Comments** 

As one comme nter noted, EPA's current proposal does not include clarifications regarding either temporary modifications or ambient

- based criteria. EPA notes that the use of either temporary modifications or ambient

- based criteria must be consistent with the CWA and Ti tle 40 of the Code of Federal Regulations ( CFR ) Part 131

.Chapter 3 – Response Essays 8.b – Var – Gen Opp



## Essay **8.b –**  **Var iances**  **: Gen**  **eral Opp**  **osition**

**A. Variance Regulations A**  **re N**  **ot Necessary** 

In 1977, an Office of General Co unsel decision set forth t he U.S. Environmental Protection Agency’s ( EPA’s ) legal position that it would be appropriate under the then existing regulations for a state to temporarily downgrad e a water quality standard ( WQS ) as it applies to a specific discharger rather than permanently downgrading the WQS for the entire wat er bod y or waterbody segment(s), so long as such
variance s met the substantive and procedural requirements for permanently downgrading a designated

use . Prior to today’s final rule, there were no regulations specifically authorizing a state to adopt a
variance t hat changed the applicable WQS. The Office of General Counsel decision concluded that while the then existing regulations did not specifically authorize a time

- limited revision to WQS for a single discharger, if the state satisfied the requirements for revising the WQS (downgrading the use), the state could chose to adopt a more protective revision to its WQS due to its limited time and scope. This practice became known as adopting a WQS variance. In its 1983 WQS rulemaking, EPA referred to
variances in Tit le 40 of the Code of Federal Regulations ( CFR ) section 131.13, a provision that provides states with authority to adopt various policies as part of their WQS. This provision indicate s that variance policies are general policies affecting the application and implementation of WQS, and that states and tribes may include variances policies in their state and tribal standards, at their discretion

. Even if a state or authorized tribe decided to adopt a policy for issuing variance, the adoption of individual variances are new or revised WQS and as such, section 303(c) of the Clean Water Act ( CWA ) requires EPA to review and approve or disapprove on the basis of whether they are consistent with the Act.

EPA disagrees with commenters stating that there is no reason to establish regulations for WQS
variances. EPA has heard from states, tribes, and stakeholders that there is confusion, inconsistency, and mixed interpretations about how, when, and w here WQS variances may be used appropriately. Where WQS variances could have led to significant water quality progress, a lack of a regulatory framework has, instead

, resulted in little or no progress. Where states and authorized tribes (and their stakehol ders) have more specificity in regulation regarding WQS variances such as those states and tribes covered by the “Water Quality Guidance for the Great Lakes System ” rulemaking at 40 CFR part 132, EPA has found that they have more success adopting and submi tting WQS variances compared to states and tribes without such specificity.

WQS variances are an underutilized tool nationally. Since starting to track WQS variance submittals in 2004, EPA has found that states/tribes in four regions have never submitted a variance as a WQS and states/tribes in 3 additional regions have not submitted a WQS variance since 2009. However, EPA has found that states and tribes covered by the Great Lakes Initiative ( GLI) are successfully adopting and submitting WQS variances. Since 2004, 93 of the 135 WQS variances submitted to EPA were from states in Region 5 (which is covered by the GLI). See also sections I.C and II.E of the preamble to the final rule for additional discussion on the e nvironmental issues the final rule addresses and for EPA’s rationale for including WQS variance provisions in the final regulations.

An example of an area of confusion under the prior regulations is whether WQS variances must adhere to all the same regulatory provisions as designated use changes, i ncluding whether or not a state must use the “attainability factors” to support a WQS variance for uses not specified in CWA section 101(a)(2)Chapter 3 – Response Essays 8.b – Var – Gen Opp

(e.g., public water supply use, agricultural use, irrigation use). Comments that asserted there was no need for a specific WQS variance regulation in effect reflected the need for a regulation specifically for WQS variances. The comments often disputed that there were existing federal requirements applicable to the adoption of WQS variances or that WQS variances requ ired EPA approval. Those positions are evidence of the confusion surrounding the existing requirements regarding the adoption of WQS variances. They are also contrary to EPA’ s interpretation of its regulations for over the past 30 years. The final rule wil l remove confusion regarding the status of WQS variances as acceptable revisions to WQS and the requirements for adopting WQS variances and submission to EPA for review and approval.

After decades of experience with WQS variances without specific regulation, EPA believes that codifying expectations for WQS variances will provide greater transparency, regulatory certainty, and national consistency to the WQS variance process. The final rule will significantly reduce confusion and mixed interpretations about how, when, and where WQS variances may be used. The regulation will also provide a strong signal to states, tribes, and the public that the legitimate use of WQS variances c an ult imately improve water quality. By providing specific regulatory provisions that articulate both the flexibilities and accountability expectations of WQS variances, states, tribes and the public will have a consistent and transparent means to discuss strategies to incrementally improve water quality, which will remove barriers to the appropriate use of WQS variances and allow states and tribes to better address water quality challenges. The preamble to the final rule contains additional information abo ut the need to establish WQS variance regulations.



### B. Limits S **tates’ Ability**  **and F lexibilities**  **to U**  **se W ater**  **Q uality**  **S tandards**  **Variances**

WQS variances are intended to be used by states and authorized tribes whe n applicable designated uses are not attainable in the near

- term but may be attainable in the future

. States and authorized tribes

may use one or more WQS variances to require incremental improvements in water quality leading to eventual attainment of the ultimate designated use . If a state or authoriz ed tribe believes the current designated use in not appropriate, the state or authorized tribe should not seek a WQS variance, but instead perform the required analysis ( i.e., a use attainability analysis ( UAA ) for CWA 101(a)(2) uses or a “use and value” d emonstration for non

- 101(a)(2) uses ) to determine the appropriate designated use for the water body. In such a case, a WQS variance is not an appropriate WQS tool because time is not the
issue with respect to attainability; rather a WQS variance is only ap propriate when the state or authorized tribe believes the current designated use may be attainable, but needs time to implement adaptive management activities or wait for conditions to change such that the designated use becomes attainable.

Commenters sugg est this final rule will limit rather than promote the use of WQS variances because some states already have WQS variance policies, and the new regulations may limit or prohibit some practices articulated in those policies. Some commenters identified pract ices that are not consistent with existing requirements regarding adoption of WQS variances and the need for EPA review and approval. To the extent current state policies are inconsistent with the current requirements regarding adoption of WQS variances (as new and revised WQS), which demonstrates the need for specific regulations articulating the requirements for the adoption of WQS variances. Where state s and authorized tribes have binding WQS variance policies and/or procedures inconsistent with today’s rule, those states and authorized tribes will need to revise such policies and/or procedures as necessary to be consistent with the federal regulations if the state or authorized tribe wants to continue to adopt WQS variances

. This should occur prior to, or simultaneously with, adopting the first WQS variance , consistentChapter 3 – Response Essays 8.b – Var – Gen Opp

with the timeframe described in the effective date discussion in section I.E of the final preamble . S tates, authorized tribes, and stakeholders will benefit from this final rule even if state or tribal variance policies differ from the WQS variance regulations at section 131.14 because the requirements for EPA approval of a WQS variance are now clearly articulated. A clear initial understanding of EPA expectations for WQS variances has the potential to save states, authorized tribes, and stakeholders time and resources when preparing WQS variances and supporting documentation. P otential revisions to state or authorized tribal variance policies resulting from this final rule should not result in undue burden because such a revision would only need to occur once. EPA estimates the burden and cost of revising variance policies in its economic analysis (EA) of this final rule which can be found in docket number EPA

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Commenters ex pressed concerns about a lack of flexibility in the proposed WQS variance regulations. In response to these comments, EPA made several substantive revisions to the rule to provide additional flexibility to states and authorized tribes. Chief among them was to eliminate the 10

- year maximum WQS variance term. The final rule does not specify a maximum WQS variance term, and instead allows the state or authorized tribe to specify the WQS variance term provided it is adequately justified in the supporting docume ntation that must be submitted to EPA with the WQS variance for review and approval or disapproval. In addition, the final rule allows state s and authorized tribe s to express the highest attainable condition (HAC) in three different ways, provides addition al clarity on the type of demonstration needed for a WQS variance for a use or sub

- category of a use not specified in CWA section 101(a)(2) , allows state s and authorized tribe s to adopt subsequent WQS variance s if justified, and add s additional water body types that may qualify for a WQS variance to i mplement restoration
activities.

O ne comment asserted that EPA’s regulation would “effectively federalize” state policies. EPA is not federalizing state policies. EPA is setting minimum federal requirements for WQS variances to establish a level playing field for all states. States continue to have full discretion whether to adopt WQS variances. There is no federal requirement to adopt WQS variances.

With regard to the comment requesting what constitutes a “stru ctured scientific analysis,” EPA directs the commenter to EPA’s previous guidance in the “Water Quality Standards Handbook” ( http://water.epa.gov/scitech/swguidance/standards/handbook/index.cfm ) as well as UAA case studies on EPA website at http://water.epa.gov/scitech/swguidance/standards/uses/uaa/

. EPA notes that, as described by the commenter, Na tion al Pollutant Discharge Elimination S ystem ( NPDES ) Permit DMR can be useful in informing a UAA; however, it is unlikely that discharge monitoring report data alone will be sufficient to support a demonstration based on one of the six factors in section 131.10(g) or the new restoration factor in section 131.14. See also EPA’s response essay for 8.g.vi.



### C **. W ater**  **Q uality**  **S tandards**  **V ariance**  **s D o**  **N ot**  **R esult in**  **W ater**  **Q uality**  **I mprovements/**  **S end**  **M ixed**  **M essages** 
EPA disagrees with commenters’ assertions that WQS variances will not lead to water quality improvements and attainment of designated uses and/ or send mixed messages. The final rule includes several provisions to ensure that states and authorized tribes use WQS variances appropriately to make progress toward achieving designated uses. The same incentive for incremental progress does not exist in the context of a designated use removal. Furthermore, EPA disagrees with commenters asserting that the final rule will not result in pollutant reductions by the discharger(s) to whom a WQS variance is applicable. Because the this final rule requires the state or authorized tribe to specify the HAC as the interim WQS, and the permitting authority must develop enforceable permit requirements consistentChapter 3 – Response Essays 8.b – Var – Gen Opp

with the interim WQS of the WQS variance (the NPDES regulation requires all NPDES permits to derive from and comply with all applicable WQS ( section 122.44(d)), the NPDES permit will include enforceable permit requirements that will lead to the highest water quality attainable as identified in the WQS variance process . In such cases, the state and authorized tribe may work with their permittees to identify the highest attainable effluent condition

. The permitting authorit y will then derive water quality

- based effluent limits ( WQBELs ) and permit conditions based on the WQS variance and may set a schedule, if appropriate for attaining the WQBELs

. States and authorized tribes have the discretion to set the term of the WQS var iance according to the needs of the particular situation provided it is justified (see the preamble of the final rule for more discussion on setting the term of a WQS variance). See the s ection II. E of the preamble to the final rule and EPA’s response to code 8.f.ii – Variance Applicability – Permitting & 303(d) for more information about how WQS variances are implemented in NPDES permits. In addition, the final rule requires states adopting WQS variances applicable to a water body or waterbody segment to identify and document any cost

- effective and reasonable best management practices (BMPs) for nonpoint sources (NPS ) that could be implemented to make progress towards attaining the underlying designated uses. This provision is intended to encourage NPS controls, which many commenters correctly identified as important to improving water quality and ultimately attaining WQS

. EPA does not agree with those comment s that asserted that WQS variances will not lead to any NPS progress. For further discussion of how today’s rule addresses NPS to make environmental

progress, see EPA’s response to code 8.g.v. – Variance Submission Requirements : Identification and Documentation of BMPs for NPS

.
A WQS variance is environmentally preferable to removing the designated u se because the WQS variance is limited to a particular period of time, particular pollutants or pollutant parameters, and locations or dischargers. Instead of states or authorized tribes choosing to remove designated uses where the demonstration can be mad e that the designated use is not attainable due to at least one of the six factors listed in section 131.10(g) even in circumstances where the designated use is not attainable due to a single pollutant, states will now have more flexibility to utilize WQS variances. Instead of removing the designated use, a WQS variance can provide a regulatory mechanism to retain the designated use by providing time

- limited relief to the discharger for the one pollutant that includes requirements to reduce pollutant loads to the water body. For, example, whereas prior to this rulemaking a state or authorized tribe may have felt pressure from a discharger to remove a designated use because the discharger would be unable to comply with a WQBEL for a particular pollutant due t o the substantial and widespread social and economic impacts it would have created, that state or tribe will have a WQS variance option that may provide the sought after relief.

In addition, the listing of waters as impaired under CWA section 303(d), and s ubsequent development and implementation of total maximum daily loads ( TMDLs ) for those waters, remain important regulatory tools to make progress toward attaining designated uses. While WQS variances affect the development of WQBELs for the discharger(s) specified in the WQS variance and are intended to support restoration, they do not affect the underlying designated use and criterion that apply to the rest of the water body. That is, WQS variances do not change the long term goals for the water body. TMDLs, on the other hand, are developed to achieve the long term goals of the water body and are thus based on the underlying designated use. Because the purposes of these two tools are different, milestones for progress in a WQS variance are not a replacement for establishing a TMDL for impaired waters. However, where WQS variances are approved for multiple dischargers on the same impaired water (or there is an approved WQS variance applicable to a water body or waterbody segment ) and development of a TMDL is projected, the state/tribe has some flexibility to consider the relative priority of that particular TMDL while incremental progress is made through the variance(s). See EPA’s response to codeChapter 3 – Response Essays 8.b – Var – Gen Opp

8.f.ii – Variance s Applicability – Approved Variances and P ermitting and 303(d) for additional discussion regarding TMDLs, CWA section 303(d) listing, and WQS variances.

One commenter expressed frustration with several perceived means of avoiding water quality

- based pollutant controls and wondered why EPA felt WQS variances were under

- utilized in this overall context. The progress EPA seeks is a clear path to achieving attainable improvements in water quality, and the WQS variance process can be a mechanism for both identifying what is attainable and implementing

s ubsequent controls



### D. **Setting S tandards for**  **U natt**  **ainable C**  **riteria**

In contrast to the commenters above who believe that utilization of WQS variances will fail to lead to water quality improvements and attainment of designated uses because not enough is bein g done to force discharger progress

, different commenter s suggest (or imply) that utilizing WQS variances will, instead, lead to a more widespread application of “unattainable” standards for which there is no existing technology available. EPA disagre es wi th the conclusion that at least one commenter reach es, that the likelihood that unattainable standards will be come more widespread because WQS variances will not hold up against legal challenges. This rulemaking is, in fact, intended to strengthen a state’s or authorized tribe’s ability to utilize WQS variances when duly adopted consistent with the requirements of the rule. The goal of the CWA is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. The purpo se of a WQS variance is to allow states and authorized tribes to make incremental progress toward attaining designated uses that are not currently attainable but may be attainable in the future. When used appropriately, WQS variances can provide a regulato ry mechanism to improve water quality when a designated use cannot be attained in the near term , but a state or tribe wants to maintain the designated use as a long term goal.

In regards to the statement that WQS variances will lead to the application of “ unattainable standards” because there is no existing technology available, EPA disagrees . T he lack of technology to treat or

remove a pollutant in a wastewater discharge to levels necessary to meet applicable WQS in and of itself does not justify continuat ion of the discharge. EPA’s regulation provides a clear basis by which a state or authorized tribe can justify that a designated use is not attainable. If there is a concern that the designated use cannot be attained because there is no existing technology to meet the required WQBEL derived from the WQS, then the state or authorized tribe could evaluate , for example, whether there would be a substantial and widespread economic and social impact if the facility were to close because it cannot obtain or compl y with an NPDES permit. Where the state or authorized tribe can show that there would be a substantial and widespread economic and social impact, then a WQS variance may be justified and approvable if all the other requirements of EPA’s regulation are met.



### E. **Other**

**Infrastructure Funding**

Comment s asserting that infrastructure funding would not be available if a discharger receives a WQS variance do not provide support for such claims. EPA knows of no reason why it would necessarily be the case that WQS vari ances would impact the availability of infrastructure funds. As mentioned in subsection B of this Essay, EPA estimates the burden and cost of revising variance policies in its EA of this final rule which can be found in docket number EPA

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**W ater**  **Q uality**  **S tandards**  **Variance s**  **and the Permit as a Shield**

EPA disagrees with commenters asserting that a WQS variance eliminates the shield provided by a n NPDES permit. A WQS variance is an interim WQS that is implemented through the NPDES permit and

ser ves as the basis for WQBELs and permit conditions

. Once an NPDES permit is issued, the permit tee would have the protections that are provided pursuant to CWA s ection 402(k) and s ection 122.5 (a) of the NPDES permitting regulations if the permittee complies with all of the terms and conditions in its NPDES permit . The final rule does not address the legal shield a permittee obtains through an NPDES permit

.

**Variances a**  **re “Regulatory in Nature”**

EPA does not agree with the commenter that asserts that WQS varianc es are not “regulatory in nature .” As discussed in subs ection A of this essay, EPA’s longstanding position is that individual WQS variances are revisions to WQS, which are legally binding, and require EPA review and approval. The commenter suggest s that EPA contradicts itself by asserting that EPA’s previous rulemaking indicated that regulations pertaining to WQS variances are not necessary because WQS variances are not “regulatory in nature.” Although EPA disagrees with the comment that the Agency is contradicting itself, t he commenter is correct in that EPA did not finalize proposed regulations establishing requirements for WQS variances (47 FR 49234
, October 29, 1982 ). When EPA finalized its 1983 rule, EPA affirmed many of the basic concepts of a WQS variance articulated in today’s final rule, but the Agency ’s view in 1983 was that reliance on the existing regulations (as discussed in the 1977 OGC decision) provided sufficient regulatory basis for issuance of WQS variance s.

In particular

, the pre am ble to the 1983 final rule (48 FR 51403

, November 8, 1983), explained that “ EPA has approved State

- adopted variances in the past and will continue to do so, each individual variance is subject to public review, each WQS variance must be based on a demonstr ation

... and that EPA will review for approval individual variances, not just an overall State variance policy. ” These policy positions, along with the 1977 OGC decision formed the basis for EPA’s review and approval of WQS variances in the intervening years

. Since the 1983 rulemaking, WQS variances have been underutilized. As explained in the preamble of the proposed rule (78 FR 54531 , September 4, 2013 ) EPA has heard from states, tribes, and stakeholders that there is confusion, inconsistency, and mixed int erpretations about how, when, and where WQS variances may be used appropriately. EPA now concludes that specifying requirements for WQS variances in regulation will encourage the utilization of WQS variances by providing greater regulatory certainty, natio nal consistency and transparency to the WQS variance
process. Therefore, w ith the final rule at section 131.14 the Agency is exercising its authority under CWA section 501(a) to prescribe such regulations EPA determines as are necessary to carry out the CWA

.

**Suggested Changes to**  **Title 40**  **of the** C ode of F ederal R egulation **Section 131.20(a)** 

EPA addresses the comments regarding suggested changes to 40 CFR 131.20(a) in Essays 6.e

, 6.f

, and 6.g.

**Technology**

**- Based L**  **imits**

With regard to comments on technology

- bas ed limits, see EPA’s response in Essay 8.f.iii.Chapter 3 – Response Essays 8.c – Var – Definition



## Essay 8.c **– Var**  **iances: Proposed Definition** 

**A. General**

The U.S. Environmental Protection Agency’s ( EPA’s ) final rule defines a “water quality standards variance” (WQS variance) a s a time

- limited designated use and criterion for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable condition (HAC) during the term of the WQS variance. The definition encompasses both discharger(s)

- specific WQS vari ances and WQS variances to a water body or waterbody segment. In the final rule, EPA has clarified the different requirements for these two types of WQS variances. See Response Essay 8.f.i for more discussion on the distinction between types of WQS varianc es and a discussion of EPA’s authority to allow WQS variances for a water body or waterbody segment

. See section II.E of the final rule preamble for a full discussion on EPA’s legal authority related to WQS variances as well as Response Essay 8.m.

EPA ackn owledges the support for the proposed definition. Based on comments, EPA revised the proposed definition in the final rule to make EPA’s intended meaning clearer. The final rule definition clarifies that EPA allows WQS variances for water quality parameter s (e.g., dissolved oxygen) in cases where the water quality parameter may not be considered a “pollutant.” The rule also clarifies that the “specified time period” described in the propose d rule is the “term of the WQS variance.”



### B **. Highest Attainable C ond**  **ition**

EPA disagrees with the commenter that suggested the HAC for a WQS variance is same as “highest attainable use” (HAU), and that EPA should include a definition of HAC in rule. The HAU is explicitly defined in section 131.3(m) as “ the modified aquatic life, wildlife, or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, based on the evaluation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use and any other information or analyse s that were used to evaluate attainability ...” In contrast, EPA has explained in guidance that it considers the term HAC to mean “the condition that is both feasible to attain and is closest to the protection afforded by the designated use and criteria.” 1 T he HAU applies only t o Clean Water Act ( CWA ) section 101(a)(2) uses and subcategories of such uses and must be determined by a use attainability analysis (UAA) using at least one of the six factors specified in section 131.10(g) and other information used to evaluate attainability

. The HAC

, however

, applies to a WQS variance for either 101(a)(2) or non

101(a)(2) use s 2 and is used to form the basis of the interim requirements of the WQS variance

. EPA concluded that, for WQS variances, identification of the HAC is appropriate regardless of whether or not the WQS variance is to uses specified in CWA section 101(a)(2) (or subcategories of such uses) or to non

101(a)(2) uses. This is because for WQS va riances, unlike a “permanent” change to the designated use, the state or authorized tribe has intentionally made the decision to keep pursuing progress toward achieving the underlying WQS and identifying the HAC is a measurable step to ensure progress is m ade. See response essay 5.h. for discussion about non

- 101(a)(2) uses. Further, it is not necessary for EPA to

1 http://water.epa.gov/scitech/swguidance/standards/upload/Discharger

- specific

- Variances

- on -a- Broader

- Scale

Developing

- Credible

- Rationales

- for

- Variances

- that

- Apply

- to

- Multiple

- Dischargers

- Frequently

- Asked

- Questions.pdf

2 The final rule at section 131.3(q) defines “non

- 101(a)(2) use” as any use unrelated to the protection and propagation of fish, shellfish, wildlife or recreation in or on the water.Chapter 3 – Response Essays 8.c – Var – Definition

provide a formal definition of HAC in the final rule because the final requirements at
section 131.14(b)(1)(ii) outline the options available to a state or authorized tribe to articulate the HAC. See the options available to states and authorized tribes to articulate the HAC for a discharger(s)

- specific WQS variance at section 131.14(b)(1)(ii)(A) and for a WQS variance applicable to a water body or waterbody segment at section 131.14(b)(1)(ii)(B).

S tates and authorized tribes are not required to i dentif y the HAC through a UAA
, although such an analysis could be helpful. However, the final rule at section 131.14 (b)(2)(i) does require states and autho rized tribes to submit a WQS variance with supporting documentation to justify the adoption of a WQS variance. For a WQS variance to a 101(a)(2) use

, states and authorized tribes must include a demonstration that the use and criterion are not feas ible to attain based on one of six factors in
section 131.10(g)

, or a new factor related to lake, stream, or wetland restoration specified at
section 131.14(b)(2)(i)(A)( 2). For a WQS variance to a non

- 101(a)(2) use, states and authorized tribes must include docume ntation justifying how t he state or authorized tribe consider ed the use and value of the water for those uses listed in section 131.10(a) and appropriately supports the justification for the WQS variance and its term. See also Response Essay 8.g.iv for a d iscussion on WQS variances to non

101(a)(2) uses. See also Response Essay 8.g.iii and s ection II.E, subsection “What is EPA’s Position on Certain Public Comments?” in the preamble to final rule for additional discussion on the comparison of the level of ri gor related to WQS variance s as compared to UAA s required for changes to 101(a)(2) uses.

EPA disagrees with commenters suggest ing that EPA should include in the definition of a WQS variance language that specifies the HAC as the “condition during the specified time period that the State determines is highest attainable.” A WQS variance is a new or revised WQS subject to EPA review and approval or disapproval, requires a public process for adoption , and must be reviewed by the sta te or authorized tribe on a triennial basis. The CWA assigns EPA an oversight role of reviewing and approving or disapproving state and authorized tribal WQS (CWA section 303(c)). Specifying in the rule that the
HAC is what “the State determines is highest attainable” is inconsistent with the oversight role provided in the CWA. See also response below to comments suggesting that the rule should not define a WQS variance as a WQS subject to EPA review and approval.

EPA agrees with comment s stating that the d efinition of HAC should include a requirement “...to specify and verify the highest achievable water quality possible during the term of the variance

. ” The definition of a WQS variance in the final rule at section 131.3(o) does not stand alone. The final rul e at section 131.14 specifies the information states and authorized tribes must submit to EPA for any WQS variance
, including interim requirements that reflect the HAC, and supporting documentation justifying the WQS variance term.



### C **. W ater**  **Q uality**  **S tandards**  **V ariances**  **are W ater**  **Q uality**  **S tandards** 

EPA does not agree with comments suggesting the deletion of the regulatory text from section 131.14 that pertains to EPA’s position that WQS variances are WQS subject to EPA review and approval or disapproval

. The legal basis and reasons why a WQS variance is a WQS are set forth in detail in Response Essay 8.f.i. In addition, for the reasons set forth in Response Essay 8.f.i, EPA does not agree with the commenter who requests that EPA consider individual WQS variances as not to be WQS similar to individual compliance schedules (CS) which EPA does not consider to be WQS. A CS for water quality

based effluent limits (WQBELs) in National Pollutant Discharge Elimination System ( NPDES ) perm its is specified in the permitting regulation at section 122.47 and is not itself a WQS. The final rule does not modify any permit CS requirements specified at section 122.47. In addition, as described in s ection II. F ofChapter 3 – Response Essays 8.c – Var – Definition

the preamble for the final rule, EPA has streamlined the regulatory text related to compliance schedule authorizing provisions (CSAPs) to clarify that, although a CSAP is a WQS, a CS itself is not a WQS. See Response Essay 8.e for additional discussion on the distinction between CS and WQS variances.

For the same reasons discussed above, EPA also does not agree with the commenter who suggests language so that only variance policies and procedures are considered WQS subject to EPA review and approval or disapproval

. See also Response Essay 8.f.i for a discussion on why a WQS variance itself is a WQS subject to EPA action under CWA section 303(c).



### D **. Effective D**  **ate**
In response to comments related to deletion/inclusion of language in regulatory text as proposed: “Any such WQS variances adopted after [effective date of the final rule] must be consistent with this regulatory section,” EPA is no longer including such language in the final rule tex t. Instead

, EPA describes, in s ection I.E, “ When Does this Action Take Effect? ” and in s ection II.E, subsection “What is EPA’s Position on Certain Public Comments?

, ” the Agency’s position on when the regulations are effective in general and additional discussion related to existing or future WQS v ariances as well as state and authorized tribal WQS variance policies and procedures.

EPA also notes that any WQS variance that is submitted after the final rule is in effect must be approved under CWA section 303(c) before it is the applicable WQS for CWA purposes. EPA’s regulations were revised in April 2 000 (65 FR 24653; April 27, 2000) to clarify that WQS adopted after May 30, 2000 did not become the applicable WQS for CWA purposes until EPA approves such WQS

. See Response Essay 8.f.i for discussion on why it is important for the time

- limited WQS varianc e to be recognized as the applicable WQS for the specified CWA purposes (e.g., NPDES permitting).



### E **. Adaptive M**  **anagement A**  **pproach**

In response to comments asking for EPA to be forthcoming or define what “adaptive management approaches,” EPA expects states a nd authorized tribes to implement

, EPA notes that the Agency is not requiring “adaptive management approaches” as part of the final rule and EPA has therefore concluded that it is not necessary for the rule to contain such a definition

. As described in the preamble to proposed rule, o ne of the stated purposes of a WQS variance is to allow time to implement adaptive management approaches that make progress towards attaining the underlying designated use and
criterion. Adaptive management is a concept generally recognized as exploring alternative ways to meet management objectives, predicting the outcomes of alternatives based on the current state of knowledge, implementing one or more of these alternatives, monitoring to learn about the impacts of management actions, and using the results to update knowledge and adjust management actions. 3 EPA believes that a daptive management can be useful in the context of a WQS variance because it involves
continuous feedback between the interpretation of new information an d management actions that can be key to targeting actions where they will actually be effective.

3 Murray, C. and D.R. Marmorek. 2004. Adaptive management: A science

- based approach to managing ecosystems in the face of uncertainty. In : N.W.P. Munro, T.B. H erman, K. Beazley and P. Dearden (eds.). Making Ecosystem

based Management Work: Proceedings of the Fifth International Conference on Science and Management of Protected Areas, Victoria, BC, May, 2003. Science and Management of Protected Areas Association, Wolfville, Nova Scotia (as cited in the U.S. Department of Interior’s Technical Guide: Adaptive Management, 2009 edition).Chapter 3 – Response Essays 8.c – Var – Definition

A n adaptive management approach for a WQS variance should involve a discernible sequence of specific actions with the potential to achieve the underlying desig nated use and criterion

. Each step in the process should inform or be a necessary predecessor to the next set of decisions to make progress towards the underlying designated use and criterion. In addition, each step in the process should conform to general ly accepted timeframes for implementing and e valuating each management action (i.e., there should b e no unjustified periods of time that do not involve planning an action, implementing an action, or evaluating the outcome of an action ).



### F **. Including Both “D**  **esignated Use” and “C**  **riterion” in the D**  **efinition**

Commenters expressed concern regarding WQS variances as being defined as a “time

- limited designated use and criterion.” C ommenter s suggest that dischargers only have diffic ultly complying with
a criterion for a particular pollutant and that EPA’s inclusion of designated uses in the definition of a WQS variance confuses WQS variances with use changes under section 131.10. Commenters agree with EPA that a WQS variance should maintain the underlying use and cr iterion as the applicable WQS for other dischargers, for waterbody assessment, and for t otal m aximum d aily l oad ( TMDL ) development. Commenters suggest that use changes or site

- specific criteria should be used when the situation is not discharger or pollutant specific.

After consideration of comments, EPA did not remove the term “designated use” from its definition of WQS variance. The purpose of ambient water quality criteria, as set forth in sections 131. 2, 131.6 and
131. 11
, is to protect designated uses. EPA agrees with commenters that dischargers often desire a WQS variance because they have difficulty complying with a criterion for a particular pollutant. However, adopting a less stringent criterion would no longer protect the underlying designated use as required by
sections 131.2, 131.6 and 131.11

. EPA cannot dissociate the concepts of criteria and the designated uses they protect. Thus, an important legal construct for a WQS variance is that it provides for a revised (usually less stringent ) criterio n or criteria that protects a revised designated use for a limited amount of
time

. EPA notes th at if a revised criterion continues to protect the underlying use, the state c ould instead adopt and seek approva l of a site

- specific criterion.

To address poten tial confusion about how designated uses relate to WQS variances

, EPA modified the

way states and authorized tribes must articulate the interim requirements of a WQS variance. First, EPA separates the requirements for WQS variances to individual dischargers and WQS variances for a water body or waterbody segment, and expressly provides states and authorized tribes the option for discharger s to describe the HAC without the need to articulate a time

- limited designated use ( section 131.14(b)(1)(ii)(A))

. This separation allows EPA to retain the requirement that states and authorized tribes articulate both a time

- limited designated use and criterion when the scope of the WQS variance pertains to entire water body or waterbody segment because EPA recognizes the importance of identifying a time

- limited designated use when a WQS variance applies to an entire water body or waterbody segment ( section 131.14(b)(1)(ii)(B) ). See s ection II.E. of the preamble to the final rule for EPA’s rationale for the regulatory o ptions provided at section 131.14(b)(1)(ii) (A) and (B).

With regard to concerns about the applicability of the underlying use and criterion during the term of a WQS variance, EPA’s final preamble and rule clarifies that the time

- limited designated use and criterion applies only for purposes of developing NPDES permit limits and requirements under 301(b)(1)(C), and for issuing certifications under CWA section 401. States and authorized tribes must retain the underlying designated use and criteria in their st andards (see section 131.14(a)(2) and (3)). Taken together, these two provisions mean that states and authorized tribes must continue to use the underlying designatedChapter 3 – Response Essays 8.c – Var – Definition

use and criterion for other CWA purposes such as assessing attainment of designated uses, listing waters as impaired under CWA s ection 303(d), and developing TMDLs, even with an EPA

- approved WQS variance regardless of the scope of the WQS variance.

In response to the commenter’s suggestions that WQS variances are not appropriate for a larger s cope (e.g., WQS variances applicable to a water body or waterbody segment) see Response Essay 8.f.i.



### G. **Use of W**  **ater Q**  **uality S**  **tandards V**  **ariances S**  **hould B**  **e “ S**  **unsetting ”** 

EPA appreciates commenters’ support for the proposed WQS variance definition. However, EPA disagrees with commenters who suggest that use of WQS variance s should be “phased out.” As described in s ection I.C of the preamble to the final rule, p ollutants from large

- scale land use changes, extreme weather events, or environmental stressors rela ted to climate change can hinder restoration and maintenance of water quality. In addition, pollutants can be persistent in the environment and, in some cases, lack economically feasible control options. These challenges necessitate a more effective, flexi ble

, and practicable approach to meeting the WQS objectives of the CWA

. States and authorized tribes can use WQS variances to make progress toward attaining designated uses when they are not attainable or where there is uncertainty about the designated use s that are attainable. This final rule

creates a regulatory framework that ensures states and authorized tribes use WQS variances appropriately and effectively to address difficult water quality challenges.



### H **. Needing to “Comply” w**  **ith the D**  **efinition and Changes to**  **What I**  **s R**  **equired**

EPA disagrees with the commenter who asserts that if the “discharger has otherwise demonstrated entitlement to a variance for the reasons specified under existing state rules or 40 CFR § 131.10(g), for example, then there s hould be no need to insist upon compliance with these definitions. ” S ee s ection
II.E of the preamble of the final rule and Response Essay 8.m for discussion of EPA’s legal authority with regard to WQS variances. The discussion includes the rationale for why a WQS variance is time

- limited and how the construct of the “ highest attainable condition ” enables water bodies to serve the objective of the Act to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters

.

EPA disagrees with commenter s claiming a discharger (or state or authorized tribe) can demonstrate “entitlement to a variance for reasons specified under existing state rules. ” See response to comments explaining why all WQS variances are WQS subject to EPA re view and approval or disapproval under CWA section 303(c). S tate s and authorized tribes may adopt a WQS variance policy that is more stringent than the regulatory requirements under section 131.14 (s ee also discussion s ection IV. E and

s ection II.E, subsec tion “What is EPA’s Position on Certain Public Comments?” in the preamble to the final rule about when and how states and authorized tribes may need to reevaluate and/or revise their WQS to comply with this final rule ). EPA agrees with the comment that sta tes and authorized tribes do not need to have their own explicit WQS variance authorization provision, policy or procedure to adopt and submit WQS variance s to EPA for review and action.

EPA disagrees with comments asserting that the definition of a WQS va riance no longer requires a variance to be “ adopted consistent with the substantive and procedural requirements for downgrading a designated use.” Although not specified in the definition of a WQS variance at section 131.3(o) , the final rule at section 131.14 (b)(2) restricts the justification for WQS variance s to essentially the same factors that must be used to justify removal of designated use s. For uses specified in 101(a)(2) of the Act, section 131.14(b)(2)(i)(A) requires state s or authorized tribe s to demonstrate that the underlyingChapter 3 – Response Essays 8.c – Var – Definition

designated use is not attain able on the basis of at least one of the factors specified in section 131.10( g) ( or an additional factor related to waterbody restoration specified in section 131.14(b)(2) ( i)(B) ). For uses
not specified in s ection 101(a)(2) of the Act, section 131.14(b)(2) requires a state or authorized tribe to demonstrate how its consideration of the use and value of the water for those uses listed in
section 131.10(a) appropriately supports the WQS variance a nd term

.
The explanation in the 19 7 7 Office of General Counsel’s memorandum that the commenter ref erences explains that a WQS variance is “environmentally preferable” to permanently downgrading the standard for the entire stream. In this statement “the sta ndard” is the use and all the criteria adopted and approved to protect that use. The memorandum explains that a WQS varian ce is narrow er in that, even for a particular discharger, the variance only applies to the particular constituent

, the underlying

stan dard is in place for all other criteria , and the WQS variance is only for a limited time. EPA’s application of WQS variances to a water body or waterbody segment is consistent with the rationale in the memorandum. The application is still limited to the pollutant(s) at issue and is still time

- limited. EPA notes that in addition to finalizing a formal definition of “WQS variance” in section 131. 3 (o), EPA has also included several provisions that are specific to this type of WQS variance (see section 131.14(b)(2)(iii)) to ensure increased transparency and accountability

. Finally, it is worth noting that the 1977 OGC memorandum was issued interpreting the then current WQS regulations and how a state may decide to adopt a WQS variance consistent with tho se regulations. In this new rulemaking, EPA is promulgating a set of regulatory requirements specifically for variances. See also Response Essay 8.f.ii for a discussion of the use of WQS variances for purposes related to CWA section 401 certification.

EPA disagrees with the comment er that asserts the definition of a WQS variance should include a “requirement that the original water quality standard must be attained by a date certain.” As described
in s ection II.E for the final rule, the purpose of a WQS is to allow a state or authorized tribe time to make progress toward meeting the “original” (or “underlying”) designated use and criterion. A WQS variance can be particularly useful when a state or authorized tribe can make progress toward meeting the designa ted use and criterion, but the time required to attain the underlying designated use and criterion
is uncertain

. In such circumstances, the state or authorized tribe can adopt the HAC as the applicable WQS during the term of the WQS variance.

At the end of a WQS variance term, the state or authorized tribe can assess the feasibility of attaining the underlying WQS. If the state or authorized tribe determines that the underlying WQS is attainable but the permittee cannot immediately meet the WQBEL derived from the WQS, the permitting authority can decide whether to include a compliance schedule (CS) (where authorized) in the permit thereby providing time for the permittee to come into compliance with the effluent limits in its NPDES permit. (See CW A section [502(17)] for a definition of “Schedules of compliance” and Title 40 of the Code of Federal Regulations ( CFR ) s ection 122.47). Any such CS must include a final effluent limit based on the underlying WQS and must require compliance with the permit ’s WQBEL “as soon as possible.” In many cases, EPA expects that states and authorized tribes will identify a HAC for a WQS variance that is short of full attainment of the underlying designated use and criterion. When such a WQS variance expires, the state or authorized tribe can assess the attainability of the underlying designated use and criterion and either adopt another WQS variance using the new (more stringent) HAC , or it can allow the underlying designated use and criterion to resume as the applicab le WQS for the permittee.

EPA reminds the commenter that under the final rule the WQS variance applies only for purposes of developing NPDES permit limits and requirements under 301(b)(1)(C), and for issuing certifications under CWA section 401. The underl ying designated use and criterion remain in place as the applicableChapter 3 – Response Essays 8.c – Var – Definition

standard for all other CWA purposes including waterbody assessment under CWA sections 303(d) and 305(b) and for TMDL development. EPA believes that the full set of requirements under secti on 131.14 (e.g. requirements for reevaluation of the HAC through a public process) will ensure progress toward the underlying designated use and criterion while retaining the flexibility states and authorized tribes need to manage uncertainty when making p rogress toward attaining the underlying designated uses in challenging situations.



### I **. Thermal V**  **ariances**

EPA agrees with the commenter that thermal variances satisfy ing section 316( a ) are not subject to
section 131.14 as finalized. EPA has clarified this point by including a definition specific to “WQS variances” in the final rule under section 131.3(o) so that the public do not confuse WQS variances with permitting variances

.Chapter 3 – Response Essays 8.d – Var – Practicality



## Essay **8.d – Variances**  **: Where Variances May/May Not be Useful**

**A. General Support**

The U.S. Environmental Protection Agency ( EPA ) appreciates commenter s’ support for the final rule.



### B. **Variances S hould**  **O nly**  **Be A llowed**  **A s a “**  **Special E xception” or**  **u nder**  **“E xceptional”**  **C ircumstances** 

The commenter requested that water quality standards ( WQS ) variances should be granted only as a means to achieve the end of meeting the designated use and that WQS variances should be subject to scrutiny by EPA. EPA’s position is that the final rule is designed to, and will, accomplish what the commenter requested. The objective of authorizing the adoption of WQS variances is to provide time to improve water quality with the ultimate goal being to attain, if possible, the underlying WQS

. All WQS variances must be submitted to EPA for review and approval.

The final rule provides for s tates and authorized tribes to utilize WQS variances in specific
circumstances. F or a WQS variance to a designated use specified in Clean Water Act ( CWA ) section 101(a)(2) and subcategories of such uses, states and authorized tribes must demonstrate that the use and criterion are not feasible to attain on the basis of one of the factors listed in section 131.10(g) , the same factors that could be justified to remove those designated uses. T he final rule also includes a new
restoration

- related factor in section 131.14(b)(2)(i)(A)(2) so that states and authorized tribes may grant a WQS var iance for environmental restoration projects such as removing a dam that will help restore water quality in the long term, but may temporarily result in nonattainment of WQS while the restoration project is active

. For WQS variances to non

- 101(a)(2) uses, today’s rule specifies that states and authorized tribes must document and submit a use and value demonstration consistent with section 131.10(a) (see section II.B of the final rule for additional discussion on use and value demonstrations). These limitati ons on WQS variances are generally analogous to the limitations for removing designated

uses. Because a WQS variance is an interim designated use and criterion reflecting t he highest attainable condition (HAC)

, applies only to specific pollutants or pollutant parameters

, specific dischargers or water bodies , and for a specific amount of time, a WQS variance can be an environmentally preferable option to permanently removing a designated use. The final rule also requires states and authorized tribes to

reeva luate variances longer than five years at least every five years, to include a provision in the WQS variance that any more stringent highest attainable use (HAU) later identified shall be the applicable WQS variance, and require states to include a provision in the WQS variance that the WQS variance shall no longer be the applicable WQS if the reevaluations do not take place as specified. Along with the requirement that EPA review and approve all WQS variance before they can be used for CWA purposes, EPA be lieves that final rule ensures WQS variances will be used appropriately and only in the specific circumstances outlined in section 131.14

.



### C **. EPA S hould**  **Allow S tate**  **F lexibility**  **Such a**  **s Multiple D ischarger Variances** 

The final rule provides for a state or authorized tribe to adopt one WQS variance that applies to multiple dischargers so long as the WQS variance is consistent with the CWA and section 131.14

. Multiple discharger WQS variances can serve as a significant administrative streamlining mechanism wh en used in situations where several dischargers are experiencing the same challenges in meeting their waterChapter 3 – Response Essays 8.d – Var – Practicality

quality

- based effluent limits ( WQBELs ) for the same pollutant. The preamble of the final rule discusses how states and authorized tribes might struc ture a multiple discharger variance. EPA has also developed a list of frequently asked questions (FAQs) addressing when a multiple discharger WQS variance may be appropriate and how a state or authorized tribe can develop a credible rationale for this type of WQS variance ( Discharger

- specific Variances on a Broader Scale: Developing Credible Rationales for Variances that Apply to Multiple Dischargers , EPA

- 820 -F- 13

- 012, March 2013). The preamble of the final rule also discusses other ways for states and auth orized tribes to streamline their WQS variance process such as adopting an administrative procedure that fulfills the WQS submittal and review requirements and specifies that if the state or authorized tribe follows the procedure, the WQS variance is legal ly binding under state or tribal law. The commenters should refer to the preamble of the final rule for more information.



### D. Clarification **on U**  **se of**  **a V**  **ariance Wh**  **en N**  **atural C**  **ondition s A**  **re a C**  **ause of N**  **onattainment of W ater**  **Q uality**  **S tandards** 

A water body may not m eet the criteri on for a pol lutant or pollutant parameter

, but the state or authorized tribe may nonetheless believe the water body may be attaining the designated u se. One possibility is that the criterion may be overly stringent due to site

- specific factors

. Another possibility is that the water body has an unusual concentration of the pollutant or pollutant parameter that is naturally present in the water body

.
Natural condition is a term used to describe the quality of surface water untouched by hu man

- caused pollution or disturbance. How a state or authorized tribe determines whether or not a n atural condition affect s attainment of a WQS is beyond the scope of the final rule. In such a circumstance, a WQS variance would generally not be the appropri ate long

- term tool to address criterion exceedance because such a condition is unlikely to change whereas the WQS variance is time

- limited. The intent of a WQS variance is to make incremental progress toward attaining the underlying designated use when the underlying designated use is not attainable in the near term but may be attainable in the future. If the state or authorized tribe has compelling evidence that natural conditions prevent attainment of the designated use but is uncertain about the possible extent of human

- caused contribution

, the state or authorized tribe may choose to adopt a short

- term (e.g., 5 years or less) WQS variance to provide time to perform the studies necessary to identify the contributors to t he criteri on exceedances and more definitively determine whether or not the designated use is attainable over the long

- term

. If , based on the evidence from the studies, a state or authorized tribe concludes the water body exceeds the
criterion due to a nat ural condition s , the state or authorized tribe may choose to account for the natural condition by modifying the designated use based on section 131.10(g)(1) b ecause the natural condition is unlikely to change

. If studies demonstrate that the water body is attaining the designated use despite exceedance of the current criterion , the state or authorized tribe may instead choose to develop a site

specific criterion that accounts for the unique characteristics of the water body. EPA has developed technical materials to aid states and authorized tribes in developing scientifically defensible natural conditions

- based site

- specific criteria for temperature, dissolved oxygen and pH ( http://water.epa.gov/scitech/swguidance/standards/library/upload/natural

- conditions

- framework

2015.pdf )

. EPA disagrees with the com menter that requests that a WQS variance be used “to allow further excursion of the criterion beyond the natural condition if uses can still be protected .” First, if the state or authorized tribe identifies the natural condition correctly, that will be the level at which the “uses can still be protected.” A less stringent level would not be protective. Second, section
131.14 (b)(1)(ii) prohibits the requirements of a WQS variances from lowering currently attained water quality (with one exception related to the factor associated with dam removal and wetland, lake, orChapter 3 – Response Essays 8.d – Var – Practicality

stream restoration). Therefore, if the water body is currently achieving the water quality associated with the natural condition, then the state or authorized tribe cannot identify a less stringent level as the HAC for the term of the WQS variance.



### E. **EPA S hould**  **S pecify**  **T hat**  **Seasonal W ater**  **Q uality**  **S tandards**  **V ariances**  **A re**  **A llowed** 

The final rule does not pre clude a seasonal WQS variance. Rather than specify all scenario s where a WQS variance may be acceptable, EPA chose to specify in regulation the minimum requirements of a WQS variance. EPA believes that specifying the basic requirements of a WQS variance in this final rule provides national consistency and accountability for WQS variances while providing states and authorized tribes the flexibility needed to address their unique water quality challenges.



### F. Should **O nly**  **Allow V ariances to**  **Make P rogress**  **, N ot**  **L et**  **P ermittees**  **Delay M**  **eaningful Progress** 

EPA agrees with comments indicating that a WQS variance should be used to make feasible progress towards attainment of designated uses and not to “let permit holders indefinitely defer or delay meaningful progress towards attainment.” The final rule includes several provisions to ensure states and authorized tribes use WQS variances to make feasible progress toward achieving designated uses. The final rule requires a WQS variance to include interim requirements representing the HAC of the water body or water body segment applicable throughout the term of the WQS variance in a quantifiable

manner

. The final rule requires states and authorized tribes to include in a WQS variance a statement providing that the requirements of the WQS variance are either the HAC identified at the time of the adoption of the WQS variance, or the HAC later identified during any reevaluation whichever is more stringent. The final rule requires that any WQS variance with a term greater than five years specifies a reevaluation frequency no less f requently than every five years, requires the results of the reevaluation

to be submitted to EPA within 30 days, and requires the WQS variance to contain a provision that the WQS variance will no longer be the applicable WQS if those requirements are not f ulfilled . T he final rule specifies the factors that states and authorized tribes may use to justify the need for a WQS variance, and requires states and authorized tribes to justify the term of the WQS variance by describing the pollutant control activitie s needed to achieve the HAC

. For a waterbody variance, the final rule further requires i dentification and documentation of any cost

- effective and reasonable best management practices (BMPs) for nonpoint source (NPS) controls related to the pollutant(s) or water quality parameter(s) and water body or waterbody segment(s) specified in the WQS variance that could be implemented to make progress towards attaining the underlyi ng designated use and criterion, and in the case of any subsequent waterbody variance, documentation of whether and to what extent BMPs were implemented to address the pollutant(s) or water quality parameter(s) subject to the WQS variance and the water quality progress achieved. Finally, the final rule, specifies that a ny limitations and

req uirements necessary to implement the WQS variance shall be included as enforceable conditions of the National Pollutant Discharge Elimination System ( NPDES ) permit for the permittee(s) subject to the WQS variance. The EPA believes that these provisions in the final rule will ensure that WQS variances are used appropriately. For comments concerning the length of a WQS variance, see response essay 8.g.iii.Chapter 3 – Response Essays 8.d – Var – Practicality



### G. M **ust R equire EPA**  **Review and Approval**

EPA also agrees with commenters indicating that EPA should review requests for a WQS variance. A WQS variance is itself a WQS subject to EPA review and approval or disapproval. See response essay 8.f.i for further discussion.



### H. **New D**  **ischargers**

C ommenter s suggest the final rule should specify the types of “new dischargers” eligible to receive a WQS variance. However, the commenters do not specify the meaning of the term “new discharger.” T he term “new discharger” is currently defined in the NPDES permitting regulations at section 122.2 1 with respect to the date EPA published the relevant industry effluent guidelines. Assuming the commenters intend the term “ new discharger ” to mean a potential discharger that has never previously discharged under an NPDES permit but will commence discharging under a new NPDES perm it, the final rule does not prohibit a state or authorized tribe from granting a WQS variance to such a discharger provided the WQS variance fulfills the requirements of the final rule at section 131.14

. The final rule specifies that a WQS variance shall not result in any lowering of the currently attained ambient water quality, unless it is temporarily neces sary for restoration activities that facilitate lake, wetland, or stream restoration through dam removal or other significant reconfiguration ac tivities consistent with section 131.14(b)(2)(i)(A)( 2 ))

. EPA included this provision in the final rule to allow long

- term water quality improvement even in situations that may require short

- term lowering of water quality. EPA disagrees with commenters sugg esting that the final rule specify the specific types of “ new dischargers ” eligible to
receive a variance because EPA cannot reasonably anticipate all the types of “new dischargers ” that may be eligible for a WQS v ariance under these circumstances . S ee als o response to Essay 8.f and 8.f.i

.



### I. **There Are T oo**  **M any**  **R equirements**  **M aking W**  **ater Q**  **uality S**  **tandards V**  **ariances M**  **ore Burdensome**  **t han**  **P ermanen**  **tly Removing the Designated Use**

EPA disagrees with commenters suggesting that the requirements for a WQS variance are more burdensome than the requirements for permanently removing a designated use and thus a disincentive for using WQS variances. The se commenters assert that permanently removing a designated use would only require demonstration that at least one of the factors listed in section 131.10(g) applies , whereas a WQS variance would require a similar demonstration , while additionally requiring the setting of the highest attainable interim use and interim numeric criterion, or interim numeric effluent condition , and
is limited to ten year s.

EPA disagrees that adopting a WQS variance is more burdensome than permanently removing a designated use. To remove a designated use, states an d authorized tribes must demonstrate that the designated use is not attainable through a use attainability analysis (UAA). A UAA is a structured scientific assessment of the factors affecting the attainment of the use that may include physical, chemical, b iological, and eco nomic factors as described in section 131.10(g)

. If the state or authorized tribe finds through the UAA that the designated use is not attainable, the state or authorized tribe may

1 New discharger means any building, structure, facility, or installation: (a) From which there is or may be a ‘‘discharge of pollutants;’’ (b) That did not commence the ‘‘discharge of pollutants’’ at a particular ‘‘site’’ prior to August 13, 1979; (c) Which is not a ‘‘new source;’’ and (d) Which has never received a finally effective NDPES permit for discharges at that ‘‘site.’’Chapter 3 – Response Essays 8.d – Var – Practicality

remove the designated use

, but must adopt in its place t he HAU and all criteria necessary to protect the
HAU

. Unlike removing a designated use, however, s tates and authorized tribes typically grant a WQS
variance to a single discharger for only one or a few pollutant parameters for a limited period of time . As described in section II.E of preamble to the final rule, EPA recognizes that the data and analyses often needed to support adoption of a WQS variance could be less complex and require less time and resources compared to removing a designated use because many WQS variances evaluate only one parameter for a single permittee for a limited period of time. Thus, demonstration of the need for a WQS variance and identification of the HAC can be significantly less burdensome than conducting a
UAA. Furthermore, t he final rule reduce s administrative burden associated with utilization of WQS variances by eliminating the 10

- year term limit that was specified in the proposed rule

. The final rule provides s tate s and authorized tribe s with the discretion to determine th e necessary WQS variance term provided it is unambiguously identified as part of the WQS variance and the state or authorized tribe has sufficiently justified the need for the variance consistent with the documentation the state or authorized tribe must su bmit to EPA

. EPA believes that in the vast majority of cases, adopting a WQS variance is likely to be substantially less burdensome than permanently removing a designated use, and provides states and authorized tribes with needed flexibility in their WQS p rogram to keep as a long

- term goal designated uses that are not immediately attainable while making progress toward achieving them.Chapter 3 – Response Essays 8.e – Var – Compliance Schedules



## Essay **8.e – Var**  **iances: Variances versus**  **Compliance Schedules**

**A. The Rule S**  **hould P**  **rohibit Compliance S**  **chedules for**  **Meeting W ater**  **Q uality** 

**** **B ased**  **E ffluent**  **L imit**  **s in a N ational**  **P ollutant**  **D ischarge Elimination**  **S ystem**  **P ermit**  **D erived from a**  **Variance**

The U.S. Environmental Protection Agency ( EPA ) thanks commenters who support the EPA’s discussion in the preamble to the proposed rule regarding when it is appropriate to use water quality standards ( WQS ) variances and permit compliance schedules (CS) and agrees EPA’s interpretation is consistent with the “Hanlon Memo” of May 10, 2007.

EPA disagrees with commenters that said EPA should prohibit CS when meeting water quality

- based effluent limits ( WQBELs ) in a National Pollutant Discharge Elimination System ( NPDES ) permit derived from a WQS variance

. A WQS variance and a permit CS serve different purposes

. The rule defines a WQS
variance at section 131.3(o) as a time

- limited designated use and criterion for a specified pollutant(s), permittee(s), and/or water body o r waterbody segment(s) that reflects the highest attainable condition (HAC) applicable throughout the specified time period

. As discussed in s ection II.E of the preamble to the final rule, w here a permittee cannot immediately meet the WQBEL derived from th e terms of a WQS variance, the permitting authority has the discretion to decide whether to provide a permit CS ( assuming the state or authorized tribe has a provision authorizing the use of CS in such circumstances ) providing time for the permittee to com e into compliance with its WQBEL

. 1 (See Clean Water Act [ CWA ] section [502(17)] for a definition of “ s chedules of compliance” and Title 40 of the Code of Federal Regulations [ CFR ] section 122.47). 2 S uch schedules of compliance must lead to compliance with the effluent limits derived from the WQS variance “as soon as possible.”

The regulation at section 122.47 provides for CS because in some cases a permittee cannot reasonably be expected to immediately meet a WQBEL if meeting the WQBEL require s install ation or upgrading of treatment facilities. Similarly, it may not be reasonable to expect a permittee to immediately meet a more stringent WQBEL based on the HAC of a WQS variance if meeting the WQBEL requires installation or upgrading of treatment facilit ies. In either case, t he use of a CS must lead to compliance with the WQBEL as soon as possible

. Any CS for a WQBEL derived to meet an interim WQS in a WQS variance will need to meet the same requirements as any other CS for a WQBEL. One comment stated tha t allowing a WQS variance for a pre

- 1977 WQS undermines the principle in Star -K ist against authorizing a CS for WQBELs based on pre

- 1977 standards. The adoption of a WQS variance as an interim use and criterion (or HAC) changes the WQS, just as a permanent use downgrade, and WQBELs appropriately must be based on the applicable WQS. In the case of a WQS variance, the applicable WQS is the interim use and criterion (or HAC) in the WQS variance. This does not undermine the principle in Star -K ist. Rather, it applies and implements the established CWA and NPDES permitting requirements to base WQBELs on the applicable WQS.

1 As an alternative to a permit CS , there may be other available mechanisms such as an administrative order.

2 78 F ed. R eg. 54532 (September 4, 2013).Chapter 3 – Response Essays 8.e – Var – Compliance Schedules

The preamble to the final rule provides an example of when and how both tools could be used together to provide time to a discharger to meet the HAC of its WQS variance. Additionally, the final rule does not give preference to one tool over the other, as some commenters requested, as WQS variances and CS are different tools intended for different situations

. See the discussion in the preamble t o final rule in

s ection II.E, subsection “What is EPA’s Position on Certain Public Comments?” and response Essay 8.f.i for discussion on the differences between permit CS and WQS variances and when each is appropriate. EPA believes that in some cases, both a WQS variance and a CS can provide the greatest water quality improvement in situations where the underlying designated use and criterion is not immediately attainable but the state or authorized tribe chooses to keep the underlying designated use as a l ong

term goal. See also response Essay 9.d for a discussion on why EPA did not include a provision to ensure that states and authorized tribes evaluate whether a permit CS can be used prior to pursuing a WQS
variance.



### B. **When a W ater**  **Q uality**  **S tandards**  **V ari**  **ance is U**  **sed to U**  **ndertake S**  **tudies to D**  **etermine the A**  **ttainability of W ater**  **Q uality**  **S tandards**  **or the H**  **ighest A**  **ttainable Condition, T**  **hose S**  **tudies M**  **ust be P**  **roperly F**  **unded, P**  **romptly U**  **ndertaken, C**  **ompleted as Q**  **uickly as P**  **ossible , and**  **I nterim**  **B est**  **M anagement**  **P ractices**  **S hould**  **B e**  **I mposed**  **a s a**  **C ondition of**  **O btaining the**  **V ariance** 

EPA agrees with commenters that said a ny WQS variance that includes studies to determine the attainability of WQS or the HAC should ensure that those studies are performed as quickly as po ssible. However, EPA does not agree that requiring states and authorized tribes to fund specific activities or always requiring best management practices (BMPs) as a condition of a WQS variance is necessary.

The final rule includes several provisions to en sure that the requirements of a WQS variance are met as quickly as possible regardless of what those requirements may be

. First, t he final rule requires states and authorized tribes to provide to EPA documentation that the term of the WQS variance is only as long as necessary to achieve the HAC , and that such documentation must justify the term of the WQS variance by describing the activities and milestones that will occur during the WQS variance term (see
section 131.14(b)(2)(ii))

. In cases where a WQS variance requires the performance of certain studies , the state or authorized tribe must justify the term of the WQS variance in the context of the time required

to perform those studies (as well as any other requirements of the WQS variance)

. Furthermore, the final rule specifies that any limitations and requirements necessary to implement the WQS variance shall be included as enforceable conditions of the implementing NPDES permit

. Thus, any studies included as requiremen ts of the WQS variance must be included as enforceable terms and conditions of the NPDES permit. EPA believes these provisions in the final rule will ensure that the requirements of a WQS variance, including studies of attainability, will be performed as quickly as possible

.

The final rule does not require the state or discharger(s) concerned to “properly fund and promptly undertake the necessary studies... to address the uncertainty of the appropriateness or attainability of the applicable water quality standards.” EPA determined it was not necessary to include such a requirement in the rule. If studies to address uncertainty are needed as part of any WQS variance, the terms of the WQS variance will determine the appropriate timelines for any such studies. The final rule does not limit states or authorized tribes from including such requirements in their regulations where it is consistent with state or tribal law.Chapter 3 – Response Essays 8.e – Var – Compliance Schedules

EPA agrees with commenters suggest ing that the implementation of BMPs can be an important part of identifying and achieving the HAC for a WQS variance. W here a state or authorized tribe cannot identify

an y additional feasible pollutant control technology, the final rule provides the option of articulating the
HAC as the greatest pollutant reduction achievable with optimization of currently installed pollutant control technologies and adoption and implementation of a pollutant minimization program ( P MP )

. The final rule defines a PMP as a structured set of activities t o improve processes and pollutant controls that will prevent and reduce pollutant loadings and thus is similar to BMPs. In this way a PMP is closely related or can lead to the implementation of BMP s. The rule makes this option available for a WQS
variance that applies to a specific discharger(s) as well as a WQS variance applicable to a water body or waterbody segment. Pollutant control technologies represent a broad set of pollutant reduction options, including process or raw materials changes and pollutio n prevention technologies, practices that reduce pollutants prior to entering the wastewater treatment system, and BMP s for restoration and mitigation of the water body. This option requires states and authorized tribes to adopt the PMP along with other el ements that comprise the HAC . As part of the applicable WQS, the permitting authority must use the PMP (along with the quantifiable expression of the “greatest pollutant reduction achievable”) to derive NPDES permit limits and requirements.

EPA disagrees w ith commenters who said the rule should explicitly require implementation of BMPs when a WQS variance involves studies of attainability. The final rule at section 131

. 14(b)(1)(ii) requires the interim requirements of any WQS variance to represent the HAC

. If the implementation of one or

more BMPs can result in higher ambient or effluent water quality, those BMPs would likely be included in the WQS variance to comply with the final rule. EPA explicitly requires a PMP in situations whe re a state or authorized tribe cannot identify an y additional feasi ble pollutant control technology because it is especially important to ensure that states, authorized tribes, and dischargers consider all possible pollutant reductions, even when all feasible treatment technologies are already implemented

. See response Essay 8.g.v for a discussion on BMPs and nonpoint sources (NPS) and EPA’s rationale for the final rule in relation to including or not including requirements for implementation of cost

- effective and

reason able BMPs for NPS

.



### C. **Compliance T**  **ools M**  **ust Provide a P**  **ath to C**  **lean W**  **ater, N**  **ot an E**  **xemption to M**  **eeting Standards** 

E PA agrees with the commenters who said EPA should clarify that compliance tools such as WQS variances and permit CS should provide a path to c lean water, not an exemption to meeting standards

, and that EPA should provide more “direction” to states and authorized tribes on the appropriate use of WQS variances

. EPA proposed and is finalizing section 131.14 in part because: “ EPA has heard from

stat es, tribes, and stakeholders that there is confusion, inconsistency, and mixed interpretations about how, when, and where variances may be used appropriately .” See 78 F ed. R eg. 54531 (September 4, 2013). See s ection II.E of the preamble to the final rule for a full discussion of the requirements for WQS
variances. In response to such comments, EPA has included extensive discussion in the preamble of the final rule about the appropriate use of WQS variances and permit CS

. EPA also revise d the proposed
section 131.14 to increase accountability and ensure states and authorized tribes utilize WQS variances to make progress toward designated uses

. See response essay 8.b for discussion on how WQS variances function to make progress toward meeting underlying designated uses. See also response essay 8.f.i for a discussion on the provisions intended to increase accountability of WQS variances and on how the regulations limit WQS variances to serve as the time

- limited appl icable WQS for limited CWA purposes (i.e., development of NPDES permit limits and requirements and for use in 401 certification) while retaining the underlying use and criteria for other CWA purposes. See also response Essay 8.g.iii andChapter 3 – Response Essays 8.e – Var – Compliance Schedules

response Essay 8.g. iv, respectively, for more detailed discussions of the term of a WQS variance and the supporting documentation for WQS variances. See also response Essay 8.f for a discussion on EPA’s rationale for not including an explicit prohibition in the new WQS variance regulations on removal of existing uses.



### D. W **ater Q**  **uality S**  **tandards V**  **ariances “ W**  **eaken” W**  **ater Q**  **uality S**  **tandards**

The EPA disagrees with commenters who said WQS v ariances “weaken” standards or that WQS variances risk “ leading the country to a point where not meeting water quality standards is the acceptable norm and variances the rule rather than its exception .” A commenter expressed concern that the WQS variance provisions would fail to provide the necessary assurances of CWA compliance and protection of treaty reserved resources. The WQS regulations allow states and authorized tribes to remove a designated use if the state or authorized tribe demonstrates the designated use is not attainable due to at least one of the six factors listed in section 131.10( g), even if the designated use is not attainable due to a single pollutant. The state or authorized tribe may feel pressure from the discharger to remove the designated use because the discharger would be unable to comply with the WQBEL for that pollutant. Instead of removing the designated use, however, a WQS variance can provide a regulatory mechanism to retain the designated use by providing time

- limited relief to the discharger for the one pollutant that includes requirements to reduce pollutant loads t o the waterbody. A WQS variance is environmentally preferable to removing the designated use because the WQS variance is limited to a particular period of time, particular pollutants or pollutant parameters, and locations or dischargers. Moreover, a variance can provide a specific pathway to achieve feasible

progress . In reviewing any state ’s or authorized tribe ’s adoption of a WQS variance, EPA will take into consideration any obligations regarding the need for protection of treaty reserved resources.

EPA’ s regulation requires all NPDES permits to derive from and comply with all applicable WQS ( section 122.44(d)). Because the final rule requires the state or authorized tribe to specify the HAC as the interim use and criteria , and the permitting authority mu st develop enforceable permit requirements that derive from and comply with the interim WQS of the WQS variance, the NPDES permit will include enforceable permit requirements that will lead to the highest water quality attainable. See the preamble to the f inal rule for more information about how WQS variances are implemented in NPDES permits. See response essay 8.b for discussion on how WQS variances function to make progress toward meeting underlying designated uses.

EPA recognizes commenter concerns that “ the use of variances runs a very significant risk of leading the country to a point where not meeting water quality standards is the acceptable norm and variances the rule rather than its exception .” With this concern in mind, EPA revised the proposed fin al rule to include several provisions designed to ensure states and authorized tribes utilize WQS variances to make progress toward designated uses where there is uncertainty whether uses are ultimately attainable, and not to maintain the status quo of not meeting WQS. These provisions include a requirement that states and authorized tribes to justify the term of a WQS on the basis of the pollutant control activities to take place during the term of the WQS variance, reevaluate a WQS variance longer than five years at least every five years, submit the results of the reevaluations to the EPA within 30 days, include in the WQS variance a provision that the WQS variance will no longer apply if the state or authorized tribe does not perform the reevaluations on the specified schedule or does not submit the results to EPA within 30 days, include a provision in the WQS variance providing that the requirements of the WQS variance are either the HAC identified at the time of the adoption of the WQS variance, or the HAC later identified during any reevaluation, whichever is more stringent , and include any limitations and requirementsChapter 3 – Response Essays 8.e – Var – Compliance Schedules

necessary to implement the WQS variance as enforceable conditions of the NPDES permit for the permittee(s) subject to the WQS variance

. EPA concludes that these and other provisions will ensure that WQS variance do not become “the acceptable norm .”



### E. **EPA S hould**  **Better Explain the D**  **ifference between W**  **ater Q**  **uality S**  **tandards V**  **ariances and Compliance Schedules** 

EPA revised the preamble in the proposed rule to better explain when using these WQS tools are appropriate

. Sections E and F of the preamble to the final rule provides extensive discussion on the differences between a WQS variance and a CS , what each tool is designed to accomplish, and t he appropriate circumstances states and authorized tribes may utilize them.Chapter 3 – Response Essays 8.f – Var – Applicability



## Essay **8.f –**  **Var iances:**  **Applicability**

The U.S. Environmental Protection Agency ( EPA ) disagrees with the additions and deletions suggested by the commenter in reference to the proposed section 131.14(a) – Applicability. First, see response Essay 8.f.i for a discussion on EPA’s decision to retain applicability as proposed for single discharger, multiple discharger, and water quality standards ( WQS ) variances that apply to a water body or waterbody segment. In response to c omments on regulatory text related to applicability of WQS variance for issuing Clean Water Act ( CWA ) section 401 certification, see response Essay 8.f.ii. In response to comments on the addition of language including a provision that addresses cost

- effect ive and reasonable best management practices ( BMPs ) within the control of the permittee for single and multiple

- discharger WQS variances, see response Essay 8.g.v. In regards to the comments related to compliance schedules (CS) and WQS variances, see respo nse Essay 8.e.

In relation to the proposed provision section 131.14(a)(2)(i) that requires states and authorized tribes to retain the underlying designated use and criteria, the commenter requests del etion of language “unless the state adopts and EPA approves a revision to the underlying designated use and criterion consistent with § 131.10 or § 131.11.” EPA disagrees with this suggestion. EPA finds it necessary to include this language in the rule text related to WQS variances to ensure that where a state has an approved WQS variance and then has performed the proper analysis (i.e., use attainability analysis [ UAA ] or a “use and value demonstration”) and submitted a use change and EPA approves such a change, that the regulations are clear as to which designated use and criteria apply. This is consistent with CWA section 101(a) which recognizes that not all uses are attainable

. This language does not authorize any revisions to designated uses and water quality criteria beyond those that would otherwise alread y be allowed under the regulations at section 131.10 that govern the adoption and revision of designated uses and
section 131.11 which govern the adoption and revision of water quality criteria to protect such uses

.
In response to the comment that EPA should add a provision to section 131.14 to protect existing uses because that is an “absolute floor” of water quality , EPA agrees that existing uses are an “absolute floor .” However, EPA disagrees that such an approach i s necessary to protect existing use s. Unlike a designate d use change which changes the ultimate desired condition for a water body, the purpose of a WQS variance is to provide a mechanism that will facilitate incremental progress toward achieving the currently adopted designated use (and th us the existing use , if one is not being attained) in an accountable and transparent manner

. Such a tool would be unavailable to states and authorized tribes if EPA included a provision that prohibits WQS variances where the time

- limited “designated use an d criterion remove necessary protections for existing uses” (as suggested by the commenter) . On the other hand, allowing the use of a WQS variance independent of the existing use would promote the environmental outcome to “restore” water quality consistent with the CWA objective to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. However, EPA agrees that it is imperative that WQS variances do not make the water quality worse than what it c urrently is and has thus specifically included a provision in section 131.14 (b)(1)(ii) to ensure that WQS variances do not result in any lowering of the currently attained ambient water quality which would jeopardize meeting the CWA objective . This provisi on includes a single exception for the situation where a WQS variance is necessary for restoration activities under section 131.14(b)(2)(i)(A)( 2 )). The provision at section 131.14(b)(1)(ii) is consistent with the purpose of a WQS variance to facilitate the restoration of water quality rather than serving as a mechanism to lock in status quo.Chapter 3 – Response Essays 8.f.i – Var App – Scope



## Essay **8.f.i –**  **Var iances Applicability:**  **Scope**

**A. Water Quality Standards**  **Variances A**  **re Water Quality Standards** 

The U.S. E nvironmental Protection Agency ( EPA ) thanks and agrees with commenters who generally support water quality standards (WQS) variances as an appropriate WQS tool. S ee section II.E of the preamble to the final rule for a thorough discussion of WQS variances.

EPA does not agree with comments sug gesting WQS variances are not WQS subject to EPA review and approval. WQS variances are WQS that EPA has the authority and duty to review under Clean Water Act ( CWA ) section 303(c). As described in EPA ’ s “ What is a New or Revised Water Quality Standard Und er CWA 303(c)(3)? ” ( http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm ; October 2012,
EPA Document #820 -F- 12

- 017) , based on the requirements under the CWA at 303(c )(3), EPA ’s regulations and case law

. EPA identified the following four key factors in identifying what is a WQS:

1. It is a legally binding provision adopted or established pursuant to state or tribal law;
2. T he provision address es designated uses, water quality criteria (narrative or numeric) to protect designated uses, and/or antidegradation requirements f or waters of the United States;
3. The provision expresses or establishes the desired condition (e.g., uses, criteria) or instream level of protection (e.g., antidegradation requirements) for waters of the United States immediately or mandates how it will be expressed or established for such waters in the future; and
4. T he provision establish es a new WQS or revise s an existing WQS

.

Bec ause a WQS variance is defined as a time

- limited designated use and criterion, and because variances effectively establish the desired condition of waters of the U.S. over that defined limited time, any new or revised WQS variance that has been duly adopted pursuant to state law would meet each of the four factors described above. As a new or revised WQS, EPA has the authority and duty to review and approve or disapprove variances.

EPA does not agree with several commenters ’ suggestions that EPA only need s to approve WQS variance policies or procedures and that the WQS variances , as applied, do not need EPA approval. As discussed above, a WQS variance is a new or revised WQS

. As such, it does not become an applicable WQS for CWA purposes (in the case of WQS variances, those purposes are for National Pollutant Discharge Elimination System ( NPDES ) permitting and 401 certifications) unless and until EPA has approved the new or revised WQS. EPA approval of a WQS variance as a WQS is essential for NPDES permits th at implement a WQS variance

. The permit regulations at section 122.44(d)(1)(vii)(A) require permits to derive from and comply with applicable WQS . If there is no approved WQS variance effective for CWA purposes upon which to base the NPDES permit limits and requirements , then the permit would have to be written to the underlying WQS or it could be subject to objection and challenge. EPA review of only policies and procedures authorizing states and tribes to adopt WQS variances, even legally binding polici es and procedures authorizing WQS variances, would not alone be sufficient to make the WQS variances issued by the states and authorized tribes the applicable WQS for NPDES and 401 purposes. Additionally, EPA ’ s review of authorizing policies alone would no t include sufficient information (e.g., the economic particulars of a facility seeking a WQS variance under the substantial and widespread economic and social impact justification) for EPA to determine whether or not the WQS variance, as applied, would satisfy federal requirements. EPA ’ s review and approval of individual WQSChapter 3 – Response Essays 8.f.i – Var App – Scope

variances is also important because EPA must eva luate whether WQS variances in particular
circumstances (whether for individual or multiple dischargers) satisfy the requirements set for th in this rulemaking for establishing alternate time

- limited WQS

.

EPA also does not agree with the comment that points to the “ General Policies ” chapter of EPA ’ s WQS Handbook as a rationale for why only WQS variance policies (and not WQS variances themsel ves) are WQS subje ct to EPA review and approval or disapproval

. EPA acknowledges that its 1983 regulations provided that if states adopted general implementation policies in the WQS, they would be subject to EPA approval. However, it has been EPA ’ s longstanding position that EPA also must approve individual WQS variances (see also EPA ’s response to code 8.b – Variance: General Opposition)

. The 1977 OGC memorandum that opined states could adopt variances as an alternative to a permanent downgrade of a use was issued in the context of a state adopting and EPA approving a revised WQS. As discussed above, EPA considers WQS variances to be WQS. EPA does not view its position that WQS variances are WQS as a change in Agency interpretation. To the extent t he commenter is asserting that EPA has changed its interpretation, the final rule at 131.14 represents the Agency ’ s interpretation issued following notice and comment rulemaking. EPA notes that i n 2014, it updated certain chapters of the online version of the Handbook to ensure it reflected previously publicly articulated guidance

. EPA also does not agree with the commenter ’ s contention that the Star

- Kist decision precludes EPA from taking action on regulations regarding “ whe ther and how variances are used, ” since such action would fall in the realm of implementation of standards. For further discussion regarding WQS variance implementation please see Response Essay 8.h.

EPA notes that states and authorized tribes may take advantage of the public process that they currently use for NPDES permit issuance for obtaining public input on a proposed WQS variance when that public process is consistent with EPA ’ s regulations at section 131.20(b) , including the requirements related to holding a public hearing

. Once the WQS variance is adopted, they can submit the WQS variance to EPA for review under CWA section 303(c). See section II.E of the preamble to the final rule for more information on ways states and authorized tribes can streamline the p rocess for WQS variance adoption.



### B. **Water Quality Standards Variances, Compliance Schedules**  **, and Mixing Zones**

Some commenters expressed confusion or requested clarity regarding the differences between WQS
variances
, compliance schedules ( CS ), and mixing z ones. A critical distinction between the three is that individual WQS variances are themselves WQS, establishing the desired condition of water quality and

serv ing as the applicable WQS for NPDES permitting. As described in subsection A of this essay

, an i mportant feature of a WQS variance is that it is a WQS and, therefore, for the purposes of NPDES permitting under CWA section 402, it can be used as the basis for deriving permit limits and requirements that comply with the applicable WQS per section 122.44(d)(1)(vii)(A). In contrast, individual CS and individual mixing zones are not WQS. They do not establish the desired condition of water quality or serve as the WQS on which NPDES permit limits and requirements are derived. Individual CS provide time for a discharger to come into compliance with its NPDES permit limits and requirements derived from the applicable WQS. Mixing zones can be allowed as long as the permit limits and requirements will ensure the applicable WQS are met in the waterbody as a whole . S tates and authorized tribes do need to authorize the use of mixing zones and CS in deriving permit limits and requirements , b ut because neither individual CS nor individual mixing zones change WQS , neither need s EPA approval. See s ection II.F of the preamble to the final rule for more information on compliance schedule authorizing provisions (CSAPs)

. See also R esponse Essay 9.b for additional discussion on the distinction between CSAPs and CS themselves.Chapter 3 – Response Essays 8.f.i – Var App – Scope

EPA does not agree with commenters who suggested that “ variances aren ’ t really necessary – mi xing zones do the same thing. ” As noted above, the two tools serve different functions and have different

m odes of operation with regard to the designated use and criteria of the wat er body. WQS v ariances are defined in the final rule as “ a time

- limited designated use and criterion for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable condition (HAC) during the term of the WQS variance. ” As desc ribed in EPA ’ s WQS Handbook 1 , a mixing zone is a limited area or volume of water where initial dilution of a discharge takes place and where certain numeric water quality criteria may be exceeded. An important concept in the use of mixing zones is that som etimes it is possible to expose aquatic organisms to a pollutant concentration above a criterion for a short duration within a limited, clearly defined area of a waterbody while still maintaining the designated use of the waterbody as a whole. When states or authorized tribes grant a WQS variance, they are, in effect, allowing a different designated use and criteria to serve as the applicable WQS for the limited purposes of CWA section 402 permitting and issuing CWA section 401 certifications. On the contra ry , when states or authorized tribes establish a mixing zone in the development of a particular NPDES discharge pe rmit, the mixing zone allows an exceedance of the applicable criteria in that defined location while maintaining the designated use and criter ia of the waterbody as a whole. See the WQS Handbook, Chapter 5 for

mo re information on mixing zones.



### C. **Water Quality Standards Variances for Water Bodies or Waterbody**  **Segments**

EPA notes that numerous commenters support ed WQS variances being applicable to a specific discharger, multiple dischargers, or a wa ter body or waterbody segment. The final rule retains this applicability. EPA carefully considered comments suggesting that EPA should eliminate the option for a WQS var iance to apply to a water body or waterbody segment ( hereafter referred to as a “ waterbody
variance ”) but does not agree with those comments

. The purpose of a waterbody variance is to provide an alternative to removing or downgrading the designated use of a waterbody and instead make incremental improvements in water quality while retaining the long term goal of fully attaining the designated use. A waterbody variance serve s the national goal in section 101(a)(2) of the Act and the ultimate objective of the CWA to restore and maintain the chemical, physical, and biological integrity of the Nation ’ s waters because the WQS variance is narrow in scope ( with regard to the subject pollutants) and duration and are designed to make progress toward water quality goa ls

.

Where a state or authorized tribe can demonstrate that a designated use and criterion currently in place for a specific pollutant (s) is not attainable for a limited period of time for an entire water body or waterbody segment, the state or authorized tribe may adopt a waterbody variance. In such circumstances, the WQS variance would appl y to the water body itself, rather than to any specific source

or sources , much like a use change. However, unlike a use change, the WQS variance is tailored narrowly to the specific pollutant(s) for a particular limited time

- frame , and is only applicable for CWA section 402 purposes or for issuing certifications under CWA section 401, while the underlying WQS remains in place for those CWA purposes that relate to the long term goal of the water body (e.g., CWA section 303(d)). A waterbody variance provides time for the state or authorized tribe to work with both point and nonpoint sources (NPS) to determine and implement adaptive management approaches o n a waterbody/ watershed scale that will achieve reductions in the pollutant(s) specified in the waterbody
variance
, and to make progress toward fully attaining the designated use (78 FR 54532)

.

1 EPA Water Quality Standards Handbook, http://water.epa.gov/scitech/swguidance/standards/handbook/Chapter 3 – Response Essays 8.f.i – Var App – Scope

Based on comments, EPA refined the regulatory structure of the final rule to be tter promote progress by including provisions for WQS variances that maximize accountability while minimizing rulemaking burden for all WQS variances

. See s ection II.E of the preamble to the final rule for more discussion on the regulatory structure of section 131.14.

EPA agree s with the comment that a particular state or authorized tribe may not find the concept of waterbody variances useful or may not be ready to use this too l . S tates and authorized tribes do not need to utilize WQS variances (waterbod y variance s or other) as they are a discretionary aspect of the WQS program. However, m any states have expressed support and desire for such a tool now

. An interested state or authorized tribe may use their discretion to pursue a waterbody variance whereve r a WQS variance may be appropriate to deal with more significant or widespread pollution problems, such

as where NPS are a major source of pollutant loadings. A waterbody variance could be particularly successful where the state or authorized tribe finds that both point and NPS are willing to collaborate on a strategy to resolve the pollutio n challenges in the waterbody. If a total maximum daily load ( TMDL ) has b een developed, a state or authorized tribe could choose to utilize a waterbody variance as a regulatory framework within which to establish a TMDL implementation plan specifying requirements, actions and/or milestones for which both point and NPS are accountable to achieve the waste load and load allocations of the TMDL and interim targets for the water body. A waterbody variance could also be useful in situations where t he state or authorized tribe does not know whether the designated use and criterion can be attained, but feasible progress toward attaining the designated use and criterion can still be made by implementing known controls and trac king environmental improvements

. For example,

a state or authorized tribe could adopt a waterbody variance f or a persistent organic pollutant in a situatio n where all dischargers to the waterbody are already implementing pollutant control technologies with the greatest pollutant reduction that is feasible. In such a case, section 131.14(b)(1)(ii)(B)( 2) provide s for the option of adopting a waterbody variance that requires the permittees to maintain their current pollutant control technology and implement a p ollutant minimization program (PMP) while the state addresses NPS of the pollutant.

In situations where a state or authorized tribe uses a wate rbody variance to address point and NPS , EPA also recognizes the need for additional accountability

. In addition to the provisions that EPA added to the final rule that apply to all WQS variances to maximize accountability and to achieve progress towards the und erlying designated use and criteria, the final rule includes several provisions to ensure that a state or tribe consider all sources of the specified pollutant(s) when developing a waterbody
variance with input from their public

. For example, under the fin al regulations at section 131.14(b)(1)(ii)(B) , EPA has made it clear that the articulation of the HAC for a waterbody variance is different than the articulation for discharger(s)

- specific WQS variances because a waterbody variance expresses the desired co ndition of the entire water body or waterbody segment for the particular pollutant(s) and time period (for limited CWA purposes) and therefore, EPA does not allow the flexibility to express the HAC as an effluent condition

. Where a state or authorized trib e chooses to submit a waterbody variance for EPA approval, EPA expects the submission to include the identified HAC during the term of the WQS variance to take into account feasible reductions and po llutant minimization
actions

. These additional provisions plus the provisions discussed below to increase transparency and consideration of NPS
, address concerns by some commenters who criticized waterbody variances for not having rigorous enough requirements for the granting of such v ariances and sufficient assurances for progress during the term of the variance. EPA carefully considered these comments and developed its final regulatio ns with these comments in mind, intending to ensure that waterbody variances would only be used in appropriate situations and would result in the highest water quality attainable during the term of the variance.Chapter 3 – Response Essays 8.f.i – Var App – Scope

EPA also included provisions intended to increase transparency and consideration of multiple sources of the pollutant (s) , including NPS
, as they c an have a significant influence on whether the designated use and associated criteria for the entire water body are attainable. Specifically, EPA is requiring
i dentification and documentation of any cost

- effective and reasonable best management practices (BMPs) for NPS controls related to the pollutant(s) or water quality parameter(s) and water body or waterbody segment(s) specified in the waterbody variance that could be implemented to make progress towards attaining the underlying designated use and crite rion. This includes a requirement th at states and authorized tribes provide public notice and comment for any such documentation. Also, a ny subsequent WQS variance for a water body or waterbody segment must include documentation of whether and to what exte nt BMPs were implemented to address the pollutant(s) or water quality parameter(s) subject to the waterbody variance and the water quality progress achieved. Because waterbody variances relate to the entire water body or waterbody segment and will likely require the cooperation of both point - and NPS of the pollutant(s), these requirements may help identify potential actions that facilitate meeting the HAC specified in the waterbody variance. In addition, requiring states and authorized tri bes to provide the public with information about the potential impact of controlling
NPS of pollutants increases public transparency and will help i nform the re

- evaluation process (required in the final rule for any WQS variances greater than five years). See also R esponse Essay 8.g.v for discussion on the requirement related to BMPs for NPS for waterbody variances.



### D. **Water Quality Standards Variances and “**  **Narrowed ”**  **Clean Water Act Purposes** 

In response to comments on limiting the use of WQS variances to CW A section 402 (NPDES permitting) and when issuing certifications under section 401 of the Act , and not applying variances for TMDL development under CWA sections 303(d) and 305(b)

, see EPA ’ s response to code 8.f.ii – Var iances Applicability: Approved Variances and P ermitting and 303(d).

EPA d oes not agree with the commenter who states that EPA ’ s proposed provision to ensure that states and authorized tribes retain the underlying standard in their WQS while still allowing the WQS variance to apply for l imited CWA purposes is in conflict with the requirements of CWA section 303(c)(3). The

commente r argues that section 131.21(d) “ precludes EPA from utilizing a bifurcated approach for implementing WQS by allowing the most recently adopted and approved WQS f or a water body (or portion of a water body) to be used for one purpose of the Act and a previously adopted and approved ...WQS for the same waters... to be used for another use of the Act. ” EPA does not agree with this

commenter ’ s limiting interpretation of t he Act and regulation, and believes the Agency has the authority to apply variances for limited CWA purposes as has been its longstanding practice to do so. That said, the final regulations include section 131.14(a)(3) to make clear that when an approved W QS variance is in place, the applicable standard under section s 131.21(d)

- (e) is the WQS variance for developing NPDES permit limits and requirements under 301(b)(1)(C) and for when states or o ther certifying entities issue certifications under CWA section 401. This addition of section 131.14(a)(3) modifies the interpretation of

“ applicable standard ” for applying section s 131.21(d)

- (e) and CWA section 303(c)(3) for WQS variances. To the extent that this is a change in regulatory interpretation, EPA may do s o through notice and comment rulemaking as the Agency has done in this rulemaking.Chapter 3 – Response Essays 8.f.i – Var App – Scope



### E **. Addressing the Need**  **for More Accountability**  **and F**  **lexibility for**  **Water Quality Standards Variances** 

As described in detail in section II.E of the preamble to the final rule, based on comments, EPA revised some aspects of section 131.14 to maximize accountability related to adopting and implementing WQS variances while minimizing burden related to state or tribal rulemakings for adopting WQS variances. In addition to requiring that each WQS variance specify the term of the variance (i.e., expiration date), EPA also included several other provisions. Specifically, for any WQS variance that is greater than five years, EPA included provisions at section 1 31.14(b) (1)(iii), (v), and (vi) that ensure timely reevaluation of the WQS variance and ensure that states and authorized tribes acquire and use updated information on the
HAC to inform the NPDES permitting process. EPA also clarified the regulatory text pertaining the documentation supporting the term of the WQS variance (see section 131.14(b)(2)(ii)) so that s tates and authorized tribes must describe the pollutant control activities to achieve the HAC which will then serve as milestones for t he WQS variances. Such activities/milestones may be used by the permitting authority in developing permit limits and requirements. Finally, EPA ’ s regulation at section 131.14(c) makes it clear that states and authorized tribes must include any limitation a nd requirement necessary to implement the WQS variance as enforceable conditions of the NPDES permit for the permittee(s) subject to the WQS variance. See also R esponse Essay 8.g.iii for additional discussion on the reevaluation related provisions.

In rega rds to comments about the public identification of all dischargers in the WQS variance , both the proposed rule and final rule include a provision requiring the state or authorized tribe to identify the discharger(s) in the WQS variance. A State or authoriz ed tribe may satisfy the requirements at section 131.14(b)(1)(i) for multiple discharger WQS variances by including a list of (1) the pollutant(s) or water quality parameter(s), (2) the name/location of the water body/waterbody segment(s) and (3) the name of the dischargers subject to the WQS variance. As an alternative, a state or authorized tribe may satisfy
section 131.14(b)(1)(i) by including (1) a list of the pollutant(s) or water quality parameter(s), (2) a description of the specific characteristics of any discharge and discharger subject to the WQ S variance, (3) an identification of the underlying designated use and water quality criteria of the respective receiving water bodies/waterbody segments addressed in the WQS variance as a proxy for name/location, and (4) information where the public can a ccess the website or document that the state or authorized tribe will subsequently update with the names of the dischargers covered by the WQS variance as the WQS variance is implemented in specific discharger permits. EPA expects that the same characteris tics used to group the dischargers will be used to identify dischargers when using the second approach. As discussed in EPA ’ s Frequently Asked Questions (FAQs)

, EPA advised that in justifying the need for a multiple

- discharger WQS variance, the state ’ s dem onstration should “ Group permittees based on specific characteristics or technical and economic scenarios that the permittees share (e.g., type of discharger (public or private), industrial classification, permittee size and/or effluent quality,

treatment train (existing or needed), pollutant treatability, available revenue, whether or not the permittee can achieve a level of effluent quality comparable to the other permittees in the group, and/or waterbody or watershed characteristics) ” ( EPA

- 820 -F- 13

- 012, March 2013). This approach will allow a state or authorized tribe to adopt the WQS multiple discharger variance for those dischargers that currently qualify and then, as additional qualifying dischargers ’ permits come up for renewal, those dischargers ( alr eady approved because they meet the description/selection characteristics) can be subject to the WQS variance.Chapter 3 – Response Essays 8.f.i – Var App – Scope

In the preamble to the final rule (see section II. E, “ What is EPA ’ s position on certain public comments? ” ), EPA also discusses possible ways for states and authorized tribes to streamline the administrative processes of adopting WQS variances. One commenter suggests that EPA allow states and authorized tribes to use the “ performance

- based approach ” for streamlining submittal and review of WQS variances. See response 8.g.iii subheading K for EPA ’ s explanation regarding why it does not

agree with this suggestion.

EPA does not agree with the comment that “ the main problem with U.S. EPA ’ s variance proce ss is that it must meet the same requirements as a permanent designated use modification. ” EPA addressed this issue in the preamble to the proposed rule when the Agency explained it ’ s rationale for including an entirely new, separate section for WQS varian ces in the rulema k ing (see 78 FR 54531

- 32 ).

See also response 8.b for discussio n of why EPA views WQS variances as a necessary and appropriate tool. See also response 8.d for further discussion of why and how EPA views WQS variances as practicable. See als o response 8.f for additional discussion on WQS variances and the protection of existing uses and current water quality.



### F. Other

**New Dischargers**

EPA does not agree with the commenter who requested that EPA prohibit WQS variances for “ new dischargers. ” Spe cifically, the term “ new discharger ” is defined in the NPDES permitting regulations at section 122.2 2 and has a very particular meaning that is not the same as the laymen ’ s meaning. Section 122.2 defines a “ new discharger ” in relation to the date EPA published the relevant industry effluent guidelines (i.e., technology

- based regulations). The goal of a prohibition on WQS variances for a facility that is recently built and commences discharge would be to ensure that such fac ilities plan to incorporate the best pollutant reduction technology to meet all applicable WQS (as well as their technology

- based limitations) before they commence discharge . EPA concluded it would be confusing to prohibit WQS variances for “ new dischargers ” if that discharger began discharging decades ago (but after the relevant technology

- based effluent guidelines regulation so that it meets the definition of

“ new discharger ” ) and is then faced with a new or more stringent WQS (and resultin g water quality

based effluent limit [ WQBEL ] ). This is especially of concern where the discharge has been in place and a new/revised WQS cri teria value is below the achievable treatment level of existing technology. A WQS variance is a tool that can be used to provide tim e until new technology exists while the discharger implements pollutant minimization practices to make environmental progress. A prohibition on “ new dischargers ” would present an artificial barrier to that progress. Additionally, EPA addressed the fundamen tal principal that WQS variances must not result in any lowering of the currently attained ambient water quality through the provision in the final rule at section 131.14(b)(1)(ii) (see also
R esponse Essay 8.f for more detail regarding EPA ’ s thinking on this provision).

2 New discharger means any building, structure, facility, or installation: (a) From which there is or may be a

‘‘ discharge of pollutants; ’’ (b) That did not commence the ‘‘ discharge of pollutants ’’ at a particular ‘‘ site ’’ prior to August 13, 1979; (c) Which is not a ‘‘ new source; ’’ and (d) Which has never received a finally effective NDPES permit for discharges at that ‘‘ site. ’’Chapter 3 – Response Essays 8.f.i – Var App – Scope

**Permit Waivers**

One commenter suggests that EPA ’ s WQS variance regulations at 131.14 removes the state ’ s flexibility

“ to grant waivers due to extreme events (such as temporary relief during droughts and natural disasters). ” The final rule does not address temporary waivers of the nature described by the commenter, and the commenter does not explain the conditions under which the final rule removes state flexibility.

See R esponse Essay 3.a for discussion on concerns regarding state primacy an d R esponse Essay 8.m regarding EPA ’ s legal authority for WQS variances and the requirements in the final rule. See Response Essay 8.i for discussion on WQS variance renewals. See R esponse Essay 8.c for responses concerning changes to the definition of WQS variance. See R esponse Essay 12.c for a discussion on EPA ’ s estimates of burden and costs for the rule.

Regarding comments pertaining to section 131.14(a)(2)(i), see R esponse Essay 8

. f for discussion on why EPA has retained the provision.Chapter 3 – Response Essays 8.f.ii – Var App – Permitting & 303(d)



## Essay 8.f.ii **– Var**  **iances Applicability: Approved Variances and P ermitting**  **and 303(d)** 

**A. W ater**  **Q uality**  **S tandards**  **Variances and C**  **lean W**  **ater A**  **ct P**  **urposes**

The U.S. Environmental Protection Agency ( EPA ) appreciates comments that support limiting the use of water quality standards ( WQS ) variances to permits issued under Clean Water Act ( CWA ) section 402 ( National Pollutant Discharge Elimination System [ NPDES ] ) and to certifications issued unde r section 401 of the Act . EPA appreciates comments that support EPA ’ s provision at section 131. 14 (a)(2) which clarifies that “a ll other applicable standards not specifically addressed by the WQS variance remain applicable .” Keeping the applicability of WQS variances to a specific pollutant(s) along with limited CWA

purposes , limited timeframe, and reevaluation for longer term variances while retaining the underlying standards are important components to the WQS variance framework in the final rule.

In response to comments on the need for increased flexibility and accountability for WQS variances, s ee section II.E of the preamble to the final rule which includes a discussion on the revisions EPA made to the final rule to increase the accountability, flex ibility, and transparency of WQS variances.

EPA disagrees with commenters who suggest that a state or authorized tribe should use the WQS variance as the basis for waterbody assessment and listing or for total maximum daily load ( TMDL ) development under CW A sections 303(d) and 305(b). EPA carefully evaluated this issue and a s discussed in the proposed rule preamble and in the final rule preamble in s ection II.E, EPA concluded that in order to make incremental water quality improvements it is important that states ’ and authorized tribes ’ WQS continue to reflect the ultimate water quality goal unless the state or authorized tribe adopts a permanent use downgrade that is approved by EPA . Therefore, the final rule requires states and authorized tribes to retain the underlying designated use and criterion in their standards to apply to all other permittees not addressed in the WQS variance . States and authorized tribes must also retain the underlying designated use and criterion for identifying threatened and impa ired waters under CWA section 303(d)

, and for establishing TMDL s. 1 EPA emphasizes that this is appropriate for WQS variances that apply to a single discharger or multiple dischargers, and to WQS variances that apply to a water body or to a waterbody segmen t. This is especially important for CWA section 303(d) listings, in particular when a variance is for individual dischargers. If the water is not attaining the underlying use and criteria which continue to be applicable WQS for CWA purposes

, these waters m ust be identified as impaired consisted with CWA section 303(d)(1)(A). It is important that the public understand the waters
remain in nonattainment. EPA disagrees with the comment that “ where a variance is applicable to certain discharges, any 303(d) list ings should be deferred...since a TMDL is not necessary to address a short

- term variance... ” Based on EPA ’ s position, as described above, CWA section 303(d) listings and TMDL development need to continue to be based on the underlying standard. However, EPA doe s allow prioritization of TMDL development. For example, it may be possible for a state to place a waterbody with a WQS variance on a lower priority for TMDL development until after the variance has exp ired. A

c omment express ed concern that if a WQS variance cannot be used for identifying impaired waters under CWA section 303(d), and, therefore, the underlying standard is used as a basis for 303(d) listing

, then new or expanded discharges under section 122.44 will be prohibited. Decisions regarding is suance

1 See 78 F ed. R eg. 54533 (September 4, 2013).Chapter 3 – Response Essays 8.f.ii – Var App – Permitting & 303(d)

of permits for expanded discharges to impaired waters are made case

- by

- case consistent with the applicable NPDES rules. As described in subsection D of this essay, the final r ule provisions at section 131.14 do not prohibit issuance of permits for new or expanded d ischarge s. The final rule does require that a WQS variance may not allow the lowering of “ currently attained water quality. ” See response Essay 8.f.i for additional discussion of WQS variances and CWA purposes in regards to sections 131.21 (c)

- (e).

EPA has also clarified language in the final rule at section 131.14(a)(3) in response to comments requesting better articulation of the applicability of WQS variances. See section II.E and the final regulatory text for a discussion of EPA ’ s ration ale.



### B **. Permit s**  **, T otal**  **M aximum**  **D aily**  **L oad**  **s, and W ater**  **Q uality**  **S tandards**  **Variances**

As described in s ection II.E of the preamble to the final rule, EPA received comments questioning how a WQS variance works with a TMDL and CWA section 303(d) impaired waters listing(s). These comments suggested the proposed rule would create a conflict in how the NPDES permitting regulation requires permitting authorities to develop water quality

- based effluent limits ( WQBELs ) . Section
1 22.44(d)(1)(vii)(A) specifies that all WQBELs in an NPDES permit must derive from and comply with all applicable WQS. Section 122.44(d)(1)(vii)(B) specifies that the WQBEL of any NPDES permit must be consistent with the assumptions and requirements of any available (emphasis added) wasteload allocation (WLA) in an EPA

- approved or EPA

- established TMDL. Because the WLA of the TMDL would need to be based on the underlying designated use and criterion (and not on the highest attainable condition (HAC) establish ed in the WQS variance), then the WLA in the TMDL is not available (or applicable) to the permittee covered by the WQS variance for NPDES permitting purposes while the WQS variance is in effect. The permitting authority would need to develop WQBELs for the permittees subject to the WQS variance based on the interim requirements specified in the WQS variance. Upon termination of the WQS variance, the NPDES permit would need to again derive from and comply with the underlying designated use and criterion and be consistent with the assumptions and requirements of the W LA (as it is again “ available ” ).

In a related comment, one commenter requested that EPA clarify in rule and preamble that the WQS applicable to the discharger should be considered to be the varian ce, not the underlying standards and provided specific suggested edits to the regulatory text . EPA agrees in concept with this commenter and has reflected that understanding in the final rule at section 131.14(a)(3) and section 131.14(c) and in
section II.E of the preamble to the final rule. However, EPA chose to meet that objective through selection of different revised regulatory text. For example, the commenter suggested EPA add that the
variance “

... superc edes any wasteload allocation during the varia nce period. ” Such language is unnecessary because EPA achieved the same goal by revising the final rule at section 131.14(a)(3) to 1) clarify the application to developing permit limits

, and 2) to include a direct reference to 122.44(d) at section 131.14(c )

. Another commenter requested that EPA clarify that a WQS variance can be the

“ applicable ” WQS for the purposes of section 122.4(i) related to new dischargers. The final rule is clear that an EPA approved WQS variance is the applicable standard for developing NPDES permit limitations and requirements (see section 131.14(a)(3)) . EPA also notes , however, that the WQS variance for a new discharger must also comply with the final regulation at section 131.14(b)(1)(ii), which specifically prohibits a WQS varian ce that would allow the lowering of “ currently attained water quality ” (with the single exception related to the WQS variances based on the new factor for dam removal or wetland, lake, or stream restoration). EPA reminds the commenter that new dischargers h ave an opportunity toChapter 3 – Response Essays 8.f.ii – Var App – Permitting & 303(d)

put the latest technologies and pollution minimization strategies in place

. See also discussion in EPA ’s response to code 8.f.i – Variance s Applicability : Scope.



### C. W **ater Q**  **uality S**  **tandards Variance and**  **Permit Term Expiration**

Commenters raised questions about what happens when the WQS variance expiration and the permit expiration are not well coordinated. NPDES permits are issued on a standard 5

- year cycle, while
variances can be adopted and approved for a variety of different time periods. Commenters also said EPA should clarify that interim permit limits and other variance conditions continue to apply until such time as a variance or permit is renewed. Commenters questioned if a “ variance must be as short as possible... ” means t hat EPA could require WQS variances to last less than one permit term, and suggested that such a requirement “ could cause issues with the permit backlog by creating the need to modify and reissue permits mid

- term. ” First, the final rule specifies that the term of a WQS variance must be only as long as necessary to achieve the HAC . Second, EPA recommend s that permitting authorities and state and authorized tribes work to coordinate permit issuance/renewal with the duration of the related WQS variance. In addition, where a state or authorized tribe is adopting a WQS variance that is longer than 5 years, the final rule requires that the state or authorized tribe must identify a schedule (no longer than 5 years) for reevaluation of the WQS variance. EPA understands that states and authorized tribes are likely to time the reevaluation with either the triennial review or the permit cycle so that information can be timely for permit renewal. However, in the situation where a state or authorized tribe does not coordi nate a WQS variance term with the exp iration date of an NPDES permit
, and the information is available to the permitting authority indicating that the term of a WQS variance will end during the permit cycle

, the permitting authority would need to develop t wo WQBELs: one WQBEL based on the HAC applicable throughout the WQS variance term, and another WQBEL based on the underlying designated use and criterion to apply after the WQS variance terminates (see discussion in s ection II.E of the preamble to final ru le) . Including two sets of WQBELs that apply at different time periods in the permit ensures that the permit will derive from and comply with WQS throughout the permit cycle. If the state or authoriz ed tribe adopts and EPA approves a subsequent WQS varianc e during the permit term to replace an expiring WQS variance, the new WQS variance would constitute “ new regulations ” pursuant to section 122.62(a)(3)(i)

, and the permitting authority could modify the permit to derive from and comply with the subsequent WQS variance. At the request of the permittee, the permitting authority can also utilize the “ Permit Actions ” condition in a permit required by section 122. 41(f) to modify a permit pursuant to section 122.62 and revise the WQBEL to reflect the new WQS va riance.

On the other hand, there might be a situation where the state or authorized tribe adopts, and EPA approves, a WQS variance with a specific duration (a s required by section 131.14(b)(1)(iv)) that is set to match the 5 year permit cycle or is longer than one permit cycle and, subsequently, the permit expires and is administratively continued (as may be authorized under state or Federal regulations)

. Impor tantly, because the final rule requires that state s and authorized tribe s specify the requirements that apply throughout the term of the WQS variance and that those requirements represent the HAC of the water body or waterbody segment applicable throughout the term of the WQS variance ( section 131.14(b)(1)(ii)), the WQBELs and the permit term s and conditions in the administratively continued permit will reflect the highest attainable use (HAU) and will continue to derive from and comply with the WQS variance . If the administratively continued permit is in effect when the WQS variance expires, the WQBELs in the permit remain the applicable requirement

. EPA encourages permitting authorities to prioritize renewal of those permits that they develo p ed base d on a WQS variance that has expired or where the reevaluations have identified a higher attainable condition. EPA notes that t he finalChapter 3 – Response Essays 8.f.ii – Var App – Permitting & 303(d)

regulations require that WQS variances longer than five year s include a statement providing that the requirements of the WQS variance are either the HAC identified at the time of the adoption of the WQS variance, or the HAC later ide ntified during any reevaluation, whichever is more stringent. This enables permit renewal based on an updated HAC without separate state or aut horized tribal adoption and EPA approval of more stringent interim requirements in the WQS variance

.



### D. C **lean W**  **ater A**  **ct Section 401 Certification, Variances**  **, and Compliance**  **Schedules**

EPA disagrees with commenters who articulated that EPA needed to revise t he regulation to clarify that WQS variances are discretionary. The final rule language in 131.14 clearly specifies: “ States may adopt WQS variances ...” In the context of the regulation, EPA uses the word “ may ” ( as opposed to “ must ” or

“ shall ”) when a requirement is optional. A state ’ s or authorized tribe ’ s use of WQS variances or their inclusion of a compliance schedule authorizing provision (CSAP) in their WQS is discretionary. (See EPA ’s response to code 9.b regarding the need for a CSAP when including compliance schedules (CS) in NPDES permits.) For additional discussion on CSAPs , see section II.F of the preamble to the final rule.

EPA also disagrees with commenters that requested EPA to revise the final rule to make clear that a

“ variance is not required whenever a schedule of compliance is needed because the permitted facility is not currently in compliance and it is infeasible to bring the facility into immediate compliance. ” WQS variances are discretionary tools and, as discussed in section II.E of the preamble to the final rule

, they are intended to serve a different purpose from CS

. However, also as discussed in section II.E of the preamble to the final rule, under the final rule it is conceivable that a state or authorized tribe may utilize both tools in coordination to give a permittee relief from the underlying WQS and time to achieve the HAC by the end of the duration of the WQS variance. See also EPA ’ s response to code 8.e – Variances: Variances vs. Compliance Schedules for a discussion on th e use of WQS variances and CS

.
Based on comments, EPA revised the regulatory text to better describe how states and authorized tribes can use WQS variances in the context of CWA section 401 certification (see section 131.14(a)(3) and
section II.E of the preamble to the final rule). Specifically the final text says: “ States and other certifying entities may also use an approved WQS variance when issuing certification s under section 401 of the
Act. ” EPA interprets this language to recognize that a W QS variance may be the basis for a state ’ s or authorized tribe ’s section 401 certific ation when that WQS variance is the applicable WQS for purposes of the discharge that is subject to a federal license or permit

. Some commenters requested that EPA limit t he use of WQS variances in the context of CWA section 401 certifications to NPDES permits

. EPA concluded it was not appropriate to restrict the use of a state

- adopted WQS as the applicable WQS if the variance was properly adopted and addressed the pollutan ts at issue in the relevant 401 certification. Adoption of WQS vari ances is a choice, not a requirement that is made by the state or authorized tribe. EPA concluded the state or authorized tribe should have the discretion to decide whether to adopt a WQS v ariance and whether to apply that WQS variance in a CWA section 401 certification for federal permits or licenses other than NPDES permits. EPA ’ s decision is consistent with the purpose of section 401 which is to give states and authorized tribes the authority to issue certifications of federal licenses and permits to ensure compliance with the state ’ s or authorized tribe ’ s WQS.

Comments also expressed concern that the proposed rule “ required ” the adoption of a WQS variance before a state could issue a 401 certification that might include conditions that would require time for making improvements designed to meet WQS. EPA ’ s WQS variance rule does not require states or authorized tribes to adopt WQS variances. Whether to adopt a WQS variance is a decisio n for the stateChapter 3 – Response Essays 8.f.ii – Var App – Permitting & 303(d)

or tribe to make. EPA ’ s rule does not restrict the ability of states and authorized tribes “ to provide time for an applicant to submit plans, conduct studies, and implement project modification and restoration to bring a project into compli ance with WQS ” i n the ir 401 certifications. The existing requirements of CWA section 401 and EPA ’ s implementing regulations are not changed by today ’ s final rule. The central feature of CWA section 401 is the state or authorized tribe ’ s ability to grant, g rant with conditions, deny

, or waive certification for federally licensed or permitted activities that may discharge into navigable waters. Many states and authorized tribes rely on 401 certification to ensure that federal projects do not cause adverse water quality impacts. By adopting a WQS variance, the state or authorized tribe lays the groundwork for issuing a certification (possibly with conditions, as per CWA 401(d)) that allows a federal license or permit to be issued as meeting applicable WQS (i.e., the WQS variance). If a state or authorized tribe issues a CWA 401 certification based on a WQS variance, EPA recommends that the state or tribe consider whether to include the applicable interim requirements from the WQS variance as conditions of its certification. Where a state or authorized tribe has an EPA

- approved p rovision authorizing the use of CS for WQBELs in NPDES permits

, it may issue a 401 certification with conditions that reflect its desire that a CS be issued f or the federal NPDES permits

. Since this is a rule of national scope, comments on a ny state

- specif ic rule related to certification requirements is outside the scope of this rulemaking.

Comments questioned whether a federal entity pursuing a permit or license subject to 401 certification needs to appl y to the relevant state or authorized tribe for the WQS variance . The final rule does not prohibit a state or authorized tribe from submitting a WQS variance to EPA for review even where no permit or license applicant is applying for a WQS variance. T he state or authorized tribe retains discretion to move forward with adoption of a WQS variance regardless of whether a federal entity has applied for it or not

.
Comments regarding what is allowed or prohibited under Title 40 of the Code of Federal Regulations ( CFR ) Part 121 (state certification activities requiring a federal license or permit) regulations are outside the scope of this rulemaking.

A comment raised the concern that the process for State adoption and EPA approv al of WQS variance s may make it infeasible for a permittee to obtain a WQS variance before the s tate issu es a 401 certification. This comment was made in the context of concerns that a WQS variance would be a prerequisite to obtaining a 401 certification. As clarified above, EPA ’ s final rule does not require any

s tate or authoriz ed t ribe to adopt a WQS variance. A s tate ’ s or authorized tribe ’ s s ection 401 certifications would be made on the basis for the applicable WQS which may, or may not, be a WQS
variance

. To the extent timing is a concern, EPA describes several ways that stat es and authorized tribes can structure their regulations to allow for streamlined processes for adoption and approval of WQS
variances in section II.E of the preamble to the final rule ( “ What is EPA ’ s Position on Certain Public Comments? ”). Additionally, this comment expressed concern about the difference in the proposed
maximum ten

- year duration of a WQS variance in relation to the possible length of some federal permits and licenses (e.g., 20 to 50 years). For the many reasons discussed in the preamble a nd response to comments, EPA has revised the allowed duration of a WQS variance , removing the ten

- year maximum

. If a state or authorized tribe decides to adopt a WQS variance in the context of a long

- term federal permit or license, any such WQS variance wi ll need to comply with the requirements for adoption of a WQS variance and will require EPA ’ s review and approval.Chapter 3 – Response Essays 8.f.ii – Var App – Permitting & 303(d)

EPA disagrees with the comment on CWA secti on 401 certification linked to EPA ’s inclusion of an additional attainability factor related to da m removal and restoration activities for justifying WQS variances to CWA 101(a)(2) uses (see section 131.14( b)(2)(i)(A)( 2 ) ). The commenter does not believe a new factor is needed for a state or authorized tribe to issue certifications “ for projects that wi ll take
some time. ” EPA discusses its rationale for including the new factor in the preamble to the proposed rule at 78 FR 54534

- 5453 (September 4, 2013) . As described above, adoption of WQS variances is a choice, not a requirement that is made by the stat e or authorized tribe.



### E. Current Water Quality **and Downstream Protection** 

Commenters expressed concern about how a WQS variance affects downstream dischargers and their permit limits

. Commenters said that a WQS variance in an upstream segment will increase the pollutant load in the downstream segment

, potentially negatively impacting the downstream discharger (s). As described in subsection B of this essay, the final regulation at section 131.14(b)(1)(ii) specifically prohibits a WQS variance that would allow the lowering of “ currently attained water quality .” T herefore, the upstream discharger cannot increase the load of the pollutant under the WQS variance. See EPA ’s response to code 8.f for additional discussion on currently attained water quality . Second, EPA ’ s NPDES permit regulations inc lude provision s at sections 122.4(d), 122.44(d)(1)(i)

, and 122.44(d)(4) that already require permit limits to account for protection of downstream WQS. Therefore, regardless of whether the upstream discharger has a WQS variance or not, the permitting authority of the upstream di scharger

must comply with those NPDES permit regulation s. Additionally, EPA recognizes that the water quality associated with the WQS variance (even once the WQS variance has achieved the HAC ) may s till cause or contribute to an impact downstream during the time period of the variance. However, since a variance establishes a timing mechanism to ensure feasible progress is made to improve water quality towards meeting the underlying designated use and criteria, a variance is expected to result in improving water quality over time and lessening any adverse impact to downstream WQS

. See also

“ Protection of Downstream Waters in WQS: Frequently Asked Questions ” ( http://water.epa.gov/scitech/swguidance/standards/library/upload/downstream

- faqs.pdf ).



### F. Interim Requirements and N **ational P**  **ollutant D**  **ischarge E**  **limination S**  **ystem Permits** 

With regard to comments on whether or not numeric interim requirements are necessary in a WQS variance and with regard to comments requesting that EPA clarify the relationship between WQS and municipal separate storm sewer system ( MS4 ) permit requirements, see EPA ’ s response to code 8.g.ii – Variance s Submission Requirements : Numeric Interim Requirements. In addition, to the extent that MS4 permits include numeric WQBELs, those effluent limits must derive from and comply with the applicable WQS . A WQS variance would serve as the appl icable WQS for the NPDES permitting purpose. EPA agrees in part with the comments concerning EPA ’ s characterization of a WQS variance as “ interim requirements. ” To address these and other comments, EPA has included a definition of “ WQS variance ”
in section 131.3(o) : a WQS variance is “ a time

- limited designated use and criterion for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable condition duri ng the term of the WQS variance ”. EPA has revised the language in section 131.14(b)(1)(ii)) to clarify that a WQS variance must include the requirements that apply throughout t he duration of the WQS variance

. Additionally, section 131.14(c) requires a ny limitations and requirements necessary to implement a WQS variance be included as enforceable conditions of the NPDES permit.Chapter 3 – Response Essays 8.f.ii – Var App – Permitting & 303(d)



### G. **Other**

EPA disagrees with comments that WQS variances are not WQS ( see EPA ’ s response to code 8.f.i – Variance s Applicability : Scope).

With regard to federally promulgated variance procedures in 40 CFR section 131.34 (Kansas) and section
131.40 (Puerto Rico) , EPA disagrees with the commenter ’ s characterization of those regulations. First, EPA proposed and is finalizing changes to both of those provisions so that they reference the final rule at

s ection 131.14. Second, the variance procedures in those two regulations were intended to allow the state or territory that was the subject of the promulgation to be able to adopt WQS variances to the WQS that are part of the same federal promulgation . Thos e variance procedures do not authorize or prohibit the stat e or territory from adopting WQS variances to their own WQS. Any resulting WQS
variance from either of the federal ly

- promulgated variance procedures must still be adopted by the state or territory and submitted for review and action by EPA under CWA section 303(c).

With regard to comment s on public outreach concerning WQS variances, the final rule does not direct states or authorized tribes to take a particular approach to notifying the public regarding the availability of WQS variances generally. However, whenever a state or authorized tribe adopts a WQS variance, it must meet the requirements for review and revising WQS, including holding a public hearing in accordance with section 131.20(b) a nd 40 CFR Part 25

.
In response to comments requesting that EPA include flexibility to develop a WQS variance for use by future permittees, EPA has provided clarification in section II.E of the preamble to the final rule that as

“ an alternative to identifying the specific dischargers at the time of adoption of a WQS variance for multiple dischargers, states and authorized tribes may adopt specific eligibility requirements in the WQS variance. This will make clear what characteristics a discharger must have i n order to be subject to the WQS variance for multiple dischargers. It is EPA ’ s expectation that states and authorized tribes that choose to identify the dischargers in this manner will subsequently make a list of the facilities covered by the WQS variance publicly available (e.g., posted on the state or authorized tribal website). ” See also discussion in EPA ’ s response to code 8.f.i – Variance s Applicability : Scope.

In response to comments on nonpoint sources (NPS) and waterbody variances see EPA ’ s respons e to code 8.g.v – Variance s Submission Requirements: Identification and Documentation of BMPs for NPS and to code 8.f .i – Variance s Applicability : Scope

.
EPA disagrees with comments suggesting “ states will be required to adopt formal rules, governing the

p rocedures by which variances will be reviewed and issued, creating a new burden on states... ” The final rule does not require states and authorized tribes to have WQS variance policies or procedures. Therefore, there is no additional or new burden related to development and submittal of WQS variance policies or procedures. The final rule at section 131.14 set s the requirements for WQS variances. However, the final rule does not prohibit states and authorized tribes from developing a WQS variance policy or pro cedure so long as such policies or procedures are not inconsistent with the final rule. See additional discussion in s ection II.E of the preamble to the final rule on this issue.

With regard to consultation and federalism impacts, see section IV of the preamble to the final rule, specifically sections D, E, and F.Chapter 3 – Response Essays 8.f.iii – Var App – Tech Eff L imits



## Essay **8.f.iii –**  **Variance s**  **Applicability : Variances and Technology** 

**- Based**  **Effluent Limits** 

**A. General Overall Comments** 

The U.S. Environmental Protection Agency ( EPA ) appreciates comments supporting the proposal that a variance shall not be granted if the designated use and criterion can be achieved by implementing technology

- based effluent limits required under sections 301(b) and 306 of the Clean Water Act (CWA) (pr oposed at Title 40 of the Code of Federal Regulations ( CFR ) section 131.14(a)(3))

. Supporters said that the proposal was consistent with the CWA , and that any other interpretation would not be

. EPA agrees.

Some comments expressed support in principle but q uestioned the need for the clarification, as in their view, a use is attainable if it can be attained by implementing technology

- based effluent limits which are practicable by definitio n. EPA’s view is that including this requirement is useful and prevent s confusion by ensuring that a minimum expectation is clear to all parties and has retained it in the final rule.

The final rule specifies at section 131.1 4 (a)(4): “ A State may not adopt WQS variances if the designated use and criteri on addressed by the WQS variance can be achieved by implementing technology

- based effluent limits required under sections 301(b) and 306 of the Act. ” The final rule also contains the following definition at section 131. 3(h): “ Water quality limited segment means any segment where it is known that water quality does not meet applicable water quality standards, and/or is not expected to meet applicable water quality standards, even after the application of the technology

- based effluent limitations required by sections 301(b) and 306 of the Act. ”

Some commenters requested that EPA should expressly provide in this subpart that States must only consider whether EPA

- promulgated national effluent limitation s guidelines (ELGs) could eliminate the need for the requested variance and further provide that States need not undertake a case

- specific best professional judgment analysis to fulfill the proposed standard set out in section 131.14(a)(3). EPA considers “technology

- based effluent limits required under section 301(b)” to include existing permit effluent limitations whether derived based on a nationally promulgated ELG s or, in the absence of a promulgated ELG, derived based on best professional judgement ( BPJ ). Congress intended that permits include technology

- based effluent limits whether based on an ELG or BPJ. EPA understanding of Congress’ intent is reflected in 40 CFR Part 125, specifically section 125.3(a) and (c) which state that “technology

- based effluent limits under Section 301(b ) of the Act represent the minimum level of control that must be imposed in a permit...” and establishes the methods for imposing technology

based requirements by providing three approaches: ELGs, case

- by

- case BPJ, or a combination of ELGs and BPJ. If compliance with current technology

- based permit limits would attain water quality standards ( WQS ) , a variance would not be needed or appropriate. See http://water.epa.gov/polwaste/npdes/basics/Water

- Qual ity

- and

- Technology -Based- Permitting.cfm

.
Technology

- based effluent limits required under CWA section 306, are new source performance standards (NSPS). In the absence of EPA

- promulgated NSPS, permitting authorities do use BPJ to derive
NSPS. But when permit s have effluent limits based on NSPS, a variance would not be appropriate if WQS would be attained by implementation of those NSPS effluent limits.Chapter 3 – Response Essays 8.f.iii – Var App – Tech Eff L imits

EPA also notes that the footnote regarding the “Hanlon Memorandum” cit ed in a number of comments is not rele vant to the technology

- based effluent limit provision in the WQS variances section of the final rule in section 131.14.

In regards to the exception described by one commenter where EPA promulgates a “best available technology [economically achievable] ” (BA T) ELG with allowance of an extended period of compliance and the facility cannot meet its water quality

- based effluent limit ( WQBEL ) until its BAT technology is in place, EPA does not agree that a WQS variance is the appropriate tool. In this circumstance a National Pollutant Discharge Elimination System NPDES permit compliance schedule (CS) for the WQBEL may be the appropriate tool to allow time install the technology. See section II.E of the preamble to the final rule for additional discussion on difference between WQS variances and ( NPDES ) permit CS

.
EPA disagrees that the final regulation should consider th e cost impact with regard to technology

- based requirements by adding the phase “economically feasible.” The final regulatory requirement does not contain this phrase as it is unnecessary. The final rule is consistent with the basic CWA requirements regardi ng technology

- based effluent limitations , which include economic considerations and do not require implementation of “any technology.” Technology

- based limitations for existing sources are based on best available economically achievable technologies. For i nformation about technology based limits under the CWA, see http://water.epa.gov/polwaste/npdes/basics/Water

- Quality

- and

- Technology -Based- Permitti ng.cfm

.

A commenter states that the rule should specify that a WQS variance cannot be adopted if the water quality criterion can be achieved with a combination of technology

- based requirements and /or aggressive permit requirements for best management pract ices (BMPs) such as low impact development for new development and retrofits for existing sources. EPA explained it s position above regarding issuance of variances when WQ S can be attained by implementing required technology

- based effluent limitations. Reg arding requiring “aggressive permit requirements” for the B MP s mentioned by the commenter, EPA’s po sition is that it is not appropriate to include such a provision in this WQS regulation. The NPDES permitting program will determine and implement the approp riate effluent limitations, including any BMPs for point sources. In addition, t he final rule encourages the use of BMPs via a pollutant minimization program (PMP) for WQS variances (see s ection II. E of the preamble to the final rule for a discussion of P MP s) and , in fact, requires a PMP when establishing the highest attainable condition (HAC) for the situation where there is no feasible pollution control technology. Additionally, EPA expects permit writers to avail themselves of the information that a state or authorized tribe provides in the WQS variance and supporting documentation regarding the actions that justify the length of the WQS variance. Specifically, the final rule at section 131.14(b)(2)(ii) specifies: “Documentation demonstrating that the term of the WQS variance is only as long as necessary to achieve the highest attainable condition. Such documentation must justify the term of the WQS variance by describing the pollutant control activities to achieve the highest attainable condition , including those
activities identified through a Pollutant Minimization Program, which serve as milestones for the WQS
variance. ” Permit writers can use this information as a source of milestones for permit terms and conditions that derive from the WQS varianc e. Further, regarding where nonpoint sources (NPS) are contributing to the pollution challenge that the WQS variance is intended to address and the state or authorized tribe is able to work with all stakeholders to adopt a WQS variance applicable to a wate r body or waterbody segment, the final rule requires identification and documentation of the NPS BMP s ( section 131.14 (b)(2)(iii) ). Commenters supp orting inclusion of BMP s in permit s before allowing a WQS
variance said that EPA should not promulgate rules that are a disincentive to consistent forward progress on improving water quality and meeting WQS . EPA does not agree that such a requirement isChapter 3 – Response Essays 8.f.iii – Var App – Tech Eff L imits

necessary because EPA’s stated goal in regards to WQS variances and the provisions in section 131.14

are design ed to lead to incremental progress towards the CWA goal of maintaining and restoring the chemical, physical and biological integrity of the nation’s waters.

Some commenters provided anecdotal examples of a state without NPDES authority that has not adopted variances as WQS revisions but rather through a coordinated EPA/state permitting process, and said that the current process should not have to be changed because it is unnecessary and burdensome. For comments regarding the need for EPA approval and disapproval of variances as WQS and possible coordination with the NPDES permitting process or other ways to streamline the administrative process

, see EPA’s respo nse to code 8.f.i. – Variance s Applicability : Scope and s ect ion II.E of the preamble to the final rule.

Some commenters said that the proposal regarding variances and need to implement technology

- based effluent limits should be the minimum regulatory requi rements for granting a varianc e. That states and authorized tribes should retain discretion on granting and adopting variances. EPA agrees that the final requirement regarding technology

- based limits must be met at a minimum, before granting a variance, bu t there are other conditions that are necessary to ensure the WQS variance process has a sufficient level of accountability, transparency, and flexibility. EPA’s view is that the final rule provides a structured approach to variances that still allows some state and authorized tribal discretion. See s ection II.E of the preamble to the final rule for EPA’s rationale for its approach for WQS variances.

For comments regarding the difference between the operational definition of WQS variances as “a time limited designated use and criterion” the characterization of WQS variances as “interim requirements,” see EPA’s response to code 8.f.ii – Variance s Applicability : Approved Variances and Permitting and
30 3(d).Chapter 3 – Response Essays 8.g – Var – Sub Requirements



## Essay **8.g – Var**  **iances: Sub**  **mission Requirements**

**A. Specific**  **Revisions to Rule Language**

The U.S. Environmental Protection Agency ( EPA ) disagrees with commenters suggesting replacement of the words: “ Submission Requirements ” with “ Minimum requirements of a WQS vari ance: ” or

“ documentation requirements. ” A water quality standards ( WQS ) variance is a WQS requiring EPA review and approval or disapproval. The suggested revision could be interpreted as states and authorized tribes not needing to submit the WQS va riance to EPA for review and approval and confuse the public. See Response to comment topic 8. c for discussion of why a WQS variance is a WQS subject to EPA review and approval or disapproval

.



### B. **General Submission Requirement** 

EPA disagrees with commenters that said EPA should not specify submission requirements for a WQS
variance. As discussed in the preamble of the proposed rule, the EPA has heard from states, tribes, and stakeholders that there is confusion, inconsistency, and mixed interpretations about how, when, and where variances may be used appropriately

. The final rule provide s more specificity and clearer requirements on the development and use of variances. The final rule also provides requirements to ensure that WQS variances are used appropriat ely. Such regulations will provide regulatory certainty to states and authorized tribes, the regu lated community, and assure the public that WQS variances will facilitate progress toward attaining designated uses

. When all parties are engaged in a transpar ent process pursuant to these regulations, states and authorized tribes can move past traditional barriers and begin efforts to maintain and restore waters. Including submission requirements in the final rule is an important part of achieving this goal.



### C. **General S**  **upport**

EPA thanks commenters supporting EPA ’ s goal of provide s more specificity and clearer requirements on the development and use of WQS variances

.



### D. **General S upport**  **for W ater**  **Q uality**  **S tandards**  **V ariance**  **L imitations**  **i ncluding 10**  **-Y ear**  **Term Limit**

Although EPA eliminated a specific limit for any single WQS variance term, the final rule instead contains several provisions to insure that WQS variances will be used to facilitate progress toward attaining designated uses

. See comment response topic 8.g.iii for discussion of WQS var iance expiration dates.Chapter 3 – Response Essays 8.g.i – Var Req – Info ID



## Essay **8.g .i**  **– Var**  **iances Submission Requirements: Identifying Information** 

**A. General**  **S upport** 

The U.S. Environmental Protection Agency ( EPA ) thanks the commenter for supporting the identification requirements of the final rule

.



### B. Definition o **f P**  **ollutant M**  **inimization P**  **rogram**
In response to commenters that suggested EPA better define the term “ pollutant minimization program (PMP),” EPA now includes in the final rule the definition of PMP at section 131.3( p)

. The final rule states that a PMP , in the context o f section 131.14, is a structured set of activities to improve processes and pollutant controls that will prevent and reduce pollutant loadings. In the preamble, EPA further explains that p ollutant control technologies represent a broad set of pollutant re duction options, such as process or raw materials changes and pollution prevention technologies

, practices that reduce pollutants prior to entering the wastewater treatment system , or best management practices (BMPs) for restoration and mitigation of the water body

.



### C. **Replace “S**  **ubmission ” w**  **ith “Minimum”** 

EPA disagrees with commenters suggesting to replace the word “Submission” with the word “Minimum”
in section 131.14(b) because it is important to ensure that states a nd authorized tribes understand that

a water quality standards ( WQS ) variance is a WQS requiring EPA review and approval or disapproval. The suggested revision could be interpreted by states and authorized tribes as not needing to submit the WQS variance to EPA for review an d approval

. See response to EPA’s response essay 8.g for additional information on submission requirements

. See also EPA’s essays for 8. c and 8.f.i for discussion of why a WQS variance is a WQS subject to EPA review and approval or disap proval.



### D. **Any W ater**  **Q uality**  **S tandards**  **V ariance**  **M ust**  **S pecify**  **a W**  **ater B**  **ody or W**  **aterbody S**  **egment**

EPA appreciates commenters suggested editorial changes that sought to ensure that any WQS variance identify the water body or waterbody segment to which it applies. EPA never intend ed to provide for a WQS variance that does not identify the water body or waterbody segment to which the WQS variance applies. The rule language was revised to clarify that any WQS variance must identify the water body/waterbody se gment(s) to which the WQS variance applie s (see section 131.14(b)(1)(i)).



### E **. Transparency**

See response topic 8.l for a discussion on how the final rule provides the transparency and accountability needed to ensure that WQS variances are used appropriately.Chapter 3 – Response Essays 8.g.i – Var Req – Info ID



### F. Renewal for **W aterbody**  **V ariances** 

See response topic s 8.i and 8.g.v for discussion of WQS renewal requirements and nonpoint source (NPS) BMP s related to WQS variances applicable to a water body or waterbody segment.Chapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req



## Essay **8.g .i**  **i – Variances Submission Requirements: Numeric Interim**  **Requirements**

**A. General**  **S upport** 

The U.S. Environmental Protection Agency ( EPA ) notes that several commenter s support the final rule ’s requirement that states and authorized tribes must specify a quantifiable highest attainable condition (HAC).



### B. **Eliminate the R**  **equirement to**  **E xpress**  **the H**  **ighest A**  **ttainable C**  **ondition N**  **umerically B**  **ecause I**  **t I**  **s I**  **ncompatible with W**  **ater Q**  **uality S**  **tandards V**  **ariances for C**  **ombined S**  **ewer O**  **verflow s**  **or O**  **ther W**  **eather -R**  **elated D**  **ischarges**

EPA notes that several commenters said EPA should eliminate the requirement that the HAC of a water quality standards ( WQS ) variance be specified numerically because it could be diff icult or impossible to estimate effluent quality associated with combined sewer overflows ( CSO s ) or other weather

- related

events

. EPA agrees that numerically estimating effluent quality associated with CSO s or other weather

related events can be impractica l. EPA never intended to require states and authorized tribes to necessarily estimate the concentration of pollutants associated with a WQS variance in ambient water or effluent

. EPA expects states and authorized tribes will choose to specify the HAC of a WQS variance as the concentration of a pollutant or pollutant parameter for many WQS variances because concentration is often a relatively stable measure of the pollutant or pollutant parameter in a discharge, and thus will likely be the method the p ermitting authority uses to specif y the water quality

- based effluent limit ( WQBEL ) is a National Pollutant Discharge Elimination System ( NPDES ) permit. However, EPA recognizes there may be cases were specifying the HAC as a concentration may not adequately characterize the discharge resulting in nonattainment of WQS. The final rule provides s tates and authorized tribes with the flexibility to express the HAC as numeric pollutant concentrations in ambient water, numeric effluent conditions, or other quantita tive exp ressions of pollutant reduction

. Examples of expressing the HAC with regard to CSOs include a maximum number of overflows

, a percent age of time attaining the underlying designated use, and high flow/velocity cutoff s suspending a WQS

. See: “ Guidance : Coordinating CSO Long

- Term Planning with Water Quality Standards Reviews ” ( EPA

- 833 -R- 01

- 002, July 31, 2001)

. An example of expressing the HAC with regard to selenium infiltration during wet

weather events includes a percent reduction in selenium concentration or load. As the commenter stated the state would also include pollutant minimization practices in the justification for duration of the W QS variance

.

Because EPA ’ s objective is to ensure a WQS variance results in measureable progress toward the underlying designated use, EPA replace d the word “ numeric ” in the proposed rule with the term

“ quantifiable expression ” in the final rule t o clarify EPA ’ s intended flexibility for expressing the HAC

. The requirement to specify a quantifiable expression of the HAC is an important feature of a WQS variance that facilitates development of NPDES permit limits and requirements and allows states, authorized tribes, and the public to track progress toward the ultimate goal of attaining the underlying designated use

.Chapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req



### C. **Eliminate the R**  **equirement to**  **E xpress**  **the H**  **ighest A**  **ttainable C**  **ondition N**  **umerically B**  **ecause I**  **t I**  **s I**  **ncompatible with M**  **unicipal S**  **eparate Storm Sewer**  **System P**  **ermits T**  **hat A**  **re B**  **ased on B**  **est M**  **anagement P**  **ractice s** 
As described in subsection B of this essay, t he final rules requires states and authorized tribes to provide a quantifiable express ion of the HAC

. This requirement is an important feature of a WQS variance that facilitates development of NPDES permit limits and requirements and allows states, authorized tribes, and the public to track progress. Some commenters said EPA should eliminate the requirement that the HAC of a WQS variance be specified numerically because such a requirement limits the applicability of WQS variances for stormwater discharges under municipal separate storm sewer system ( MS4 ) permits.

Clean Water Act ( CWA ) section 402(p)(3)(B)(iii) provides that stormwater permits for MS4 discharges

“ shall require controls to reduce the discharge of pollutants to the maximum extent practicable ... and such other provisions as the Administrator or the State determines appropriate for the control of such pollutants. ” Under this provision, the NPDES permitting authority has the discretion to include requirements for reducing pollutants in stormwater discharges as necessary for to meet WQS

. At the outset of both the Phase I and Phase II stormwater permit programs, EPA provided guidance on the typ e of WQBELs that were considered most appropriate for stormwater permits. See Interim Permitting Policy for Water Quality -Based Effluent Limitations in Storm Water Permits ( 61 FR 43761
, August 26, 1996; 61 FR 57425
, November 6, 1996) and the Phase II rulemaking preamble 64 FR 68753 (December 8, 1999). Under the approach discussed in these documents, EPA envisioned that in the first two to three rounds of permit issuance, stormwater permits typically would require impl ementation of increasingly more effective best management practices (BMPs). In subsequent stormwater permit terms, if the BMPs used during prior years were shown to be inadequate to meet the attainment of applicable WQS , the permit would need to contain mo re specific conditions or limitations.

EPA ’ s November 26, 2014 memorandum: “ Revisions to the November 22, 2002 Memorandum :

‘ Establishing Total Maximum Daily Load (TMDL) Wasteload Allocations (WLAs) for Storm Water Sources and NPDES Permit Requirements Base d on L A’s ’” provides guidance on how to include clear, specific, and measurable NPDES permit requirements and, where feasible, numeric effluent limitations , in NPDES permits for stormwater dischargers

. NPDES authorities have significant flexibility in how they express numeric limits in MS4 permits in addition to end

- of

- pipe limits, such as specifying on

- site stormwater retention volume or percentage or amount of effective impervious cover. Numeric limits in MS4 permits can also be expressed as system

- wide r equirements rather than as individual discharge location requirements such as effluent limitations on discharges from individual outfalls. To ensure section 131.14 is consistent with EPA regulation and policy on MS4 permits for stormwater discharges

, EPA r eplaced the word “ numeric ” with the term “ quantifiable expression ” to clarify that states and authorized tribes have the flexibility to express the HAC of a WQS variance for an MS4 discharger a

manner appropriate for MS4 permits.



### D. **Eliminate the R**  **equirement T**  **hat t**  **he H**  **ighest A**  **ttainable C**  **ondition B**  **e E**  **xpressed N**  **umerically**

As discussed in subsection B of this essay, t he final rules requires states and authorized tribes to provide a quantifiable express ion of the HAC

.Chapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req

EPA agrees that narrative criteria can augment numeric criteria in protecting designated uses, especially

w hen pollutan ts cannot be precisely measured. The CWA recognize s the importance of expressing chemical criteria in numeric form by requiring State adoption of numeric criteria for toxic pollutants (see
CWA section 303(c)(2)(B)). NPDES permit limits must derive from and comply with WQS. The permitting authority needs to translate a narrative WQS to derive a WQBEL or other permit conditions or requirements. Numeric criteria facilitate deve lopment of appropriate NPDES permits by providing the permitting authority with a more straightforward basis to determine WQBELs that derive from and comply with WQS.

EPA believes commenters have interpreted the term “ numeric ” to mean that EPA expects stat es and authorized tribes to express the HAC in all cases as a concentration of a pollutant or water quality parameter. This interpretation is incorrect. Although expressing the HAC as the concentration of a pollutant or water quality parameter will be appropriate in some circumstances, EPA recognizes that it may not be appropriate in other circumstances. EPA replaced the word “ numeric ” with the term

“ quantifiable expression ” so that the final rule now requires states and authorized tribes to provide a

q uantifiable express ion of the HAC

.
Some commenters expressed concern that: “ if the timeline of a variance is developed to attain the use and/or criterion (or the highest attainable use/and or water quality) at the end of the variance period, then logically the water body will be out of compliance with the interim use and criterion for much of the term of the variance until the final state is reached. In situations where longer term variances are used, this creates an untenable compliance situation for state s and dischargers. ” These comments suggest confusion between WQS variances and NPDES permit compliance schedules (CS)

. The preamble to the final rule explains that a WQS variance can be appropriate to address situations where it is known that the designate d use and criterion are unattainable today

, but progress could be made toward attaining the designated use and criterion, whereas a permit CS may be appropriate when the permittee needs additional time to modify or upgrade treatment facilities in order to meet its WQBEL based on the applicable WQS. The preamble of the final rule further explains that a permit authority could also grant a permit CS when the permittee needs additional time to meet its WQBEL based on the applicable WQS
variance such that a sch edule and resulting milestones will lead to compliance with the effluent limits derived from the WQS variance “ as soon as possible. ” If a WQS variance is about to expire and a state or authorized tribe concludes the underlying designated use is now attaina ble, it is not appropriate for the state or authorize d tribe to adopt a subsequent WQS variance. However, if a permittee is unable to immediately meet a WQBEL consistent with the now attainable WQS, and the permitting authority can specify an enforceable s equence of actions that would result in achieving the WQBEL, the permitting authority could grant a permit CS consistent with section 122.47. If the underlying designated use is still not attainable, the state or authorized tribe can adopt a subsequent WQS variance.

EPA disagrees with commenters that say EPA cannot require express ion of the HAC numeric ally (i.e. , a s a quantifiable expression) because NPDES effluent limitations are not required to be numeric. First, the final rule does not change, and stands alone from, the permitting regulations at Title 40 of the Code of Federal Regulations ( CFR ) Part 122. Second , the final rule itself recognizes the potential for non

- numeric permit conditions and requirements by speci fying an option to e xpress the HAC in a manner that includes the adoption and implementation of a p ollutant m inimization p rogram ( PMP ) , specifying in
section 131.14(c) that any [emphasis added] limitations and requirements necessary to implement the WQS va riance shall be included as enforceable conditions of the NPDES permit for the permittee (s) subject to the WQS variance, and explaining in t he preamble that the permitting authority must use any PMP included in a WQS variance to derive N PDES permit limits and requirements

.Chapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req

One commenter also stated support for that variances must specify (1) the highest attainable interim use and numeric criterion that apply during the term of the variance, OR (2) an interim numeric effluent condition that reflects the HAC for the permittee during the term of the variance. For the same reasons EPA has explained in this essay, EPA changed from “ numeric ” to “ quantitative e x pression. ”



### E. **Allow E**  **xpression of the H**  **ighest A**  **ttainable C**  **ondition as a Pollutant**  **Minimization Program o**  **r N**  **arrative S**  **tandard**

C ommenters said EPA should allow states and authorized tribes to specify a PMP or narrative WQS as the HAC of a WQS variance. I dentification and implement ation of a PMP can be an important part of a WQS variance that ensur es the WQS variance results in the maximum pollutant reduction achievable during the term of the WQS variance

. For example, t he final rule provides that , for discharger

- specific WQS variances, i f no additional feasible pollutant control technology can be ide ntified, the HAC can be expressed as the interim criterion or interim effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the State adopts the WQS variance, and the adop tion and implementation of a PMP (a similar provision exists for WQS variances applicable to a water body/waterbody segment)

. However, EPA does not agree with commenters that suggest a WQS variance need not specify the HAC that is not in some way quantitat ive

. An NPDES permit will include monitoring requirements for the pollutant(s) or pollutant parameter(s) with a WQBEL, and EPA sees no reason a discharger could not characterize its current effluent condition quantitatively on the basis of the monitoring d ata associate d with NPDES permit compliance. Characteri zing the HAC as both the interim effluent condition (or interim criterion) that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the

st ate or authorized tribe adopts the WQS variance, and the adoption and implementation of a PMP
meets EPA ’ s goal for the HAC to be both quantifiable and future reaching to drive progress towards the underlying WQS.



### F. **Identification of the H ighest**  **A ttainable**  **C ondition**  **I s**  **U nnecessary**  **B urden**  **on S**  **tates**

C ommenters expressed concern that requiring identification of the HAC in a WQS variance would impose an unnecessary burden on a state

. While the new requirement to identify the HAC may impose some burden, EPA does not agree that it is unnecessary. In fact it is a critically important element of ensuring that variances achieve the purpose intended to improve water quality with the ultimate goal being to attain designated uses and cri teria that reflect the objectives and goals of the CWA. For EPA ’s estimates of burden related to identifying the HAC, see the final Economic Assessment in the docket for the rulemaking. The CWA specifies a national goal at s ection 101(a) to restore and mai ntain the chemical, physic a l and biological integrity of the Nation ’ s waters and an interim goal in s ection 101(a)(2) that, “ wherever attainable, ” water quality provide for the protection and propagation of fish, shellfish, and wildlife and provides for re creation in and on the water

. The regulation of WQS variances in the final rule is consistent with the “ restore ” and “ wherever attainable ” aspect s of the se goal s because WQS variances are intended to allow incremental environmental progress toward the ulti mate goal of attaining the underlying designated use

.
The purpose of a WQS variance s is to provide states and authorized tribes with time to make incremental progress towards attaining a designated use that is not immediately attainable but may be attainable in the future

. Making incremental progress , however, requires an understanding of what is incrementally attainable . The final rule facilitates incremental progress by requiring states andChapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req

authorized tribes to identify what is incrementally attai nable in the time period the state or authorized tribe specifies will be the term of the WQS variance , and to set it as the goal of the WQS variance. The final rule refers to this incremental goal as the HAC. For discussion on the meaning of HAC, see respo nse Essay 8.c. The final rule requires a state or authorized tribe to identify the HAC and to specify in the WQS variance the HAC as the water or effluent quality goal to be achieved by the end of the WQS variance

term for discharger

- specific WQS variances (and as the interim use and criterion for WQS variances applicable to a water body or waterbody segment)

. Identifying the HAC and specifying the HAC as the incremental goal of the WQS variance facilitates development of NPDES permit limits and requirement s, and allows states, authorized tribes, and the public to track progress toward the ultimate goal of attaining the underlying designated use.



### G. **EPA S**  **hould A**  **llow W**  **ater Q**  **uality S**  **tandards V**  **ariances for**  **W ater**  **C onservation**  **and R**  **ecycling A**  **ctivities**

Comment was made that EPA should expand the availability of WQS variances via the new restoration factor proposed at section 131.14(b)(2)(ii) that read: “ Actions necessary to facilitate restoration through dam removal or other significant wetland or stream reconfiguration activities

... ” to include water conservation and recycling activities

. EPA did revise the proposed new restoration factor in the final rule. EPA added the word “ lakes ” such that section 131.14 (b)(2)(i)(A)( 2) now reads: “ Actions necessary to facilitate lake, wetland, or stream restoration through dam removal or other significant reconfiguration activities

... ” However, EPA did not include water conservation and recycling activities to this provision because there are other factors in section 131.10( g), which are incorporated by reference
into section 131.14, that are adequate to cover the need for a WQS variance based on water conservation or recycling activities, for example, the factors related to reduced flows or human caused conditions.



### H. **EPA S**  **hould A**  **llow the H**  **ighest A**  **ttainable C**  **ondition to**  **B e**  **E xpressed**  **N arratively** 

As discussed in subsection D of this essay, EPA agrees that narrative criteria can augment numeric criteria in protecting designated uses, especially when pollutants cannot be precise ly measured. However, EPA disagrees with commenters who said the final rule should allow states and authorized tribes to express the HAC using narrative statements only

. The CWA recognize s the importance of expressing chemical criteria in numeric form by r equiring State adoption of numeric criteria for toxic pollutants (see CWA s ection 303(c)(2)(B) ). NPDES permit limits must derive from and comply with WQS. A permitting authority needs to translate a narrative WQS to derive a WQBEL or other per mit condition s or requirements. Quantitative expressions facilitate development of appropriate NPDES permits by providing the permitting authority with a more straightforward way to determine WQBELs that derive from and comply with WQS.



### I. **Clarification on Pollution Mi nimization Program** 

EPA thanks commenters who noted that the term PMP is not clearly defined. EPA now defines PMP in the final rule now at section 131.3(p). See response Essay 8.g.i for additional discussion on the definition of PMP.Chapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req



### J. **It I**  **s U**  **nclear H**  **ow EPA ’**  **s P**  **roposed V**  **ariance R**  **equirements W**  **ould A**  **pply to**  **N arrative**  **C riteria** 

C ommenters said the regulation should allow a narrative expression of the HAC because they currently do not set interim numeric criteria or numeric effluent limits in their WQS variance s, and believe that requiring a numeric expression of the HAC for uses that currently have narrative criteria such as nutrients are inconsistent with allowing narrative criteria in WQS. Commenters also said requiring a numeric expression of the HAC is gene rally inconsistent with narrative criteria. EPA disagrees with these

comments.

As discussed in subsections B and D of this essay, EPA revised the final rule to (1) require a quanti fiable expression of the HAC, and (2) where there is no additional feasible pollutant control technol ogy that can be identified, to allow the HAC to be expressed with a quantitative component that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the state or authori zed tribe adopts the WQS variance plus the adoption and implementation of a PMP. EPA has determined that a quantifiable expression of the HAC is necessary and important even for narrative criteria because such an expression help s ensure that there will be water quality improvements (a key purpose of a variance) during the term of the variance. For pollutants with narrative criteria, the state or authorized tribe can perform studies during the analysis to support the justification of the WQS variance to identify, for example, the current level of water quality and a percent reduction that is achievable during the term of the WQS variance and use that information to articulate a “ quantifiable expression ” in the WQS variance

. In the s cenario where there is no additional feasible pollutant control technology that can be identified, EPA expects t he state or authorized tribe to identify the current water quality levels (including optimization of current pollutant control technologies) and use that information to provide the quantifiable piece of the expression along with the adoption and implementation of a PMP.



### K. **Reference to I**  **nterim C**  **onditions E**  **ncroaches on**  **S tate**  **P rimacy**  **and C**  **ould B**  **e I**  **nterpreted to**  **A uthorize**  **C onditions on**  **L and**  **U se**  **and N**  **onpoint S**  **ources ,**  **E xceeding**  **EPA ’**  **s C lean**  **W ater**  **A ct**  **A uthority** 

C ommenters said: “ As drafted, the reference to interim conditions that EPA could impose encroaches on state primacy and could be interpreted to authorize conditions on land use and nonpoint sources, exceeding EPA ’ s CWA authority ”. The final rule does not authorize EPA to impose interim conditions. A state or authorized tribe identifies and adopts “ requirements that apply throu ghout the term of the
variance ” that will achieve the HAC by the en d of the variance term

. The final rule at section 131.14(b)(1)(ii) provides the options available for a state or authorized tribe to articulate the HAC

. Once the WQS variance is approved by EPA, the HAC identified and adopted by the state or authorized tri be is the applicable WQS for CWA section 402 permitting and for issuing 401 certifications

. EPA ’s authority is to review and approve or disapprove the WQS variance as provided by CWA section 303 (c). With respect

to nonpoint source s (NPS) , EPA ’ s rule simply provides that for WQS variances applicable to a water body or waterbody segment

, states ’ and authorized tribes ’ submissions must include identification and documentation of any cost

- effective and reasonable BMPs for NPS. The regulation does n ot authorize EPA to compel enforcement of NPS controls. For additional discussion on WQS variances and NPS BMPs, see response Essay 8.g. v. For a discussion regarding state primacy, see response Essay 3a.Chapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req



### L. **The R**  **ule S**  **hould S**  **pecify T**  **hat the H**  **ighest A**  **ttainab le**  **C ondition**  **I s**  **D etermined**  **by the S**  **tate or A**  **uthorized T**  **ribe in**  **O rder**  **to A**  **void L**  **itigation**

Commenters suggest the final rule should specify that the HA U and criteria and the HAC “ are determined by the state based on data and information that the state determines is best available. ”
Commenters also said that the HAC concept is “ an invitation for litigation. ” EPA disagrees with the changes requested by the commenters. EPA also disagrees with commenters suggesting that EPA should include in the definition of a WQS variance that specifies the HAC as the “ condition during the specified time period that the State determines is highest attainable. ” Based on these and other comments, EPA did revise the definition of HAU to better link the definition t o the state ’ s or tribe ’ s analysis in the use attainability analysis ( UAA ) (see revised definition at 131.3( m) and also response Essay 5.e for more discussion on the definition of HAU). For information on EPA ’ s rationale on why the Agency did not and has not defined H AC in the same way as HAU, see response Essay 8.c. EPA notes that the final rule provides a variety of options for states and tribes to articulate the HAC. EPA disagrees that the expression of HAC, based on the final rule, will result in increased litigati on. While the states and authorized tribes have an critical role in the adoption of WQS variances, it is EPA ’ s position that the requirements included in the final rule regarding adoption of the HAC are important to ensuring essential considerations are ta ken into account in adopting WQS variances and that all states and tribes operate under the same set of requirements.

To the extent the commenters are suggesting that the rule should specify states and authorized tribes have sole authority to identify the HAC for WQS variances , EPA cannot agree . A WQS variance is a revised WQS subject to EPA review and approval or disapproval, requires a public process, and must be reviewed on a triennial basis. To ensure the process is subject to minimum requirements designed to protect both the outcome and process, EPA ’ s position is that the requirements in the final rule are necessary. Deferring to state and tribal discretion without such minimum requirements as set forth in the final rule, would diminish the important roles to be played by the public and EPA. T he CWA assigns
EPA an oversight role of reviewing and approving or disapproving state and authorized tribal WQS (CWA section 303(c))

. EPA ’ s position that the requirements in the final rule are needed to ensure an outcome that will advance the intended purpose of a WQS variance – to improve water quality – and to have objective requirements on which EPA and the public can evaluate whether that outcome is met.



### M. W **ater Q**  **uality S**  **tandards V**  **ariance R**  **enewal**

Commenters expressed concern that a variance renewal will be denied “ if the applicant did not comply with the condition s of the original WQS variance. ” This issue is addressed in response Essay 8.i.



### N. **Expiration D**  **ate of a W**  **ater Q**  **uality S**  **tandards V**  **ariance**

Commenters said the rule should allow the state to specify the expiration date of a WQS variance “ as the State determines the WQS can be met. ” EPA disagrees with this comment. WQS v ariances should not be open ended and should specify an end date based on the underlying analysis. However, in the final rule EPA no longer specifies a federal maximum term for a WQS variance. States and authorized tribes must justify the duration and provide supporting documentation. See also response to Essay 8.g.iii for more d iscussion on the expiration date issue.Chapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req



### O. **Seasonal W ater**  **Q uality**  **S tandards**  **V ariances** 

The final rule does not prohibit a “ seasonal variance. ” If a state or authorized tribe demonstrates that the underlying designated use is not attainable during a particular time of year, then a WQS variance during the time of year when the designated use is not attainable would be appropriate provided that the WQS variance meets the requirements of section 131.14. One of the requirements specified in paragraph (b)(1)(ii) provides that the state or authorized tribe must specify a quantifiable expression of the HAC of the water body or waterbody segment. In this c ase , one quantifiable component of the HAC would be time period during which the interim requirements of the WQS variance are in effect

. However, where the seasonal WQS challenge is not expected to be improved or resolved over time, it may be more appropri ate for states and authorized tribes to revise their WQS to reflect a seasonal use change.



### P. **Levels C**  **urrently A**  **chievable p**  **lus a P ollutant**  **Minimization P rogram** 

C ommenters suggest ed that EPA clarify that in situations where no feasible wastewater treatment option can be identified to meet the designated use and the state or authori zed tribe expresses the HAC as the levels currently achievable and a requirement to develop and implement a PMP, identification of

a feasible wastewater treatment option need only take place at the time the state adopts the WQS
variance.

To clarify when and how states and authorized tribes may utilize a WQS variance in such situations, EPA revised the proposed rule in a couple of ways. First, EPA moved the language describing the option to express the HAC as the levels currently achievable and a requirement to develop and implement a PMP from the preamble of the rule to the regulatory text . S pecifically

, EPA revised the regulatory text to clarify that in situations where no additional feasible pollutant control technology can be identified, the
HAC may be expressed for discharger

- specific WQS variances as an interim criterion or interim effluent condition (and for WQS variances applicable to a water body or waterbody segment as the interim use and interim criterion) that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the State adopts the WQS variance [emphasis added], and the adoption and implementation of a PMP

. Secon d, EPA included the definition of PMP in the final rule text at 131.3(p).

A WQS variance specifying the HAC in this manner can provide a mechanism for state s and authorized tribe s to retain a designated use that is not attainable even when all feasible pollutant control options are currently exhausted, but a state or authorized tribe believes that feasible pollutant control options may become available in the future. However, this does not mean a state or authorized tribe can use a WQS variance to maintain the status quo indefinitely. The discharger(s) subject to such a WQS variance not only must adopt and implement a PMP, but t he final regulation at sections 131.14(b)(1)(iv) and 131.14(b)(2)(ii) requires the term of any WQS variance to only be as long as necessary to achieve the
HAC , and 131.14(b)(2)(ii) further requires the state or authorized tribe to justify the term of any WQS
variance by describing the pollutant control activities that will b e implemented to achieve the HAC
, including those activities identified through a PMP

. This means the state or authorized tribe must specify a WQS variance term that is no longer than the time that can be reasonably justified to complete the pollutant cont rol activities specified in the PMP

. This is a reasonable position since a WQS variance is
time

- limited and states and authorized tribes can obtain a subsequent WQS variance if the underlying use and criteria continue to be unattainable and more progress t oward the underlying WQS can be made (and meeting any other of the requirements of section 131.14)

. The time needed to complete theChapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req

pollutant control activities specified in the PMP must reflect either the time needed to plan an action, time to implement an action, or time to evaluate the outcome of an action. If, after the term of the WQS variance, the state or authorized tribe finds that the underlying designated use is still not attainable, the

s tate or authorized tribe may adopt a subsequent WQS varianc e consistent with the requirements of
section 131.14 (which may include new pollutant minimization strategies or newly available pollutant control options ). A commenter asked what happens if all pollutant minimization options are exhausted. If this is truly the case, EPA notes that use removal is still an option under the regulations.



### Q. **Variances S**  **hould N**  **ot H**  **ave a**  **T ime**  **L imit** 

EPA disagrees with commenters that said EPA should not require a time limit for WQS variances. A WQS variance is defined in secti on 131.3(o) as a time

- limited designated use and criterion for a specific pollutant(s) or water quality parameter(s) that reflect the HAC during the term of the WQS variance. In order to promote consistency and clarity and to ensure that WQS variances are truly time

- limited, the final rule requires states and authorized tribes to specify the term of the WQS variance expressed as an interval of time from the date of EPA approval or a specific date. However, EPA eliminated the ten year maximum WQS varia nce te rm in the proposed rule. Instead, the final rule requires states and authorized tribes specify the duration of the WQS variance (i.e., by providing an expiration date ) only as long as necessary to achieve the HAC and consistent with the demonstration provi ded in section 131.14(b)(2). See comment response topic 8.g.iii for more discussion about the term of a WQS variance.



### R. **Needlessly C**  **omplicates and**  **E xtends**  **the Permitting P**  **rocess**

C ommenters said : “ the requirement to identify the highest attainable interim use and related specific interim numeric limit needlessly complicates and extends the permitting process by requiring a preliminary study to make these findings rather than focusing on the crux of the issue

- the determination as to whether a long

- term site specific standard is appropriate. ” As discussed in section II.E of the preamble to the final rule and in response Essay 8.c., EPA revised its approach regarding the articulation of the HAC in order to simply the options. For example, for discharger

- specifi c variances, EPA no longer includes the HAC to be articulated as the interim use and interim criterion and instead allows three options.



### S. **Should R**  **equire B**  **oth E**  **ffluent and**  **A mbient**  **H ighest**  **A ttainable**  **C ondition** 

C ommenters suggested that the rule should requ ire identification of both a numeric criterion and numeric effluent condition. Both ways of expressing the HAC are appropriate but EPA ’ s position is that it is not necessary that the HAC must be expressed in both ways. In light of that posit i on, EPA conclu ded it was appropriate to provide states and authorized tribes the flexibility to pick just one way of expressing the HAC if that was their choice. Of course they could choose to express the HAC in both ways. See section II.E of the preamble to the final r ule for a discussion of EPA ’ s rationale on the options for articulation of HAC and it rationale that interim criteria and interim effluent conditions are reasonable surrogates for the interim use and criterion. States and authorized tribe s often adopt disc harger

- specific WQS variances because requiring the discharger to meet the WQBEL of the NPDES permit would result in substantial and widespread economic and social impacts ( section 131.10(g)(6)). In such cases, the limiting factor specifies the highest attainable effluent condition, meaning that performing an analysis of what is not feasible to attain (i.e., the levels of pollutant control that caused substantial and widespread economic and social impacts) informs the state ’ s or authorized tribe ’ s determ ination of HAC for the duration of the WQS variance

. Although EPA agrees that monitoring and assessing the receiving watersChapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req

can be important to evaluate progress toward the underlying designated use, the CWA does not require states and authorized tribes to conduct ambient monitoring. To the extent states and authorized tribes conduct monitoring, th e public can use that information to compare the current ambient condition of the receiving waters with the criteria of the underlying designated use and determin e “ how much the variance varies from existing EPA

- approved scientifically

- based water quality standards ” without the need to estimate the difference in advance. EPA believes that requiring identification of both a quantifiable criterion and quantifiable ef fluent condition is unnecessary and could potentially hinder the use of WQS variances to make water quality progress.

C ommenters say that identification of both a numeric criterion and numeric effluent condition is necessary to protect existing uses. These commenters do not explain why both a numeric criterion and numeric effluent condition is necessary to protect existing uses. For more discussion on protection of existing uses and WQS variances, see response Essay 8f. Furthermore, the final rule does not distinguish between different types of uses with regard to the applicability of WQS variances

. The final rule provides WQS variance s for the purpose of making water quality progress when the underlying u se is not attainable in the near term . I t is importan t to provide a mechanism to make water quality progress toward the underlying use regardless of the type of use

.



### T. **EPA S**  **hould R**  **equire a P ollutant**  **Minimization P rogram**  **for E**  **very W**  **ater Q**  **uality S**  **tandards V**  **ariance**

EPA agrees that a PMP may often be relevant where a WQS variance is justified, and stat es and authorized tribes should, as a general matter

, consider a PMP when identifying the HAC for any WQS
variance. In fact, EPA specifically included language in the final rule at section 131.14(b)(2)(ii) to high light
PMPs in a state ’ s or authorized tribe ’ s description of the pollutant control activities that the state or authorized tribe anticipates implementing throughout the WQS variance term to achieve the HAC

. However, EPA cannot determine in advance all poss ible circumstances where a PMP may be appropriate and therefore concluded it is not appropriate to require a PMP for all WQS variances

. EPA recognizes the possibility that there may be circumstances where a PMP is not appropriate or even possible

. EPA believes preamble and regulatory text of the final rule provides sufficient requirements and guidance to ensure that states and authorized tribes include a PMP in a WQS variance when appropriate, and that including such a requirement in the final rule is u nnecessary and overly prescriptive. Furthermore, WQS variances must be reviewed and approved or disapproved by EPA on a case

- by

- case basis. EPA believes such oversight authority will ensure that WQS variances will appropriately reflect the HAC as required by the final rule.



### U. W **ater Q**  **uality S**  **tandards T**  **hat A**  **pply d**  **uring a**  **V ariance** 

EPA disagrees with commenters who said EPA should remove language regarding WQS variance limitations to 402 permitting and 401 certification in section 131.14(b)(1)(ii) of the proposed rule for the reasons they provided (as discussed below). However, EPA notes that the Agency restructured the submission requirements section based on other comments and the language these commenters refer to no longer exists in the submission requirements section. Some commenters suggest deletion based on their overall concern that WQS variances should be at state discretion and only variance policies should be reviewed and approved by EPA. For a response to the issue regard ing whether or not WQS
varian ces, themselves, are WQS that need EPA review and approval, see response Essay 8.f.i.Chapter 3 – Response Essays 8.g.ii – Var Req – Num Int Req

Another commenter suggested the deletion of that same language because they believe it conflict s with the requirements of CWA section 303(c)(3). For a response regarding this commenter ’s concern about
EPA “ utilizing a bifurcated approach for implementing WQS ” see response Essay 8.f.i. The commenter should also refer to response to 8.g.i for a response to their other suggested deletion to the “ Submission Requirements ” secti on

.Chapter 3 – Response Essays 8.g.iii – Var Req – Expir Date



## Essay **8.g.iii – Var**  **iances Submission Requirements: Expiration Date**  **s**

In the preamble to the proposed rule, the U.S. Environmental Protection Agency ( EPA ) referred to the

“ expiration ” date for water quality standards ( WQS ) variances. This term created concern and confusion

among some commenters that upon expiration, WQS variances could not be renewed or reissued. EPA ’ s proposed ten

- year maximum term was interpreted by these commenters to mean that a WQS variance would never exceed ten years, including t hat the WQS variance could not be renewed or reissued. This
was not EPA ’ s intention. EPA never intended that WQS variances could not be renewed or reissued if justified under the new regulation. While the final rule does remove the ten

- year maximum term, t he final rule still requires that all WQS variances must have a term limit

, based on the required justification, upon which the WQS variance ends (or expires) unless it is renewed or reissued in compliance with the final regulations.



### A. M **aximum T**  **erm**

Several commenters said that a 10

- year maximum term is too long for the term of a variance because variances should be for only short periods of time for very limited situations. Commenters suggested alternatives to a ten

- year maximum term such as five yea rs or three years

. Commenters said that a maximum WQS variance term of five years is more appropriate because five years represents one permit cycle, and requiring evaluation of a WQS variance at permit re

- issuance would be administratively efficient. Commenters also said that a five year maximum term is more appropriate because the “ Water Quality Guidance for the Great Lakes System ” (i.e., Great Lakes Initiative [ GLI ]) provides for a maximum WQS variance term of five years, and EPA cite s to the GLI in the preamble of the proposed rule as an example of how regulatory provisions for WQS variances encourage their appropriate utilization ( 60 FR 15366, March 23, 1995 ; Title 40 of the Code of Federal Regulations ( CFR )
Part 132 ). Commenters suggested a maximum WQS variance term of three years because three years represents one triennial review cycle during which states and authorized tribes are already required to review their WQS. Commenters suggested a maximum WQS variance term of six years because six years

repr esents two triennial review cycles, and also accommodates one National Pollutant Discharge Elimination System ( NPDES ) permit cycle plus one year to accommodate administrative delays in re

issuing the permit. Commenters said that EPA should include an administrative continuance mechanism
in section 131.14 to clearly provide that WQS variances will continue past any expiration period as long as the regulated entity submits a timely renewal application

. Commenters also suggested different comb inations of a maximum WQS variance term an d maximum number of permissible WQS variance renewals.

Commenters said that the proposed ten

- year maximum duration of a WQS variance was too long because the rule did not contain sufficient safeguards to ensure tha t the highest attainable condition (HAC) identified in the WQS variance is, in fact, the HAC , and shorter duration WQS variances were needed to ensure a timely reevaluation

. C ommenters also said the proposed rule did not adequately

ensure state s and author ized tribe s would incorporate better than expected water quality improvements in to the implementing NPDES permits, and shorter duration WQS variance s would ensure the permitting authority had the opportunity to do so. Commenters also said that the proposed rule will result in delayed or unrealized water quality improvements because it lacks accountability , and suggested that shorter duration WQS variance s would provide more accountability. These comments suggested a strong desire for more accountability in the final rule to ensure that WQS variances are usedChapter 3 – Response Essays 8.g.iii – Var Req – Expir Date

appropriately. Although EPA agrees that states and authorized tribes must be held accountable for utilizing WQS variances appropriately , EPA dis agrees with these commenters that the best way to do it is by shortening the maximum term of a WQS variance (see below).

Another group of c ommenters said that the proposed 10

- year maximum WQS variance term would result in unnecessary rulemaking burden

, discourage the use of WQS variances, and impede progress toward achieving designated uses. Many states use conventional rulemaking processes to fulfill the requirement that any WQS must be a binding provision adopted or established pursuant to state or tribal law

. Because a WQS variance is itself a WQS, many states and authorized tribes would need to adopt a WQS variance through the conventional rulemaking process that states identified as slow and administratively burdensome. Many commenters characte rized the proposed 10

- year maximum as an arbitrary time period unrelated to the water quality challenge the state or authorized tribe may be trying to address. These commenters stated that the 10

- year maximum term would create unnecessary state or tribal r ulemaking burden by requiring renewal of a WQS variance that may be initially justifiable for more than 10 years

.
Commenters expressing concern about rulemaking burden and unrealistic expectations associated with an expiration date and maximum 10

- year WQS variance term suggested that EPA lengthen or eliminate the maximum term of a WQS variance. These commenters suggested that doing so would result in achieving the same environmental benefits, while reducing rulemaking burden. Commenters suggested alternativ es such as increasing the maximum term of a WQS variance to 14 years to reflect the NPDES permit cycle, plus allowing for administrative delays in reissuing the permit. Alternatively, commenters suggested that, rather than specify a maximum WQS variance term, EPA should require that a WQS variance must be “ as short as possible ” and allow the state or authorized tribe to determine the appropriate term similar to how states and authorized tribes establish permit compliance schedules (CS)

. Some commenters sugg ested that if EPA were to eliminate the maximum variance term, EPA could require states and tribes to conduct “ inter im reviews at regular intervals. ”

EPA carefully considered all of the comments. EPA decided that the use of WQS variances would work best if the rule did not impose a set ten

- year maximum timeframe. EPA agreed with the comments that identified concerns with setting one maximum timeframe that would apply to all WQS variances. The proposed maximum ten

- year timeframe w ould impose additional regulatory burdens for reissuance of WQS variances in situations where it could be demonstrated at the time of WQS variance issuance that

mo re than ten years could be justified. Also, EPA decided that having the ten

- year maximum term may have an unintended consequence of implying that ten years could be the default term for a WQS variance. That was not EPA ’ s intent and the final rule requires WQS variances to have a term that is only as long as necessary and the term must be justified

. So while EPA decided not to include a maximum

ten

- year term limit in the final rule, the final rule does require that every variance have a term upon which the WQS variance will expire (section 131.14(b)(1)(iv))

. EPA also conclude d that the commenters

ge nerally were either concerned that the proposed rule d id not provide sufficient regulatory safeguards to ensure that WQS variances are used appropriately, or will result in an unnecessary rulemaking burden

, discourage the use of WQS variances, and impede p rogress tow ard achieving designated uses. To address both of these concerns in the final rule

, EPA made select revisions in the final rule to maximize accountability and minimize state and tribal burden.

To minimize state and tribal rulemaking burden, EPA removed the requirement that any WQS variance have a maximum term of ten years. Without a maximum ten

- year variance term, the rule provides states and authorized tribes with the flexibility to establish the term of the WQS variance that isChapter 3 – Response Essays 8.g.iii – Var Req – Expir Date

appropriate and justified for each WQS variance

. The final rule further reduces burden by providing greater flexibility in the way state s and authorized tribe s can articulate the HAC

. In particular, the final rule provid es states and authorized tribes the option , for discharger

- specific WQS variances, of articulating the HAC as only an interim criterion or as an interim effluent condition that reflects the greates t pollutant reduction achievable

. These provisions will ens ure that the final rule provides the needed flexibility states and authorized tribes need to utilize WQS variances for the purpose of mak ing progress toward achieving designated uses that are not immediately attainable but may be attainable in the future

. Finally, the final rule includes a requirement for WQS variances with a duration greater than 5 years to automatically incorporate the HAC that is identified during a reevaluation of the WQS
variance , which eliminates the need for an additional WQS rulemaking

.

To balance greater flexibility provided by elimination of a maximum variance term, the final rule includes several provisions to ensure state and authorized tribal accountability for utilizing WQS variances appropriately. First, the final rule requires states and authorized tribes to justify the term of

a ny WQS variance by including in the documentation submitted to EPA for review and approval or disapproval

, a description of the pollutant control activities that are expected to occur during the WQS variance term to achieve the HAC and make progress toward meeting the underlying designated use and
criteria. This provision will help ensure that each WQS standard is as short as possible, and addresses the concern by some commenters of a “ default ” t erm length dictated by a regulatory maximum term. Second

, for any WQS variance with a duration greater than 5 years, the final rule require s a sta te or authorized tribe to adopt into state or tribal reg ulation a schedule to reevaluate a WQS variance (with public input) no less frequently than every five years after EPA approves the WQS variance, and to submit the results of the reevaluation to EPA within 30 days of completion. EPA determined that requiring a reevaluation every five years will ensure that th e state or authorized tribe and public assess updated information and changed circumstances to determine whether continuation of the WQS variance continues to be justified. The results of the reevaluation must be submitted to EPA, allowing EPA to carry out its oversight role. To ensure that states and authorized tribes reevaluate the WQS
variance according to the schedule they have adopted

, the final rule also requires a WQS variance to include a provision that specifies the WQS variance will cease to be the applicable WQS for Clean Water Act ( CWA ) purposes if the s tate or authorized tribe does not reevaluate the WQS variance on the specified schedule or does not submit the results to EPA within 30 days of completion. Finally, to ensure that a state or authorized tribe utilizes the results of a WQS variance reevaluation to make water quality progress throughout the WQS variance term, the final rule requires states and authorized tribes to specify in the WQS variance tha t the HAC applicable during the WQS variance term shall be either the
HAC identified at the time the initial WQS variance was adopted

, or the HAC later identified during any required reevaluation, whichever is more stringent. These provisions will help ens ure “ prompt action to address nonattainment .” EPA determined that the combination of these refinements to the final rule removed the need for a maximum term of a WQS variance in the rule and addressed the concerns of commenters for achieving the desired en vironmental benefits from WQS variances.

The EPA concludes that all together, the provisions in section 131.14 of the final rule provide states and authorized tribes with the flexibility they need to utilize WQS variances effectively , while providing the

p ublic with the transparency and regulatory structure needed to ensure that W QS variances are utilized appropriately

.Chapter 3 – Response Essays 8.g.iii – Var Req – Expir Date



### B. **W ater**  **Q uality**  **S tandards**  **V ariances**  **S hould**  **N ot**  **L et**  **D ischargers**  **C ontinue in**  **S tatus**  **Q uo** 
EPA agrees with commenters that said a WQS variance “ should not be used to allow permanent dischargers that negatively impact the quality of waters of the US, ” allow dischargers to continue “ the status quo, ” or allow a WQS variance to become “ the acceptable norm. ” EPA ’ s position is that provisions in the fi nal rule address the concerns of the commenters.

The final rule includes several provisions to ensure that the requirements of a WQS variance are met as quickly as possible and that the result of a WQS variance is as much water quality progress as possible

. As described above , the final rule requires states and authorized tribes to provide to EPA

, documentation that the term of the WQS variance is only as long as necessary to achieve the HAC , and that such documentation must justify the term of the WQS vari ance by describing the activities and milestones that will occur during the WQS variance term (see section 131.14(b)(2)(ii)). In cases where a WQS variance requires the performance of certain studies, the state or authorized tribe must justify the term of the WQS variance in the context of the time required to perform those studies (as well as any other requirements of the WQS variance). The final rule requires states and authorized tribes to reevaluate a WQS variance longer than five years at least every f ive years, and submit the results of such reevaluations to EPA within 30 days. The final rule also requires states and authorized tribes to include in the WQS variance a provision that the WQS variance will no longer apply if the state or authorized tribe does not perform the reevaluations on the specified schedule or does not submit the results to EPA within 30 days. Additionally, the final rule requires states and authorized tribes to include a provision in the WQS variance that specifies the requ irements of the WQS variance as reflecting either the HAC identified at the time of the adoption of the WQS variance, or the HAC later identified during any reevaluation, whichever is more stringent

. Finally, the final rule requires states and authorized tribes to include all limitations and requirements necessary to implement the WQS variance as enforceable conditions of the NPDES permit for the permittee(s) subject to the WQS variance

. EPA believes these provisions in the final rule will ensure that the requirements of a WQS variance are utilized appropriately and will not lead to dischargers receiving variances that allow dischargers to continue to operate under the “ status quo ” when a better condition is attainable (which the Agency thinks should almost always b e the case either through improved treatment or implementation of pollutant minimization p rograms [ PMPs ]).



### C. **Renewals**

Commenters expressed confusion about the proposed rule ’ s requirements for an expiration date and what it meant for adopting a subsequent WQS variance

. Commenters said: “ The proposed rule at § 131.14(b)(1)(iii) proposed that the state o r authorized tribe specify the ‘ da te the WQS variance will expire ’ and required th at the expiration date must be ‘ as short as possible, but expire no later th an 10 years... ’” These comments suggest that commenters thought the proposed rule at
section 131.14(b)(1)(iii) only allowed a permittee one WQS variance for a total of 10 years, and that renewal of the WQS variance beyond a total of 10 years would not be all owed

. These c ommenters said that many water quality challenges would require more than 10 years to address, and that limiting a WQS variance to 10 years in total for any particular permittee would be insufficient.Chapter 3 – Response Essays 8.g.iii – Var Req – Expir Date

EPA does not intend to limit states and authorized tribes to a single WQS variance term. EPA clarifie s in the final rule that a state or tribe may adopt a subsequent WQS variance to replace a WQS variance that has or will expire provided that the new WQS variance satisfies all the requirements of section 131.14 (see section 131.14(b)(1)(iv))

.



### D. B **est M**  **anagement P**  **ractice s** 

Commenters said that EPA “ requires documentation for any subsequent renewals that includes

‘ whether and to what extent BMPs have been implemented to address the pollutant(s) subject to the water quality standard (WQS) variance and the water quality progress achieved during the WQS variance period. ’ This will establish a significant burden on permittees

... to generate proof for a regulatory standard t hat is not adequately defined and likely to be interpreted inconsistently across EPA regions. The likely outcome is increased costs for engineering and scientific studies, regulatory negotiations, and potential litigation .” The final rule only requires ide ntification and documentation of any cost

- effective and reasonable best management practices ( BMPs ) for nonpoint sources (NPS) related to the pollutant(s) and location(s) specified in the WQS variance that could be implemented for a water body to make prog ress towards attaining t he designated use and criterion for a WQS variance applicable to a water body or waterbody segment (one not limited to a specific discharger or dischargers)

. Such a requirement is not applicable to individual permittees such as described by the

commenter

. See comment response topic 8 .g.v for additional information on requirements related to

cost- effective and reasonable BMPs for NPS

.



### E. **Variance R**  **eview at the**  **E nd**  **of the W ater**  **Q uality**  **S tandards**  **V ariance**  **T erm** 

Commenters said: “ We are not certain why two reviews – during the triennial review and again at the end of th e variance term - are necessary ” or “ We support stating that variances do not need to be evaluated at each triennial review and that variance reviews would only take pl ace upon renewal of the applicable NPDES permit. ” The final rule does not require a review of the WQS variance at the end of the WQS variance term. The commenters may have misinterpreted the proposed rule ’ s requirement that

“ the state or tribe must meet th e requirements of § 131.14 and provide appropriate documentation of the steps taken to meet the requir ements of the previous variance ” as a requirement to review all WQS variance s at the end of the WQS variance term. EPA ’ s intention is to require the state or authorized tribe to submit sufficient documentation to allow EPA to review a subsequent renewal or reissuance of a WQS variance in the context of the water quality progress that was ma de during the previous WQS

term. See also the discussion s in subsection F and G of this essay which pertain to coordination of the reevaluations and triennial reviews and/or permit renewal.



### F. **Relationship b**  **etween the**  **T erm**  **of W**  **ater Q**  **uality S**  **tandards V**  **ariance and**  **the F**  **ive -Y**  **ear T**  **erm of a**  **N ational**  **P ollutant**  **D ischar**  **ge Elimination S**  **ystem P**  **ermit**

Commenters said that EPA should clarify how the term of a WQS variance and the term of the implementing NPDES permit will work together. One example given was when “ a variance expires before the permit expires. ” Commenters also said EPA should clarify that interim permit limits and other variance conditions continue to apply until such time as a variance or permit is renewed. Commenters questioned if a “ varianc e must be as short as possible... ” means that EPA could require WQS variances to last less than one permit term, and suggested that such a requirement “ could cause issues with the permit backlog by creating the need to modify and reissue permits mid

- term. ” The final rule specifiesChapter 3 – Response Essays 8.g.iii – Var Req – Expir Date

that the term of a WQS varianc e must be only as long as necessary to achieve the HAC

. For a response to these and other comments on the coordination of NPDES permits and the term of a WQS variance, including comments on administratively continued permits, see EPA ’s response essay for c ode 8.f.ii.

Commenters also recommended EPA clarify the rule to state that the ten

- year term commences to run upon issuance of the permit or permits implementing the variance because state regulatory processes to approve a variance policy and to issue permits implementing the variance can each be very lengthy.
T he final rule does not specify a maximum WQS variance term. As such, EPA does not envision there being a problem with synchro nizing efforts to improve water quality (as may be required in a permit) and the term of the variance.



### G. Triennial R **eviews of**  **W ater**  **Q uality**  **S tandards**  **V ariances** 

Commenters s aid that a WQS variance should not need to be reviewed as part of the triennial review
process. Commenters also interpreted the proposed rule to specify that the WQS variance review process is to be reviewed on a triennial basis rather than a triennial review of individual variances, and that clarification is necessary. EPA disagrees with these comment s. A WQS variance is a WQS subject to the same review and public participation requirements specified in section 131.20 as any other WQS. Although a WQS variance is subject to the review and public participation requirements specified in
section 131.20, traditionally, reevaluation of WQS variance s during triennial review s may not have always receive d the attention they warrant ed

.
Therefore, s eparate and apart f rom the traditional triennial review process, the final rule includes requiremen ts for reevaluation of WQS variances with terms longer than five years. I n practice, many states and authorized tribes that currently utilize WQS variances actively reevaluate WQS variances in association with their expiration and renewal. Such a mechanism may be sufficient for a WQS variance with a relative short duration (e.g., less than 5 years), however, the public could not reasonably expect expiration and renewal to properly function as a reevaluation mechanism for a WQS variance with a long duration. As an alternative to the proposed ten

- year maximum WQS variance term, the final rule eliminated any maximum term and instead requires states and authorized tribes to reevaluate all WQS
variances (with terms greater than 5 years) at least every five years. EPA expects states and authorized tribes to proactively search for new or updated data and information during each WQS variance reevaluation and allow for public involvement

. New or updated data and information includes but is not limited to new informati on on pollutant control technologies, changes in pollutant sources, flow or water levels, economic conditions, and BMP s that impact the HAC or the time needed for the WQS
variance.

To provide sufficient assurance that a state or authorized tribe would actively reevaluate a WQS variance at a reasonable and predictable interval, t he final rule includes the requirements that a state or authorized tribe include a schedule of reevaluations that must begin within 5 years of the EPA ’ s approval and occur no less frequently than every five years, specify how the s tate or authorized tribe intends to obtain public input on the reevaluations, submit the results of the reevaluations to the EPA within 30 days of the completion, and include a provision in the WQS variance that states the WQS variance will cease to be the applicable WQS for CWA purposes if the state or authorized tribe does not c onduct the reevaluation on the specified schedule or does not submit the results of the reevaluation to the EPA within 30 days of completion. The EPA chose five years as the maximum interval between reevaluations because five years is a single permit cycle, and a state or tribe can use the flexibility in the provision to synchronize the reevaluation schedule with the NPDES permit reissuance process or with their triennialChapter 3 – Response Essays 8.g.iii – Var Req – Expir Date

reviews. The EPA notes that specifying five years as the maximum interval between reev aluations does not preclude a state or authorized tribe from requiring reevaluation of a WQS variance at shorter intervals if deemed appropriate. However, the final rule requires that states and authorized tribes include a provision in the WQS variance that the WQS variance will no longer be the applicable WQS for CWA purposes if the state or authorized tribe does not conduct the reevaluation consistent with the scheduled specified in the WQS variance or if the results are not submitted to EPA as required ( section 131.14(b)(1)(vi)).

Although a state or authorized tribe may choose to reevaluate a WQS variance during the triennial review, the EPA recognizes that many states and authorized tribes prioritize their triennial review of standards and are more likel y to critically evaluate a WQS variance in association with reissuance of the implementing NPDES permit. It is important to note that WQS variance reevaluations on a five

- year permit cycle would not replace the requirement to conduct triennial reviews. If the state or authorized tribe chooses to link the WQS variance reevaluation to its NPDES permitting process, the state or authorized tribe must nevertheless consider the WQS variance during the state WQS triennial review, even if a WQS variance term is sho rter than 5 years. The EPA notes that it does not take action to review and approve or disapprove the results of a WQS variance reevaluation under CWA section 303(c)(4)(A)

. However, the results of the reevaluation will be important to ensure that re -issued permits continue to derive from and comply with applicable WQS and could inform an Administrator ’ s Determination under CWA section 303(c)(4)(B)

.



### H. **General S**  **upport**

EPA acknowledges comments supporting the proposed rule.



### I. **How to A**  **rticulate the T**  **erm of the**  **V ariance** 

C ommenters suggested that EPA allow alternative ways to express the term of a WQS variance and opposed the rule ’ s specific ten

- year maximum term. T he final rule requires states and authorized tribes

to include a definite term for the WQS va riance (at which time the variance either ends or must be renewed or reissued) , but no longer includes the ten

- year maximum ter m

. The final rule also allows

s tates and authorized tribes to articulate the term of a WQS variance that is as short as possible and is consistent with the demonstration provided in section 131.14(b)(2) by either specifying an interval of time with respect to EPA

- approval of the WQS variance, or a specific date

.


### J. **Should N**  **ot P**  **rohibit M**  **odifications to a W**  **ater Q**  **uality S**  **tandards V**  **ariance b**  **efore I**  **t E**  **xpires**

Commenters said that nothing in the final rule or preamble to the final rule should prohibit a state ’s authority to adopt revisions to a WQS variance, or to replace any provision of a WQS variance prior to its expiration date. EPA agrees with this comment. Nothing in the final rule or preamble to the final rule prohibits a states and authorized tribes from adopting revisions to a WQS variance, or to replace any provision of a WQS variance prior to its expiration date provided that the revisions are consistent with all the provisions of section 131.14. Similar to the WQS variance itself, revisions to a WQS variance is a revision to a WQS subject to public participation requirements and EPA review and approval or disapproval.Chapter 3 – Response Essays 8.g.iii – Var Req – Expir Date



### K. **Perfo rmance**  **-B ased**  **A pproach** 

Commenters said that WQS variances should have performance

- based requirements, not a prescriptive time limit as all WQS variances do not fit into a single category

. EPA does not agree that performance

based requirements should be adop ted for variances. As described in “ EPA Review and Approval of State and Tribal Water Quality Standards, ” 65 FR 24641

- 24653, April 27, 2000, t he ‘‘ performance

- based ’’ approach may be suited for deriving site

- specific numeric criteria and for interpreting n arrative criteria into quantifiable measures because it can result in consistent application of State and Tribal narrative water quality criteria and defensible site

- specific adjustments to numeric ambient water quality criteria.
S ite specific translations of narrative water quality criteria and site specific adjustments to numeric ambient water quality criteria take additional information into account while protecting the designated use. As such the intended level of protection is no way modified

. Changes to designated use s and WQS variances, however, do not lend themselves to a ‘‘ performance

- based ’’ approach because criteria changes modify the intended level of protection. In addition, making use changes and issuing variances for CWA section 101(a)(2) uses must include an evaluation of ‘‘ attainability ’’ of a designated use, taking
into account factors such as natural conditions or economic and social impacts. See Title 40 of the Code of Federal Regulations ( CFR ) s ection 131.10(g) for the attainability facto rs

.



### L. Ten- **year M**  **aximum E**  **xpiration D**  **ate I**  **s U**  **nnecessary**

Commenters said that r equiring expiration of WQS variances no later than 10 years after state adoption is unnecessary because “ any variance must be renewed as a part of the state triennial review process .” The final rule does not require renewal of a WQS variance as part of the state triennial review process. In addition, the final rule does not require a maximum WQS variance term of ten years. States and authorized tribes m ust specify the term of a WQS variance and justify the term. T he final rule requires reevaluation of a WQS variance with a term longer than five years at least every five years. Requiring reevaluation at least every 5 years will ensure that WQS variances are utilized appropriatel y. For WQS variances that are up for renewal at the time of a state ’ s or authorized tribe ’ s triennial review, the final rule does not prohibit utilizing the triennial review and related rulemaking process for adoption of revised WQS variances.

Commenters suggested that “ a variance could remain in effect until a State makes a determination that the WQS is attainable, through a UAA. ” This is contrary to EPA ’s long established position that WQS
variances are time

- limited

. This continues to be EPA ’ s position and the final rule includes, at section 131.3 (o) , a defin ition of a WQS variance as “ a time

- limited designated use and criterion for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable condition during the t erm of the WQS variance. ” A WQS variance without a term limit essentially could become a permanent change to the designated use and criterion, and does not achieve EPA ’ s objective of providing a mechanism to allow states and authorized tribes to make water quality progress , and ensure such progress is made, when the underlying designated use is not immediately attainable.



### M. **EPA S**  **hould R**  **equire a**  **W ater**  **Q uality**  **S tandards**  **V ariance**  **to B**  **e Re-J**  **ustified**
**at L**  **east E**  **very T**  **hree Y**  **ears**
Commenters said EPA should require States “ to review any variance at least every three years as mandated by Section 303(c) for all water quality standards, and which is consistent with the longstanding EPA requirement that ‘ the variance is granted for a specific period of time and must be re

justified upon expiration but at least every 3 years (Note: the 3

- year limit is derived from the triennialChapter 3 – Response Essays 8.g.iii – Var Req – Expir Date

review requirements of section 303(c) of the Act.) ’” EPA agrees that states and authorized tribes should be requ ired to review a WQS variance at least every three years. However, EPA disagrees that states and authorized tribes should be required to re -justify a WQS variance at least every three years.

A WQS variance is a new or revised WQS subject to EPA revi ew and approval or disapproval, requires a public process, and must be reviewed on a triennial basis. The triennial review requirement applicable

to a WQS variance is the same for any WQS : CWA s ection 303(c)( 1 ) requires states and tribes to hold public hearings a t least once every 3 years for the purpose of reviewing applicable WQS and, as appropriate, modifying and adopting standards. However, the Act does not explicitly require “ re

justification ” of each and every WQS. I n the same way the Act do es not require re

- justification of every WQS, the final rule does not require re

- justification of every adopted WQS variance at each triennial review. See additional discussion under subsection G of this essay

.

In addition to the traditional triennial review , t he final rule requires states and authorized tribes to reevaluate WQS variances on a regular and predictable schedule. EPA ’ s position is that the reevaluation requirements in the final rule are sufficient to address the need for evaluating long

- term WQS variances on a periodic basis. EPA does not agree with the commenters who suggested a reevaluation and re

justification every three years. EPA ’ s final rule requires a re

- justification if the state or authorized tribe decides to renew or reissue the WQS va riance.

As described in other subsections of this essay, t o ensure that a WQS variance reflects the HAC throughout the WQS variance term, the final rule requires states and authorized tribes to adopt a provision specifying that the applicable interim WQS shall be either the HAC initially adopted, or a higher attainable condition later identified during any reevaluation for WQS variances longer than five years. This provision is required to be self

- implementing so that if any reevaluation yields a more strin gent attainable condition, that condition becomes the applicable interim WQS without additional action. Upon permit reissuance, the permitting authority will base the water quality

- based effluent limit ( WQBEL ) (and permit terms and conditions) on the more stringent interim WQS consistent with the NPDES permit regulation at section 122.44(d)(vii)(A). Where the reevaluation identifies a condition less stringent than the HAC , the state or authorized tribe must revise the WQS variance consistent with CWA requirements and obtain EPA approval of the WQS variance before the permitting authority can derive a WQBEL based on that newly identified HAC

.
In addition, the final rule requires states and authorized tribes to specify, in the WQS variance, the reevaluation frequency and how they plan to obtain public input on the reevaluation, and they must submit the results of the reevaluation to EPA within 30 days of completion. States and authorized tribes may specify the frequency of reevaluations to coincide with other state and authorized tribal processes (e.g.

, WQS triennial reviews or NPDES permit reissuance), as long as reevaluations occur at least every five years. Although EPA does not review and approve or disapprove the results of a WQS variance reevaluation, the results could inform whether the Administrator exercises his or her discretion to determine that new or revised WQS are necessary . The rule also requires states and authorized tribes to adopt a provision specifying that the WQS variance will no longer be the applicable WQS for CWA purposes if they do not conduct the required reevaluation (including public input) or do not submit the results of the reevaluation within 30 days of completion. EPA determined that this prov ision was the most effective way to ensure that the state or authorized tribe conducts the important and necessary five

- year reevaluation evaluation and provides the results of their review to EPA. In the absence of a

state or tribal reevaluation, EPA conc luded that the WQS variance should not continue. Rather than requiring a separate state action or EPA action, the final rule requires the initial state or tribal WQSChapter 3 – Response Essays 8.g.iii – Var Req – Expir Date

variance submission to include such a provision. If a state or authorized tribe does not reevaluate the WQS variance or does not submit the results to EPA within 30 days, the underlying designated use and
criteri on become the applicable WQS for the permittee(s) or water body specified in the WQS variance without EPA, states or authorized tribes taking an additional WQS action. In such cases, subsequent NPDES WQBELs for the associated permit must be based on the underlying designated use and criterion rather than the HAC , even if the originally specified WQS variance term has not expired.

EPA initially proposed a maximum allowable WQS variance term of 10 years to ensure that states and authorized tribes reevaluate long

- term WQS challenges at least every 10 years before deciding whether to continue with a WQS variance. EPA explained in the pream ble to the proposed rule that the purpose of this maximum WQS variance term was as follows: “ Establishing an expiration date will ensure that the conditions of a [WQS] variance will be thoroughly reevaluated and subject to a public review on a regular and predictable basis to determine (1) whether conditions have changed such that the designated use and criterion are now attainable; (2) whether new or additional information has become available to indicate that the designated use and criterion are not attainable in the future (i.e., data or information supports a use change/refinement); or (3) whether feasible progress is being made toward the designated use and criterion and that additional time is needed to make further progress (i.e., whether a [WQS] vari ance may be renewed). ”

Some comment er s suggested that 10 years is too long and does not provide adequate assurance that the state or authorized tribe will periodically reevaluate a WQS variance in a publicly transparent

manner. Other comment ers suggested t hat 10 years is too short because states often adopt WQS variances through conventional rulemaking processes and that such a maximum term would result in unnecessary rulemaking burden where it is widely understood that long

- term pollution challenges require more time to resolve. A 10

- year maximum could also discourage the use of WQS variances

. In
response, EPA concluded that establishing specific reevaluation requirements for WQS variances longer than five years is the best w ay to achieve EPA ’ s policy objective of active
, thorough , and transparent reevaluat ion by states and authorized tribes while minimizing rulemaking burden. The reevaluation requirements in the rule eliminate the need to specify a maximum WQS variance term b ecause they ensure the HAC is always the applicable WQS throughout the WQS variance term , thus driving incremental improvements toward the underlying designated use. These requirements also ensure the public has an opportunity to provide input throughout t he WQS variance term. EPA chose five years as the maximum interval between reevaluations because five years is the length of a single NPDES permit cycle

, allowing the reevaluation to inform the permit reissuance process. Although the rule does not specify a maximum WQS variance term, states and authorized tribes must still identify the WQS variance term and provide documentation demonstrating that the term is only as long as necessary to achieve the HAC . EPA will use this information to determine whether to approve or disapprove the WQS variance submitted for review, based on the requirements in section 131.14.



### N. **The R**  **ule S**  **hould A**  **llow EPA to**  **M odify**  **the T**  **erm (Expiration D**  **ate ) of the**  **V ariance** 

Commenters said that the final rule should provide that “ EPA reserves the right to modify the expiration date of the variance in the event that the state fails to demonstrate that the full timeframe requested is necessary.” These commenters are concerned that a WQS variance for a term longer than necessary will

“ dis courage prompt action to address non

- attainment ” of WQS. EPA agrees that states and authorized tribes must demonstrate the full timeframe of a WQS is necessary. However, EPA disagrees with the

commenter ’ s proposed method for achieving this outcome.Chapter 3 – Response Essays 8.g.iii – Var Req – Expir Date

The fin al rule at section 131.14(b)(iv) specifies that t he term of the WQS variance must only be as long as necessary to achieve the HAC 131.14(b)(iv). T o ensure EPA has sufficient information to determine whether the WQS variance is consistent with EPA ’ s WQS reg ulation, states and authorized tribes must provide documentation to justify why the WQS variance is needed. States and authorized tribes must submit all WQS variances to EPA for review and approval or disapproval. I f the state or authorized tribe does not adequately document the term of the WQS variance, EPA may disapprove the WQS variance. This is the more appropriate action that EPA attempting to modify a state or tribal submission. The state or authorized tribe can decide whether it wants to change its s ubmission to address EPA ’ s disapproval.

As discussed previously, the final rule includes several provisions (e.g., reevaluation, submittal of reevaluation results, inclusion of any more stringent HAC identified during the reevaluation) that provide a frame work for ensuring progress continues toward the designated use and criterion, even if the HAC identified in the WQS variance is achieved before then end of the WQS variance term.



### O. **Specific Q uestions** 

Commen t stated : “ WDNR requests clarification regarding the time period of the variance. Currently, in Wisconsin, variances are granted for the duration of a 5

- year permit term, however circumstances sometimes delay the reissuance of a permit and its corresponding variance. It is Wisconsin ’ s understanding that variances can only be granted for the length of one permit term. Four elements need to be addressed in this definition to make it clear:

1) How many years is a single variance designed to cover?

2) What happens if there is a reissuance delay

— can the variance be extended to cover that reissuance delay?

3) Can the variance be reissued, and if so, is there a maximum number of reissuances?

4) Is there an absolute timeline for the endpoint of a variance before a facility must ac hieve their WQBEL and will no longer be considered for a reissued variance ( i.e.
, a cap on the total number of variance years )?

For example: Does this statement mean that a single 10

- year variance will be granted to cover two permit terms at once? If so, c an the 10

- year variance be approved for a second 10 years? Is it the EPA ’s intent to continue to grant variances that extend for the length of the 5

- year permit term, including any reissuance delay beyond 5 years, but no more than 10 years rather than assigning a specific end date? (i.e.

, if the permit is not reissued until year 8, the single variance would cover it. However, what happens if the permit is not reissued until year 11?) Or does this statement mean that variances will be given an absolute expir ation date of 10 years from the first variance issuance (i.e. no more than one reissuance of a 5 year variance before the permittee must meet the WQBEL)? ”

The commenter asked a series of implementation questions, not specific comments requesting revisions to the proposed rule. EPA intends to issue implementation guidance which should address the questions raised by the commenter. Nevertheless, EPA provides the following responses to some of the

commenters ’ questions. The clarifications the commenter request ed are based on the “ understanding that variances can only be granted for the length of one permit term. ” The final rule does not restrict

state s and authorized tribes to any specific WQS variance term. The final rule specifies that i f, at the end of the variance, the underlying designated use remains unattainable, the state or authorized tribe may adopt a subsequent WQS variance(s), consistent with the requirements of section 131.14.Chapter 3 – Response Essays 8.g.iii – Var Req – Expir Date

The preamble of the final rule addresses many of th e comment er ’s questions about what happen s if a state or authorized tribe does not coordinate a WQS variance term with the expiration date of an NPDES permit . The preamble of the final rule also addresses how the final rule affects states and authorized

tr ibes under the 1995 Great Lakes Water Quality Guidance (GLWQG) because those requirements are different than the WQS variance requirements in final rule. For waters in the Great Lakes basin, states and authorized tribes must meet the requirements of both 4 0 CFR Parts 131 and 132. The practical effect of this requirement is that, where regulations in 40 CFR Parts 131 and 132 overlap, the more stringent regulation applies. In some cases, the flexibilities and requirements in the national rule will not be appl icable to waters in the Great Lakes basin. For example, the GLWQG limits any WQS variance to a maximum term of five years (with the ability to obtain a subsequent WQS variance). Therefore, any WQS variance on waters that are subject to the GLWQG cannot exc eed five years even though today ’s final rule in 40 CFR Part 131 does not specify a maximum term. On the other hand, because GLWQG WQS variances cannot exceed five years, the requirements in today ’ s final rule that pertain to conducting reevaluations (for WQS variances greater than five years) are not applicable.

EPA notes that some states and authorized tribes have specific WQS and /or permitting requirements that are not appropriate to address in this national rule. However, t hese states and authorized tri bes can work individually with EPA to address specific issues on a case

- by

- case basis. See also EPA ’ s response essay for 8.f.ii for more discussion on coordination of NPDES and WQS variance expiration. Additional
EPA guidance may also become available afte r publication of the final rule.



### P. Use **A ttainability**  **A nalysis**  **for a W ater**  **Q uality**  **S tandards**  **V ariance** 

Commenters said the rule incorporates the criteria for use attainability analysis (UAA) under section 131.10(g) to establish a variance. For WQS variances to CWA section 101(a)(2) uses, the final rule at
section 131.14(b)(2)(i) incorporates the factors in section 131.10(g) along with one additional factor. Additionally, t he preamble to the final rule discusses the level of “ scientific rigor ” required for a WQS variance as compared to a UAA required for changes to 101(a)(2) uses

. In summary, the level of rigor required for a WQS variance is no different than for a designated use change. However , the appropriate technical and scientific data r equired to support a designated use change and WQS variance can vary depending on the complexity of the specific circumstances

. EPA recognizes that the data and analyses often needed to support adoption of a WQS variance could be less complex and require l ess time and resources compared to removing a designated use because many WQS variances evaluate only one parameter for a single permittee for a limited period of time. The level of effort a state or authorized tribe needs to devote to a WQS variance will in large part be determined by the complexity of the water quality problem the state or authorized tribe seeks to address. See the preamble of the final rule for further discussion of this subject.



### Q. **Relationship b**  **etween W**  **ater Q**  **uality S**  **tandards V**  **ariance H**  **ighest A**  **ttainable C**  **ondition and N**  **ational P**  **ollutant D**  **ischarge E**  **limination S**  **ystem P**  **ermit W**  **ater Q**  **uality -B**  **ased E**  **ffluent L**  **imits**

Commenters said that establishing a WQBEL for a n NPDES permittee on the basis of the HAC in a WQS variance is inconsistent with making water quality progress. EPA disagrees with these commenters. The relationship between WQS variances and WQBEL for NPDES permits is extensively discussed in the preamble to the final rule. See also EPA ’s response essay for code 8.g.ii.Chapter 3 – Response Essays 8.g.iii – Var Req – Expir Date



### R. **Nonpoint So**  **urce C**  **ontrols**

Commenters said the effect of the rule will be “ Lulling all pollution sources and the political bodies (permitting agencies and state legislatures) into a 10

- year belief that water quality standards have been suspended. ” Commenters also said EPA should establish a maximum WQS variance term less than 10 years because “ making circumstances appear to be more dire should be a goal of EPA ’ s rules ” in order to pressure states and authorized tribes to do more to reduce NPS

. EPA di sagrees with these c ommenters. The goal of section 131.14 is to provide a regulatory mechanism for states and authorized tribes to make progress in meeting the underlying use and criteria for a water body. In a discharger

- specific variance (single or multiple dischargers), the WQS variance is implemented by reducing discharges from point

source s consistent with the approved WQS variance rather than remove the underlying designated use. EPA notes that in a WQS variance applicable to a water body or waterbody segment, the state or authorized tribe and stakeholders (including both point and NPS ) are working together to make progress toward the underlying WQS. EPA believes that “ making circumstances appear to be more dire ” perversely incentivizes removal of the underlying designate d use over incremental water quality improvement

. EPA agrees that it is possible a state or authorized tribe may ultimately find that, in a discharger specific variance, after reducing all point sources consistent with the requirements of the
CWA , the unde rlying designated use is still not attainable without further reductions in NPS of pollution. In such cases, the state or authorized tribe should continue to implement other water quality management options that include NPS controls or, if the stakeholders are willing participants, could contemplate the use of a WQS variance applicable to a water body or waterbody segment

. See response topic 8.g.v for more discussion about NPS of pollutants

.



### S. **401 P ermitting**  **and M**  **ixing Z**  **ones**

A c ommenter suggested striking out regulatory language in proposed section 131.14(b)(1) (ii) that provides for issuing certifications under section 401 of the Act based on a variance

. EPA rejects this comment because 401 certifications are to be based on applicable WQS. If an NPDES permit effluent limit is derived from a WQS based on a WQS variance, a 401 certification should be based on that WQS (see also EPA ’ s response to Essay 8.f.ii). The c ommenter also suggested adding in 131.14(b)(1)(ii)(B)

“ including increased pollutant loading allowed by changes in mixing zones. ” This final rule does not directly address mixing zones so EPA did not make the requested change. State or tribal m ixing zone policies/regulati o ns would continue to apply. However, as discussed i n EPA ’ s response essay for code 8.f, WQS variance may not result in any lowering of the currently attained ambient water quality (with the single exception for the new attainability factor related to dam removal and restoration) . As in the proposed rule, t he provision includes a single exception for the situation where a WQS variance is necessary for restoration activities under section 131.14(b)(2)(i)(A)( 2 )).



### T. **Commenter P**  **rovides I**  **nterpretation of the**  **P roposed**  **R ule** 

EPA thanks the commenters for describing their interpretation of the proposed rule. Public descriptions, interpretations, and perceptions of the proposed rule help EPA improve clarity and ensure the final rule accomplishes EPA ’ s goals and objectives.Chapter 3 – Response Essays 8.g.iv – Var Req – Supp Doc



## Essay **8.g.iv – Var**  **iances Submission Requirements: Supporting Documentation Demonstrating Need for Variance** 

**A. The**  **R equirements for a W**  **ater Q**  **uality S**  **tandards V**  **ariance Should Be L**  **ess t**  **han the R**  **equirements for a Permanent Use M**  **odification**

Commenters said that requiring states and authorized tribes to justify a water quality standards ( WQS ) variance using at least one of the six factors listed in section 131.10(g) “ provides the automatic assumption that a use attainability analysis is requir ed and the designated use must be removed or lowered to the highest attainable use. ” C ommenters suggested t he U.S. Environmental Protection Agency ( EPA ) clarify that the “ burden of proof to gain approval for a short term variance should be less than for approval of a permanent use modification. ”

The final rule at section 131.14 provide s the regulatory requirements for WQS variances. For WQS variances for Clean Water Act ( CWA ) 101(a)(2) uses, EPA decided that it was most appropriate to include the same fact ors for justifying a WQS variance as appear in section 131.10(g) for downgrading a use. The underlying concept behind both a use removal and a WQS variance (a time

- limited use and associated criteria) is attainability, as in the “ wherever attainable ” phras e in s ection 101(a)(2) of the CWA. Therefore, EPA determined it was appropriate to use the same factors for both regulatory provisions. The time

- limited nature of a WQS variance suggests an additional appropriate factor (restoration activities). It is difficult to compare a use removal demonstration with a WQS variance demonstration in terms of “ burden of proof ” or “ rigor of analysis ” because, although the same factors are the basis for justifying a use downgrade or a WQS variance, analyses for the two deci sions will be affected by the inherent differences between justifying a permanent downgrade and a temporary downgrade. For example, a WQS variance may be appropriate when there is compelling evidence of unattainability during the period of the WQS variance, but uncertainty in the final outcome of implementing pollutant minimization program ( PMP ) requirements. The type and level of analyses would be determined by the factors and time periods to be demonstrated. In contrast, a use removal is more appr opriate where there is more certainty in characterizing the h ighest attainable use (HAU) and substantial changes in conditions and circumstances are not anticipated. This may be a different type and degree of analysis but still based on one or more of the same fundamental factors for justifying a revision to the use. See the discussion in the s ection II.E of the preamble to the final rule which discusses whether there is a difference in “ rigor ” between the two types of analyses.

While the new rule includes the same factors for justifying a WQS variance for a 101(a)(2) use, requirements in the new rule careful ly balance the flexibility states and authorized tribes need to effectively utilize WQS variances, with the accountability and transparency the public needs to be assured that WQS variances are used appropriately

. The “ burden of proof ” needed to justify a WQS variance can vary depending on the complexity of the specific circumstances. Nevertheless , the EPA recognizes that the effort needed to support adop tion of a WQS variance will often be less than the effort needed to support removing a designated use

. A u se attainability analys is (UAA) needed to remove a designated use often require s evaluation of more than one water quality parameter, multiple

sources of pollutants, and extended time horizons. A WQS variance often evaluate s a single parameter for a single permittee for a limited period of time. The level of effort a state or authorized tribe needs to devote to a WQS variance will in large part be determined by the complexity of the water quality problem the state or authorized tribe seeks to address.Chapter 3 – Response Essays 8.g.iv – Var Req – Supp Doc



### B. **The Provision Allowing a W ater**  **Q uality**  **S tandards**  **Variance for R estoration**  **A ctivities**  **S hould be**  **Moved to Section**  **131.10(k)**

Commenters said that EPA should move t he provision allowing a WQS variance for restoration activities
to section 131.10(k). EPA disagrees with this comment. Section 131 .14 (b)(2)(i)( 2 ) provides for a WQS variance to undertake actions necessary to facilitate lake, wetland, or stream restoration through dam removal or other significant reconfiguration activities that preclude attainment of the designated use and criterion while the actions are being implemented. EPA intends for this provision to be time

- limited.
Section 131.10(k) pert ains to designated uses that are not time

- limited. Furthermore, the commenters do not explain the purpose of such a revision.



### C. **The R**  **ule Should I**  **nclude A**  **dditional F**  **actors T**  **hat Can B**  **e Used to Justify a**  **W ater**  **Q uality**  **S tandards**  **Variance**

Commenters said that EPA should expand the availability of WQS variances

. For example, c ommenters said EPA should add an additional factor that would justify a WQS variance for a natural disaster that causes significant damage to a water body or climate conditions that cause t he impairment of a water body for a period of several years. EPA considered expanding the list of factors justifying a WQS variance (beyond the addition of the factor related to restoration activities) but concluded that the current list

was as comprehensi ve as necessary as it stands. For example, section 131.10(g) already includes factor s that satisfy circumstances related to natural conditions or low flows , and the factor at section 131.10(g)( 3 ) generally addresses human

- caused conditions that cannot be r emedied. Under appropriate circumstances and with proper demonstration, these factors could address the examples suggested by the commenters.

Commenters said the requirements for a WQS variance “ would preclude the availability of a variance while the state agency develops site

- specific criteria. ” EPA disagrees with these commenters. The final rule does not preclude a state or authorized tribe from utilizing a WQS variance when the state or authorized tribe is studying or developing site

- specific criteria pr ovided the WQS variance is consistent with the requirements at section 131.14.

Commenters said of the new restoration factor proposed at section 131.14(b)(2)(ii) , “ Actions necessary to facilitate restoration through dam removal or other significant wetland or stream reconfiguration
activities

... ,” should include water conservation activities

. Commenters also said that EPA should revise the rule to allow a WQS variance “ for any activity whose primary purpose is restoration of a waterbody .” EPA agrees that th e proposed new restoration factor should be expanded and did so in the final rule but only to include the word “ lakes ” such that section 131.14 (b)(2)(i)(A)( 2) now reads: “ Actions necessary to facilitate lake, wetland, or stream restoration through dam remo val or other significant reconfiguration
activities

... ” However, EPA does not agree that specifically including water conservation activities is

necessary because the current factors address that concern. C ommenters also do not adequately explain why the e xisting factors in section 131.10(g) are inadequate. For example, commenters said:

“ water conservation activities also will necessitate a time

- limited lowering of water quality and the language of this provision should be redrafted to encompass this circumstance as well. For example, many California cities have been observing an increase in pollutant concentrations entering wastewater treatment plants as flow is reduced (due in part to water conservation activities) but mass remains the

same .” A state or au thorized tribe may justify a WQS variance under such circumstances on the basis of
section 131.10(g)(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,Chapter 3 – Response Essays 8.g.iv – Var Req – Supp Doc

preclude attainment of aquatic life protection uses ,” or section 131.10(g)( 6), “ Controls more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact. ”

Some c ommenters said the rule is generally too strict and that “ Other factors that would warrant a variance should be included, such as technical feasibility, competing stakeholder variances, and other watershed activities. ” In the past, s tates and authorized tribes have justified a WQS variance due to

“ technical feasibility ” issues by citing section 131.10(g)(6) , “ Controls more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread ec onomic and social impact. ” In those circumstances, the state demonstrated that the only way to meet strict permit limits is to implement expensive pollutant controls such as reverse osmosis and that such controls result in substantial and widespread econom ic and social impact

. Without further description from commenters of what “ competing stakeholder variances ” means, it is difficult to envision the specific scenario contemplated. However, as a general matter, if there is competition for use of the resource, the state or authorized tribe could use the list of factors in place for the final rule to effectively guide the determination of attainability. Commenters suggesting the rule should include factors to allow WQS variances for “ other watershed activities ” do not describe the watershed activities to include , but EPA cannot think of limiting watershed activities that would not be covered by the factors in place for the final rule

.
Commenters said the rule should provide for a WQS variance for “ other water qu ality improvement efforts that do not entail physical modification of a water (e.g., addressing a seep from historic mining activities). ” EPA disagrees with these commenters. Such a scenario appears to already be covered under
section 131.10(g)(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. ”



### D. **The R ule**  **Should Specify the P rocedures and**  **L evel of**  **E ffort**  **Needed to Utilize W**  **ater Q**  **uality S**  **tandards Variances** 

Commenters said: “ specific procedures, effort, and time [should] be indicated for achieving variances. ” The CWA provides state and authorized tribes with primary responsibility for administering their WQS program and assigns EPA with oversight responsibility. Most states and authorized tribes individually tailor their WQS procedures and processes to suit their own administrative structure. EPA cannot speculate on the procedures and level of effort any one state or auth orized tribe will require to adopt and submit a WQS variance. The preamble to the final rule provide s some guidance on general issues in response to public comments to the proposed rule. EPA encourages states and authorized tribes to work with their EPA regional office, stakeholders, and public to establish an administrative process to utilize WQS variances effectively and efficiently

. The economic analysis (EA) to the final rule also provides national average estimates of the level of effort and cost associated with several of the requirements in the final rule related to WQS variances.



### E. **The R**  **ule S**  **hould R**  **emove S**  **ome of the F**  **actors T**  **hat C**  **an Be**  **Used to Justify a W**  **ater Q**  **uality S**  **tandards Variance** 

Commenters said that several of the factors listed in section 13 1.10(g) are not relevant to WQS variances and thus should be removed. EPA disagrees with these commenters. Although states and authorized tribes may justify the majority of future WQS variances using a subset of the six factors listedChapter 3 – Response Essays 8.g.iv – Var Req – Supp Doc

in section 131.10(g), EPA cannot speculate on all the possible circumstances where a state or authorized tribe may appropriately utilize a WQS variance. The commenters do not explain, and EPA does not see the purpose of, removing any of the factors listed in section 131.10(g).



### F. **EPA S hould**  **N ot**  **R equire**  **U se of 1995**  **Economic G uidance**  **to Justify a W ater**  **Q uality**  **S tandards**  **Variance**

Commenters said EPA should not require states and authorized tribes to use its March 1995 Interim Economic Guidance for Water Quality Standards as a basis for determining whether an individual WQS variance has widespread “ social and economic impact. ” EPA does not require use of this guidance to meet the regulatory requirements. States and authorized tribes may use alternative approaches, subject to EPA review based on the regulatory requirements themselves. EPA ’ s Interim Economic Guidance for Water Quality Standards Workbook was developed to help consider economics at various points in the process of setting or revising WQS . The usefulness this guidance doc ument is beyond the scope of this final rule.



### G. **S trike**  **o ut**  **R egulatory**  **T ext** 

Commenter suggest ed striking out section 131.14(b)(2) that limits the requirement to justify a WQS variance based on the factors in 131.10(g) to variances for 101(a)(2) uses. Specifically, the c ommenter suggested the following revisions to the regulatory text: “ (2) The State must submit a demonstration justifying the need for a WQS variance [begin new text] by showing. [end new text] [begin strikeout] For a WQS variance to a use specified in section 101(a)(2) of the Act or a sub

- category of such a use, the State must submit a demonstration [end strikeout] that attaining the designated use and criterion is not feasible during the term of the WQS variance because: “

EPA carefully considered this comment and concluded it was reasonable and authorized by the CWA to distinguish between 101(a)(2) and non 101(a)(2) uses in establishing the requirements for a variance

. As explained in the preamble to the final rule, the CWA distinguishes between these two broad categories of uses and EPA has implemented the CWA to distinguish between these two categories

. Consistent with s ection 101(a)(2) of the Act, EPA concluded it was appropriate to limit the requirement for showing attainability to 10 1(a)(2) uses. See below for further discussion. See also response Essay 5.h for a discussion of EPA ’ s rationale for not requiring use of the 131.10(g) factors for use removal for non

101(a)(2) uses.



### H. **Uses N ot**  **S pecified in Section**  **101(a)(2) of the C**  **lean W**  **ater A**  **ct**

Commenters said that removing the requirement that states and authorized tribes justify a WQS variances to non 101(a)(2) uses such as drinking water and wild rice by demonstrat ing the use is not attainable due to at least one of the six factors sp ecified in section 131.10(g) will weaken protections for those uses. The CWA makes a distinction between 101(a)(2) uses and non 101(a)(2) uses and ties

“ wherever attainable ” to the former category and ties “ consideration of the use and value ” to both categories. Consistent with section 101(a)(2), EPA chose to limit to 101(a)(2) uses the requirement for demonstrating that attaining the designated use and criterion is not feasible because of one of the factors listed in section 131.10(g). As suc h, the final rule best reflects a reasonable implementation of the CWA. Th e final rule also clarifies that while states and authorized tribes are not required to demonstrate non

- attainability based on one of the six factors in section 131.10(g) when adopti ng a WQS variance to a non 101(a)(2) use, the state or authorized tribe must meet the requirements in sectionChapter 3 – Response Essays 8.g.iv – Var Req – Supp Doc

131.10(a) to submit documentation justifying how they have considered the use and value of a water. EPA determined that the “ use and value demonst ration ” implemented the prov ision in section 303(c)(2)(A) to take into consideration the use and value of waters for various uses when adopting WQS. EPA concluded that the use and value demonstration will still provide adequate protections in evaluating wh ether to adopt a variance for a non 101(a)(2) use. While a “ use and value demonstration ” provides a level of discretion to states and authorized tribes in determining whether to adopt a variance for a non 101(a)(2) use, EPA believes that the nature and variety among the non 101(a)(2) uses justifies this flexibility for states and authorized tribes to describe the use and value of such uses, after a public process consistent with section 131.20(b), just as any new or revised WQS. See also response Essay 5.h for a discussion of EPA ’ s rationale for not requiring use of the 131.10(g) factors for use removal for non

101(a)(2) uses. For additional discussion on what is required when removing or revising non 101(a)(2) uses (i.e., a “ use and value demonstration ” ), s ee s ection II.B of the preamble to the final rule

.

Commenters also said: “ This element of EPA ’ s proposal is a very significant weakening of CWA requirements that will have serious impacts on fish, aquatic plants and wildlife. ” EPA disagrees with this

comment. To the extent that criteria in place to protect a non 101(a)(2) use su ch as public water supply, agricultural

, or industrial use s also provide protection for fish, aquatic plants, and wildlife, EPA would expect the state or authorized tribe to ado pt the WQS necessary to specifically protect those designated

use s , and not inadvertently leave them unprotected by a removal of a non

- 101(a)(2) use

. That is, a state or tribe should protect CWA 101(a)(2) uses through the adoption of such uses and criteria to protect such uses.



### I. **The T**  **erm “F**  **easible ” S**  **hould Not Be in the Rule** 

Commenters said: “ The term “ feasible ” should not be included in the Proposed Rule. Establishing a feasibility requirement is contrary to CWA Section 301(b)(1)(C), which requires that water quality standards be met without regard to cost or feasibility when applying water quality based effluen t limitations ( “ WQBELs ” ). See, e.g., Upper Blackstone Water Pollution Abatement Dist. v. EPA, 690 F.3d 9, 33 (1st Cir. 2012). ” EPA disagrees with this comment. The term “ feasible ” is used in section 131.10(g). The feasibility of meeting WQS as provided in section 131.10(g) have been in effect since 1983, and EPA sees no reason to deviate from these long established principles. While CWA 301(b)(1)(C) does not include a provision for including “ feasible ” in deriving water quality

- based effluent limits ( WQBELs ) to meet the applicable WQS, such a consideration is appropriate in adopting the WQS.



### J. **Add R**  **egulatory T**  **ext**

Commenters suggest adding to the proposed section 131.1 4 (b)(2) the regulatory text : “ the State must meet the requirements of § 131.10(d) and (e), and must demonstrate that

... ”. EPA d etermined it is not necessary to add these provisions to section 131.14. The new rule does include requirements similar to the requirements related to technology

- based requirements in section 131.10(d) at section 131.14 (a)(4) and includes a requirement requiring identification and documentation of “ cost

- effective and reasonable BMPs for non

- point sources ” for WQS variances applicable to a water body or waterbody segment at section 131.14(b)(2)(iii) . EPA provided it ’ s rat ionale in the preamble to the proposed rule for why the requirement in section 131.10(d) for use changes was not carried forward to WQS variances verbatim . Specifically, the preamble states: “ The EPA ’ s proposed requirement for waterbody variances differs from those applicable to designated uses because variances are time

- limited and targeted serving as a tool to facilitate progress toward the designated use and criterion. It is unnecessary to require states and tribes to demonstrate that the designated use and criteria are unattainable even if costChapter 3 – Response Essays 8.g.iv – Var Req – Supp Doc

effective and reasonable best management practices ( BMPs ) were implemented, as is required when revising a designated use, because variances do not ‘‘ permanently ’’ downgrade the designated use but establish a regulatory mechanism by which feasible progress will be made during the term of the variance. Instead, a requirement to identify and document cost

- effective and reasonable BMPs for other sources will assist states and tribes in identifying the actions they may need to implement to meet their interim requirements as well as to make feasible progress towards attaining the designated use and
criterion .” (78 FR 54536

, September 4, 2013 ). EPA still considers this to be a valid rationale. Additionally,
EPA is deletin g section 131.10(e) in the final rule in a conforming edit as it may appear to be in conflict with public participation requirements at section 131.20 (b)

. See section II.G of the preamble to the final rule for EPA ’ s rationale for changes related to section 131.10(e). EPA requires WQS variances to be subject to the same public participation requirements as any other WQS per section 131.20(b).

Commenters said: “ The EPA is proposing to add a new factor to address the situation when a time

limited exceedence of a criterion might be expected while efforts for dam removal or significant wetlands or stream reconfiguration/ restoration efforts are underway to facilitate restoration of the natural physical features of a waterbody. Where is this referenced in the upda ted rule? § 131.10(g) appears to still only contain six factors. ” The factor is specified in section 131.14(b)(2)(I)(A)( 2 ).

Commenters said: “ Section F.2.b.ii. lists things to be considered when making a demonstration for

“ Human Caused Conditions... ” under § 131.10(g)(3). WDNR would li ke to recommend putting those
5 considerations in the rule itself rather than just in the pre

- amble. ” EPA does not consider that s uch additions are necessary or appropriate in the regulatory text. The discussion of these factors in the preamble sets for EPA ’ s position on these factors.



### K. **Support and Interpretation of the Proposed Rule** 

EPA notes that several commenters provided their support for the proposed rule in relation to the requirements for supporting documentation and ot hers described their interpretation of the proposed rule.Chapter 3 – Response Essays 8.g.v – Var Req – NPS BMP



## Essay **8.g.v – Var**  **iances Submission Requirements: Identification and Documentation of BMPs for NPS** 

**A. N onpoint**  **S ource**  **R equirements**  **E xceed EPA**  **’ s**  **A uthority** 

Some commenters stated that the U.S Environmental Protection Agency ’ ( EPA ’s) requirement in the proposed rule at section 131.14(b)(3) requiring identification and documentation of best management practices (BMPs) for nonpoint source (NPS) controls as supporting documentation for a waterbody variance exceeded EPA ’s Clean Water Act ( CWA ) authority and was inconsistent with C ongressional
intent. Commenters stated that the rule ’ s mandate to identify NPS controls that could be implemented is not authorized under CWA section 303(c). That EPA ’ s sole authority relating to identification of NPS controls is in CWA section 319. EPA does not agree with the commenters ’ interpretation of the CWA.

Section 101(a)(7) of the Act provides that “ ... it is the national policy that programs for the contro l of nonpoint sources of pollution be developed and implemented in an expeditious manner so as to enable the goals of this Act to be met through the control of both point and nonpoint sources of pollution. ” In 1987 Congress added section 319 to the CWA to i ncrease the focus on addressing NPS pollution in recognition of the significant impact that NPS have on the nation ’ s waters. However, section 319 is not the only program under the CWA that addresses NPS pollution. The section 303(d) total maximum daily lo ad (TM DL ) program is a clear example. CWA s ection 303(d) has been a part of the CWA since 1972. It requires that states identify waters not meeting water quality standards (WQS) and establish TMDLs for those waters whether the waters are impaired by point sources, NPS or a combination of both. TMDLs include load allocations for NPS ( Title 40 of the Code of Federal Regulations ( CFR ) s ection 130.7 ). If wasteload allocations (WLA) for point sources are to be made less stringent based on assumed reductions by NPS , the states must provide reasonable assurance that the NPS reductions will occur.
EPA ’ s interpretation of section 303(d) to include consideration of NPS pollution has been upheld and
EPA ’ s implementation of those provisions have been upheld judicially. Prosolino v. Nastri , 291 F.3d. 1123 (9 th Cir. 2002); see also American Farm Bureau Federation v. EPA, ___F.3d _ (3d.Cir. 2015). The requirements in the final rule regarding identification and documentation of NPS BMPs is consistent with C ongressional inte nt and within EPA ’ s authority under the CWA.

Some comments asserted that EPA ’ s rule was an attempt to exert authority over NPS and compel implementation of NPS controls. Another commenter said that EPA ’ s rule would “ federalize ” NPS controls. EPA ’ s rule requires the identification and documentation of BMPs for NPS controls for WQS variances applicable to a water body or waterbody segment . EPA ’ s rule does not compel or require the
im plementation of such controls. But EPA ’ s rule reasonably does require the con sideration of NPS contributions and cost

- effective and reasonable BMPs to address those contributions in deciding whether a WQS variance is appropriate. Additionally, for a subsequent WQS variance applicable to a water body or waterbody segment, EPA ’ s final rule also reasonably requires the state or authorized tribe

to “ include documentation of whether and to what extent best management practices for nonpoint source controls were implemented to address the pollutant(s) or water quality parameter(s) subject to the WQS variance and the water quality progress achieved. ” Again, this documentation is needed so that EPA and the public can understand what solutions to the water quality challenge that the state or authorized tribe has tried prior to a subsequent WQS variance. See also response Essay 8.i for discussion

on “ renewal ” or “ subsequent ” WQS variances.Chapter 3 – Response Essays 8.g.v – Var Req – NPS BMP

Other c ommenters urged that EPA ’ s rule be limited to identifying and documenting only those BMPs that are required under state law. Commenters expressed concerns that EPA ’ s proposed rule could be

“ misinterpreted to improperly bootstrap a requirement for BMPs not otherwise required as a condition of the variance. ” They recommended that section 131.14 (b)(3) refer to cost

- effective and reasonable
BMP s for NP S controls otherwise required by law

.
EPA recognizes that the CWA gives states and authorized tribes discretion on how to control pollution from NPS

. Importantly, WQS established pursuant to CWA section 303 apply to the water bodies themselves, regardless of the source(s) of pollution/pollutants. WQS express the desired condition and level of protection for a water body

. EPA determined that in the context of developing appropriate regulations for adopti on of WQS variances applicable to a water body or water body segment as new or revised WQS , it was both important and necessary to take NPS into account. EPA further determined that it was important to include in the requirement to identify and document BMPs for NPS controls all

cost- effective and reasonable BMPs, not just those currently required by state or tribal law. To restrict the BMPs in such a way would remove

, even from consideration

, BMPs that may be the most cost

effective and appropriate BMPs. Consistent with the objectives of WQS variances, to impro ve water quality moving toward ultimate attainment of the underlying WQS, it was reasonable to include the broader requirement in the final rule

.

Some c ommenters expressed concern that the rule implies that point source permittees would be required to implement NPS controls as a part of their permit conditions if the discharge is to a waterbod y that has an approved WQS variance. The final rule includes no implications regarding what sources will be required to implement BMPs for NP S controls. EPA expects that a state or authorized tribe will decide which entities with control over NPS may be asked to take actions and what those actions might be depending on the facts of the specific WQS waterbody variance

. Other c ommenters suggest ed that EPA revise the rule to replace the requirement regarding identification and documentation of BMPs with a requirement that states and authorized tr ibes identify an adaptive management framework that could be implemented to make progress towards attain ing the designated use and criterion and for renewal that the rule provide that the state submit documentation that reasonable progress is being made to address the pollutant(s) subject to the WQS variance during the WQS variance period. Adaptive management is an important feature of WQS variances. The time provided by WQS variances allows for adaptive management efforts to be implemented. That said, EPA did not agree with the commenters ’ suggestion to remove references in the rule to NPS BMPs and only incl ude a general reference to adaptive management. EPA concluded it was important to specifically focus on NPS in the context of WQS variances applicable to a water body or waterbody segment in order to ensure that states and authorized tribes will bring cons ideration of BMPs for NPS to the forefront of their decision

- making and development of any such WQS variance. This is the case in both the initial adoption of the WQS variance and any consideration on whether to adopt a subsequent the WQS variance. The req uirement will also ensure that the public is provided the opportunity to evaluate and comment on how a state or authorized tribe are taking such considerations into account.

Commenters also said: “ EPA cannot base variances for point source dischargers on c onditions concerning the implementation of nonpoint source controls. ” The final rule does not base WQS variances for point source dischargers on implementation of NPS controls. That said, the rule does include information regarding NPS and the implementation of controls for such sources as one piece of information that is relevant to evaluating the appropriateness of those WQS variances applicable to a water body or waterbody seg ment.Chapter 3 – Response Essays 8.g.v – Var Req – NPS BMP



### B. **“ No**  **C ontrol**  **” over N**  **onpoint Source C**  **ontrols**

Commenters expressed concern that states and authorized tribes would be required to list BMPs for

sources over which they have no regulatory authority

. Similarly s ome commenters said that because a

state or authorized tribe does not regulate NPS of pollution, identification and documentation of any cost- effective and reasonable BMPs for NPS controls cannot occur. EPA considered these comments carefully but concluded that , for WQS variances applicable to a water body or waterbody segment, it is a reasonable requirement that states and authorized tribes identify and document BMPs for NPS even if the state or tribe d oes not regulate those sources. The state and tribal water quality agencies are responsible for understanding and evaluating the waters within their jurisdictions. Under CWA section 303(d) states and authorize d tribes must assess and identify waters not meeting WQS and develop TMDLs for those waters even if the waters are impaired solely by NPS. EPA acknowledges that some states and authorized tribes may not regulate NPS of pollutants. However, the final rule does not compel states and authorized tribes to implement NPS controls or otherwise regulate NPS of pollutants.

Another c ommenter suggested rev isions to the regulatory text specifying that, for a waterbody variance, the state must identify and document any cost

- effective and reasonable BMP s for NPS controls under the control of the discharger that could be implemented to make progress towards attaining the designated use and criterion. One commenter expressed concerns that failure of a state agency to address the NPS requirements could penalize point sources by delaying issuance of variances. For the reasons discussed above, EPA concluded again st including language in the final rule limiting the scope of BMPs that state s and authorized tribes would need to identify and document. For WQS variances applicable to a water body or waterbody segment, often NPS will not be u nder the control of a discha rger subject to a National Pollutant Discharge Elimination System ( NPDES ) permit. For discharger specific variances, any consideration of BMPs would be expected to be those under the control of the discharger. Regarding the final comment raising concern in delay of issuance of a variance, while the requirement to identify and document BMPs will add some time, EPA believes it is warranted by the benefits of having and considering that important information in the development of the WQS variance.



### C. **Identific ation**  **and D**  **ocumentation of**  **N onpoint**  **S ource**  **B est**  **M anagement**  **P ractice**  **s S**  **hould B**  **e the**  **R esponsibility**  **of G**  **overnment E**  **ntities , N**  **ot P**  **ermittees**

A c ommenter (a municipal discharger) expressed support for the requirement to identify and document BMPs for NPS but also expressed concern the state may might require dischargers to develop (or pay to develop) the information. The commenter requested that the final rule specifically indicate it is the responsibility of the state governments to develop this information and not third parties that are not
NPS dischargers. EPA decided it was not necessary or appropriate to include such a restriction in the final rule. Th e state or authorized tribe is in the best position to decide how to develop the necessary information. This is no different from the discretion that is left to the states and authorized tribes in adopting other WQS

.



### D. **Commenter P**  **rovides I**  **nterpretation of**  **the P**  **roposed R**  **ule**

EPA thanks the commenters for describing their interpretation of the proposed rule. Public descriptions, interpretations, and perceptions of the proposed rule help EPA improve clarity and ensure the final rule accomplishes EPA ’ s goals and objectives.Chapter 3 – Response Essays 8.g.v – Var Req – NPS BMP



### E. **Strike o**  **ut R**  **egulatory T**  **ext**

A c ommenter suggest ed striking proposed section 131.14(b)(3) [the provision requiring identification and documentation of cost

- effective and reasonable BMPs for NPS]

. The commenter stated that the CWA does not include any provision “ to require or enforce best management practices for nonpoint source controls. ” The commenter further stated that “ EPA ’ s proposal could be misinterpreted to impose such a requirement. ”

EPA carefully considered this comment. EPA ’s prop osed (and final) rule neither require nor enforce BMPs for NPS controls. EPA ’ s final rule does require that in evaluating whether to adopt a WQS variance applicable to a water body or water body segment, the state or authorized tribe

, and the public

, consider pollutant contributions from NPS and to identify and document cost

- effective and reasonable BMPs that could be used to control those NPS. Those are relevant considerations in determining the highest attainable condition ( HAC ) and the appropriate term for any such WQS variance and ultimately whether to adopt such a WQS variance.

Other c ommenters suggest ed the following revisions to the proposed rule section on renewals to eliminate the requirement regarding BMPs for NPS : “ (d) WQS variance renewals: EPA may approve a WQS variance renewal if the State meets the requirements of this section and provides documentation of the actions taken to meet the requirements of the previous WQS variance. [begin strikeout] For a waterbody WQS variance renewal, the s tate must also provide documentation of whether and to what extent BMPs have been implemented to address the pollutant(s) subject to the WQS variance and the water quality progress achieved during the WQS variance period. [end strikeout] Renewal of a WQS

v ariance may be disapproved if the applicant did not comply with the conditions of the original WQS variance, or otherwise does not meet the requirements of this section. ”

EPA also rejected this proposed revision because, as discussed above, EPA concluded t hat it is important to consider the contributions from NPS and what cost

- effective and reasonable BMPs exist is deciding whether to adopt a WQS variance applicable to a water body or water body segment and what solutions to the water quality challenge have been tried (including those related to NPS BMPs) prior to adoption and approval of a subsequent WQS variance.

Comments further suggested that: “ EPA should remove any procedural or substantive requirements relating to nonpoint sources or state and tribal pu rview over those sources from the Proposed Rule, and clarify (as it has in the past) that intervening in state and tribal decisions regarding nonpoint sources would go beyond EPA ’ s authority under the CWA. ”

As discussed in other sections of this comment response essay, EPA is not acting beyond its authority under the CWA i n adopting the provisions in the final rule regarding identification and documentation of BMPs for NPS control.



### F. **Include a R**  **equirement T**  **hat S**  **tates E**  **valuate the**  **E ffectiveness**  **of B est**  **M anagement**  **P ractice**  **s I**  **mplemented**

Commenters said that EPA should “ include a requirement that states evaluate the effectiveness of any BMPs that were implemented during the previous variance period and make recommendations for improvements to the BMP program that are appropriate, if any. ” EPA disagrees with these commenters. Although EPA acknowledges that evaluating the effectiveness of BMPs and improving state or tribal NPS control programs is good practice, requiring such an evaluation is beyond the scope of this final rule.Chapter 3 – Response Essays 8.g.v – Var Req – NPS BMP



### G. **For V**  **ariance R**  **enewals , t**  **he L**  **evel of**  **P roof**  **R equired**  **to D**  **ocument W**  **hether and to**  **W hat**  **E xtent**  **B est**  **M anagement**  **P ractices**  **for N**  **onpoint S**  **ource C**  **ontrols W**  **ere I**  **mplemented I**  **s N**  **ot A**  **dequately D**  **efined or**  **E xplained** 

Commenters said: “ EPA should eliminate its proposed requirement that States must submit adequate proof regarding use of best management practices for nonpoint source controls to address pollutants subject to the variance, as well as the water quality progress achieved during the varia nce period

. The level of proof required is not adequately defined or explained and will likely be interpreted inconsistently among EPA ’ s regions. Moreover, such a burden will undoubtedly force States to dedicate significant resources to conduct engineering and scientific studies, as well as regulatory negotiation and even litigation, all to justify the continuance of a variance the State

- the entity Congress tabbed as the one with primary responsibility for establishing and implementing WQS

- deems necessary. ” Other commenters said: “ the provision again will invite wasteful and time consuming litigation in connection with any variance request or approval because what constitutes a “ reasonable ” method to address non

point sources is a highly subjective policy ma tter. ”

The final rule at section 131.14(b)(2)(iii)(B) specifies that a ny subsequent WQS variance applicable to a water body or waterbody segment must include documentation of whether and to what extent BMPs for NPS controls were implemented to address the pollutant(s) or water quality parameter(s) subject to the WQS variance and the water quality progress achieved

. EPA believes that such information is important for the states and authorized tribes as well as all the interested stakeholders to have in evalu ating whether it is appropriate to adopt a subsequent WQS variance and what the conditions of any such WQS variance should be. EPA determined that it was best to leave to the states, tribes and public in the first instance to determine how best to document this information. It will be a case

- by

- case determination. While there may be issues, and possibly even disputes, over what documentation will be provided and what decisions to make from that information that is not a justification for eliminating the

req uirement to develop and consider this important information in deciding whether to adopt a subsequent WQS variance applicable to a water body or waterbody segment

.



### H. **Add R**  **egulatory T**  **ext**

C ommenters said: “ The preamble makes clear that it is not necessary to implement these [BMP] measures, but merely to identify them and inform the public of them. See 78 Fed. Reg. at 54535

- 56. The AMA supports this limited use of any such information, but believes it should be stated more clearly in the rule text (e.g., by adding “ for information purposes only ” after “ identify and document ” in the first paragraph of proposed 40 C.F.R. § 131.14(b)(3)) .” EPA does not agree that such a revision to the rule is final necessary or should be made. EPA acknowledges that the CWA does not establish a regulatory program for NPS. And the final rule does not require states or autho rized tribes to regulate NPS. However, as discussed in the preamble section cited by the commenter, EPA emphas ized that it was

“ essential for states and authorized tribes to consider and provide information to the public regarding the impact that controlling other sources application of cost

- effective and reasonable BMPs could have on water quality before granting a waterbody variance ” ( 78 F R 54535 )

. EPA considers the words

“ identification and documentation ” to be clear and do not imply any requirement to regulate NPS. At the same time, the commenter ’ s suggested revision could add confusion by implying that there i s no expectation that actions will be taken based on the identification and documentation of BMPs for NPS control.Chapter 3 – Response Essays 8.g.v – Var Req – NPS BMP



### I. **Add an A**  **dditional P**  **ublic P**  **rocess**

Comm enters said: “ the proposal further requires that the state must provide public notice and comment for this documentation. Given that the variance itself is subject to public participation requirements (as specified in the first sentence of 40 C.F.R. § 131.14), and that the BMPs are being identified for information purposes only, it is not clear why a separate public process is required. The AMA questions the need for this additional process. ” EPA does not intend that that a separate public process must be provided for th e public to review of documentation on BMPs for NPS control. The intent of including the provision that “ A State must provide public notice and comment on any such documentation ” was to make clear that this documentation would be part of any record for a W QS variance applicable to a water body or water body segment made available to the public for review and

comment. The final rule does not require an additional public process from the process the state or authorized tribe uses to adopt the WQS variance

. Sta tes and authorized tribes can choose to satisfy the public process specified in (b)(2)(iii)(A) during the same public process that satisfies the public participation requirements at section 131.20(b)

.



### J. **What H**  **appens I**  **f B est**  **M anagement**  **P ractices**  **A re**  **N ot**  **I mplemented?** 

Commenters requested EPA explain what happens in the event that BMPs are not implemented. The purpose of any WQS variance is to make progress toward meeting the underlying WQS . It is EPA ’s current position that when deciding to adopt a WQS vari ance (including a subsequent WQS variance) applicable to a water body or waterbody segment, it is important for states and authorized tribes to consider all pollutant sources, and to ensure that the public fully understands the reasons why a WQS
variance i s necessary and for how long

. EPA expects that i n most cases, states and authorized tribes will adopt a WQS variance applicable to a water body or waterbody segment when pollutant sources originate from both point and NPS , and all stakeholders are working together reduce pollutant loa ds and restore the water body. The issue of what happens if BMPs are not implemented could arise in the context of a state or authorized tribe justifying the term of such WQS variance applicable to a water body or waterbody seg ment or during the re

- evaluation of the HAC for such a WQS variance with a duration greater than five years or when deciding whether to adopt a subsequent WQS variance

. The final rule ’ s requirement to identify and document BMPs for NPS and to document to what extent BMPs were implemented and the water quality progress achieved i s to ensure that this important information be a consideration in making the decision about the duration of the WQS variance , the HAC , and whether to adopt a subsequent WQS variance and the term and conditions for any such WQS variance. How that information will be considered will be a case

- by

- case decision. EPA concluded it was not necessary or appropriate to address that issue in the final rule ’ s regulatory text

.



### K. **The R**  **equirements for a**  **W aterbody**  **V ariance**  **A re**  **O verly**  **B urdensome and**  **P rovide**  **a D**  **isincentive to**  **I ts**  **U se** 

The commenter st ated they did not disagree that all sources of a pollutant should be evaluated to address relevant reductions, but thought the requirements in the rule related to BMPs for NPS control are overly burdensome and a disincentive to its use. The commenter said that the information required by the rule are better suited for the TMDL process.

EPA ’ s position is that the requirements in the final rule rel ated to WQS variances applicable to a water body or waterbody segment and BMPs for NPS control s carefully balance the flexibility states and authorized tribes need to effectively utilize these WQS variances, with the accountability andChapter 3 – Response Essays 8.g.v – Var Req – NPS BMP

transparency the pub lic needs to be assured that WQS variances are used appropriately

. EPA acknowledges that developing and implementing this type of WQS variance can involve considering information similar to that considered in developing a TMDL in some situations. Nevertheless, EPA has concluded that the information regarding the identification and documentation of BMPs for NPS controls is necessary and important to meaningfully consider whether a WQS variance applicable to a

water body or water body segment is appro priate and the term and conditions for such a variance. EPA is committed to working with states and authorized tribes to make this provision work efficiently and effectively. See EPA ’ s Economic Analysis for the final rule for more information on EPA ’ s burd en estimates.



### L. **The B est**  **M anagement**  **P ractice**  **s for N onpoint**  **S ource**  **C ontrols**  **P rovision**  **S hould**  **A pply**  **to A**  **ll V**  **ariances**

Commenters said: “ We support EPA ’ s proposed rule that would require states to identify and document any cost effective and reasonable best m anagement practices (BMP) for nonpoint sources related to the pollutant(s) and location(s) specified in a variance. It is unclear why EPA restricts this requirement to waterbody variances and we strongly urge that any such provisions apply to all variances . The same need as EPA establishes in the preamble for waterbody variances is needed for variances issued to individual dischargers in any situation where nonpoint sources are a primary or even major contributor to impairment. ”

EPA does not agree that the NPS related provision should apply to all WQS variances. I ndividual dischargers qualified to receive a WQS variance are usually addressing facility

- specific water quality challenges that prevent them from meeting the water quality

- based effluent limit ( WQBEL ) in their NPDES permit. EPA believes that requiring states and authorized tribes to identify and document cost

effective and reasonable BMP s for NPS controls for every discharger

- specific WQS variance would be a disincentive to utilizing WQS variances to make water quality progress

, and instead result in states and authorized tribes permanently removing designated uses. On the other hand, situations where a WQS variance applicable to a water body or waterbody segment is appropriate will likely involve multiple sources of pollutants. In such cases, understanding all the sources of pollutants (both point and

n onpoint) ensures the public understands the role NPS play in the water body or waterbody segment that will receive the WQS variance
, is a n importan t first step to determining the actions necessary to make progress toward attain ing the underlying WQS

.



### M. **The R**  **ule D**  **oes N**  **ot A**  **dequately R**  **equire C**  **ontrols for N**  **onpoint S**  **ources of**  **P ollutants** 

Commenters urged that the final rule require that BMPs for NPS controls be implemented. One
commenter said: “ EPA completely skirts the question of how this information it proposes be derived on BMPs will be used. Despite EPA ’ s repeated suggestions that variances will be used to move waters towards full attainment, EPA does not require that these identified BMPs be used as part of the variance nor that failure to use them over the course of the variance can and will be considered in whether the variance will be reissued. Instead, the proposed rule merely states that a s tate ‘ must also provide documentation of whether and to what extent BMPs have been implemented. ’ Proposed 40 C.F.R. § 131.14(d). This relegates the BMPs to a status of being interesting but unhelpful in improving water quality. ”Chapter 3 – Response Essays 8.g.v – Var Req – NPS BMP

A commenter also said: “ if EPA keeps the waterbody variances it must make implementation of nonpoint source controls mandatory. Otherwise, point sources will continue to demand and receive variances in large part because nonpoint sources are not doing their share of pollution controls, an endless cycle never to be broken. ”

Finally, a commenters suggested that proposed section 131.14(b)(3) be amended to read as follows:

“ [begin strikeout] For a waterbody variance,[end strikeout] The state must identify and document [begin strikeout] any [end strikeout] [begin new text] all [end new text] cost

- effective and reasonable best management practices for nonpoint source controls related to the pollutant(s) and location(s) specified in the WQS variance that could be implemented to make progress towards attaining the designated use and criterion. [begin strikeout] A State must provide public notice and comment for any such documentation. [end strikeout] [begin new text] The BMPs identified must be readily measurable. The state must provide a plan for achieving implementation of the identified BMPs including timeframes for their achievement, methods of assuring their implementation, and a monitoring plan to evaluate implementation. This plan will constitute conditions of the variance that apply to the state. [end new text] ”

EPA carefully considered all of these comments

, but concluded that the final rule should not require implementation of BMPs for NPS controls. EPA believes that the final rule strikes the right balance between ensuring the appro pr iate information and data on BMPs for NPS controls are considered while also recognizing that states and authorized tribes have discretion in deciding how best to work with stakeholders to address NPS pollution. EPA believes that identification and documentation of any cost

effective and reasonable BMP s for NPS controls will help ensure the public understands the role NPS play in the water body or water body segment that is being considered for such a WQS variance

. This is a critical first step toward addressing widespread water quality challenges. EPA intends for states and authorized tribes to utilize a WQS variance to a water body or waterbody segment in situations where both point sources and NPS work together toward the common goal of attaining the under lying WQS

, which may include implementation of NPS controls. In addition, the requirement to identify and document cost

- effective and reasonable BMPs for NPS controls increases public transparency by ensuring access to information about the potential need to control NPS of pollutants to attain the underlying WQS

. Because of the collaboration needed to for a WQS variance applicable to a water body or waterbody segment , it is likely that the information regarding BMPs for NPS will be used to help justify the need for the WQS variance, justify the term of the WQS variance, or prove to be useful in future reevaluations (required for WQS variances with durations greater than five years).

In addition, c ontrary to commenters assertion that states and authorized tribes only consider BMPs

“ that are already required by law ” the final rule specifies that states and authorized tribes consider any [emphasis added] cost

- effec tive and reasonable best management practice s for nonpoint source controls. In this context, the EPA intends for the word “ any ” to mean not just those BMPs that may already be required by state regulations. The EPA notes that its interpretation of “ any ” in the final rule is distinct from the interpretation provided in the EPA ’ s 1994 Tudor Davies memorandum ( “ Interpretation of Federal Antidegradation Regulatory Requirement ” ) related to the antidegradation requirements. Section 131.12(a)(2) states that in all owing degradation of high quality water, “ the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost

- effective and reasonable best management practices for nonpoint source control. ” The Tudor Davies memorandum clarifies that section 131.12(a)(2) does not require a state or authorized tribe to establish BMPs for NPS where such BMP requirements do not exist. Instead, the EPA interprets section 131.12 (a)(2) as requi ring states and authorized tribes to adopt an antidegradationChapter 3 – Response Essays 8.g.v – Var Req – NPS BMP

policy that includes a provision that will assure that all cost

- effective and reasonable BMPs established under state or tribal authority are implemented for NPS before that state or tribe autho rizes degradation of high qu ality waters by point sources. That is, if the state or authorized tribe does not require NPS controls, then EPA cannot require the state or authorized tribe to establish BMPs for the
NPS prior to allowing a lowering of high quality water. However, if the state or authorized tribe requires NPS controls, it needs to ensure those required controls are being implemented prior to allowing a lowering of water quality.

A commenter stated that : “ In addition, to the extent that EPA belie ves that the mere identification of BMPs will assist in their being implemented, a position that we support as a first but inadequate step, it does that goal a disservice by not specifying what EPA will accept as BMPs that are ‘ cost

- effective and reasonable. ’ EPA ’ s proposed rule language undermines this effort. In addition, EPA must ensure that the BMPs are clear, numeric, easy to determine if they are in effect or not, sufficient in number (i.e., more than one BMP may be required in tandem), and n ot, as footnote 29 mentions, just the BMPs that are already required by law. ” Commenters also said: “ There is every reason to expect states to simply refer to existing BMPs and perhaps not even explicitly but just by sister state agency. There is every rea son to expect states to point to NRCS Field Office Technical Guides ( “ FOTG ” ) as what is “ cost

- effective and reasonable ” even though the FOTGs are not clear and measurable and they were not developed to protect water quality. Also likely are references to v arious plans, none of which contain measurable BMPs. Without more detail in what EPA expects to see spelled out in the rule, EPA should expect the most vague, least protective, and least readily measured BMPs to be ‘ identified and documented ’ by the

states .”

EPA considered these comments and determined it was most appropriate to leave to the states and authorize tribes and their public processes how to define what BMPs will be considered cost

- effective and reasonable. Those decisions will best be made on a case

- by

- case basis.Chapter 3 – Response Essays 8.g.vi – Var Req – Other Sugg



## Essay **8.g.vi – Var**  **iances Submission Requirements**  **: Other Sugg**  **ested Submission Requirements** 

**A. Data**  **Sufficiency for Demonstration**  **of Unattainability** 

Commenters said: “ In regard to a Use Attainability Analysis (UAA), it is not clear what a “ structured scientific assessment ” requires, e.g., discharge monthly report (DMR) data or official scientific study by outside agencies. It is also not clear what objective quality evi dence (OQE) is required to claim that the

‘ designated use and criterion are unattainable. ’” and “ does the intermittent monthly DMR data that shows exceedances suffice as QOE? Or will an official study be required? ” and “ EPA should allow the use of NPDES Pe rmit DMR data as evidence to support a claim that a criterion is “ unattainable ” and thus request a WQS variance. ”

Commenters also said: “ With regard to the documentation required from states for a variance, the proposal is excessive and looks very close to what would otherwise be required for a use attainability analysis (UAA). As EPA itself notes throughout the proposal, a variance is time

- limited and “ lies on top of ” the otherwise applicable water quality standard for the water body in question. A varianc e is not a petition to change the designated use of a water body; therefore, the EPA should re

- examine the criteria for a state to grant a variance, and refine the scope of documentation needed to reflect a variance ’ s true
purpose. ”

Although there may be similarities between the analyses needed to justify removal of a designated use and the analyses needed to justify a water quality standards ( WQS ) variance, a WQS variance is likely to be significantly simpler and therefore less burde nsome because the analysis is over a limited time period . T he circumstances where a WQS variance may be justified are highly variable. The U.S. Environmental Protection Agency ’ s ( EPA ’s) position is that the final rule strikes the appropriate balance betwee n requiring adequate information in the state /tribal submission to allow meaningful public participation and EPA review and to meet the intended objectives of WQS variances with providing sufficient flexibility for states and authorized tribes in their dec ision making and development of supporting documentation. EPA believes that states and authorized tribes need the flexibility to justify a WQS variance on a case

- by

- case basis, and prescribing precise data and analytical requirements in a federal rule woul d impede the utilization of WQS variances to make water quality progress.

The commenter should refer to EPA guidance on use attainability analyses or contact their regional office for more information about how to evaluate attainability in their particular circumstances. EPA directs the commenter to EPA ’ s previous guidance in the “ Water Quality Standards Handbook ” ( http://water.epa.gov/scitech/swguidance/standards/handbook/index.cfm ) as well as UAA case studies on EPA website at http://water.epa.gov/scitech/swguidance/standards/uses/uaa/

. EPA notes that, as described by the commenter, National Pollutant Discharge Elimination System ( NPDES ) Permit DMR can be useful in informing a UAA; however, mere documentation of non

- compliance with a water quality

based effluent limit ( WQBEL ) from DMR alone will not be sufficient to support a demonstration based

on one of the six factors in section 131.10(g) or the new restoration factor in section 131.14.Chapter 3 – Response Essays 8.h – Var – Implementation



## Essay **8.h – Var**  **iances: Implementation** 

**A. Revise**  **Section 131.14(c) by A**  **dding the Wo**  **rd “E**  **ffluent ” b**  **efore L**  **imitations**

One c ommenter suggested that the sentence in section 131.14(c) be revised to add the word “ effluent ” as follows : “ Any effluent limitations required to implement the WQS variance shall be included in the NPDES permit for the permittee(s) subject to the WQS variance. ” The U.S. Environmental Protection Agency ( EPA ) does not agree with the commenter ’ s suggested revision. The National Pollutant Discharge Elimination System ( NPDES ) permitting regulations provide that, in addition to effluent limitations, NPDES permit s may contain special conditions to address uniqu e situations. These special conditions include, but are not limited to, special studies, preventative requirements, best management practices (BMPs) , treatment practices, monitoring, reporting, and compliance requirements, and compliance schedules (CS)

. Ci rcumstances where water quality standards ( WQS ) variances are utilized are by all intents and purposes unique situation s. Adding the word “ effluent ” could inappropriately restrict the permitting authority ’ s discretion to include special conditions in the N PDES permit. Furthermore, the fi nal rule provides an option to s pecify the highest attainable condition (HAC) as the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the State adopts the WQS variance and the adoption and implementation of a p ollutant m inimization p rogram (PMP). This option requires states and authorized tribes to adopt the PMP along wit h other elements that comprise the HAC . As part of the applicable WQS, the permitting authority would ne ed to use the PMP (along with the quantifiable expression of the “ greatest pollutant reduction achievable ” ) to derive N PDES permit limits and requirements. Requiring a PMP in circumstances where a discharger is already attaining the greatest pollutant reduction achievable helps ensure WQS variances are utilized to make progress toward the underlying designated use and not to simply maintain the status quo. EPA notes that so me commenters stated support for the proposed requirement at section 131.14(c) and effective implementation of all variances or reiterated the regulatory text to show that they did not suggest changes to 131.14(c). See the final rule text at section 131.14 (c) and subsection C of this essay for a discussion on how EPA revised section 131.14(c) based on comments.



### B. **Discussion of N ational**  **P ollutant**  **D ischarge**  **E limination**  **S ystem**  **P ermits**  **Leaves More Q uestions**  **t han**  **A nswers**  **, G uidance**  **W ould**  **Be H elpful** 

Commenters ex pressed confusion about how WQS variances relate to NPDES permitting. EPA revised the preamble to the final rule to better explain the relationship between WQS variances and NPDES permits. For a more detailed discussion, see response Essay 8.g.iii.

Comment ers said guidance on how to include WQS variance conditions in NPDES permits would be helpful. A variety of guidance documents for NPDES permitting are available on EPA ’ s website. EPA can also develop additional guidance as the need arises

.



### C. **Permit C onditions**  **M ust**  **B e**  **Enforceable**

A c ommenter said: “ The problem is that EPA has not established that variances must include any actions or conditions. Without a requirement for there to be conditions, yet other requirements that conditions be enforceable, and a requirement that conditions have been met in order to merit a renewal of a variance,
EPA ’ s assurances of water quality improvements ring hollow. ” Based on this and other comments, EPAChapter 3 – Response Essays 8.h – Var – Implementation

revised the section 131.14 regulations to ensure the final rule reinf orces the requirements at
section 122.44(d)(1)(vii)(A) by specifying that any limitations and requirements necessary to implement the WQS variance must be included as enforceable conditions of the implementing NPDES permit. Furthermore, the preamble of the final rule explains that states and authorized tribes must justify the term of any WQS variance on the basis of the information and factors evaluated to justify the need for the WQS variance. States and authorized tribes must also describe the pollutant control activities, including those identified through a PMP, that the state or authorized tribe anticipates implementing throughout the WQS variance term to achieve the HAC . During its review of the WQS variance, EPA will evaluate this description of activities which must reflect only the time needed to plan activities, implement activities, or evaluate the outcome of activities. Explicitly requiring the state or authorized tribe to document the relationship between the pollutant control activities and the WQS variance term ensures that the term is only as long as necessary to achieve the HAC and that water quality progress is achieved throughout the entire WQS variance term. The pollutant control activities specified in the supporting documentation serve as milestones for the WQS variance and inform the permitting authority when developing the enforceable terms and conditions of the NPDES permit necessary to implement the variance, as required at Title 40 of the Code of Federal Regulations ( CFR ) section 122. 44(d)(1).

EPA agrees with commenters who suggested strengthening the regulatory language that requires implementation of the WQS variance s in NPDES permits

. One commenter suggested that EPA add language to section 131.14(c) that would require: “ Any BMPs identified in paragraph (b)(3) of this section that are within the scope of the permittee ’ s authority shall be included as conditions of its NPDES permits. ” EPA carefully considered the suggested language and decided to address this suggestion by adding th e words “ and requirements ” after limitations in section 131.14(c) to ensure that the terms and conditions of a WQS variance (including any BMPs) are included in the implementing NPDES permit. See response Essay 8.g.v for a discussion of cost

- effective and reasonable BMPs related to nonpoint sources (NPS) and WQS variances.



### D. **Variances U nrelated to**  **P oint**  **Source Discharges**

A c ommenter said: “ it is not clear why variances would need to be included as part of an NPDES permit if the variance was solely related to non

- point source discharges or other reasons unrelated to point source discharges. These additional interim requirements should be removed and the NPDES permit requirements should just be required to be consistent with the variance while it is in place. ” EPA believes the commenter mistakenly interpret s a WQS variance to a water body or waterbody segment as applying only to NPS of pollutants. The main function of a WQS variance is to establish a time

- limited WQS reflecting the HAC

. EPA intends to provide states and authorized tribes the option of adopting a WQS variance for a water body or waterbody segment as an alternative to a designated use change in situations where the designated use and criterion currently in place for a specific pollutant is not a ttainable and there is uncertainty if and when the water body or waterbody segment will be able to attain the WQS. In such an instance, the variance applies to the water body itself, rather than to any specific source or sources. In the case of a WQS varia nce to a water body or waterbody segment, the time

- limited WQS applies to all dischargers on the water body or waterbody segment. Although NPS are not regulated by NPDES permits,
EPA considers a WQS variance to a water body or waterbody segment will provid e time for the state or authorized tribe to work with both point and NPS to determine and implement adaptive management approaches on a waterbody/watershed scale to achieve pollutant reductions and strive toward attaining the designated use and associated criteria. Although EPA recognizes that s ituations where a pollutant is exclusively from NPS are unlikely to benefit from a WQS variance ( because NPS are not regulated by NPDES permits), EPA sees no need to specifically preclude such a scenario in the final rule

.Chapter 3 – Response Essays 8.i – Var – Renewal



## Essay **8.i – Var**  **iances: Renewing Variances**

**A. Long**  **-T erm**  **C hallenges**  **W ill**  **N eed**  **L onger**  **than T**  **en Y**  **ears :**  **EPA S**  **hould C**  **larify T**  **hat V**  **ariances C**  **an B**  **e R**  **enewed**

Commenters said that given the maximum term of a water quality standards ( WQS ) variance is ten
years, the U.S. Environmental Protection Agency ( EPA ) should clarify that a WQS variance can be renewed because some water quality challenges will require longer than ten years to ad dress

. EPA acknowledges there may be some circumstances where a WQS variance longer than ten years may be needed to address certain long

- term water quality challenges. Although the EPA specifically provided for WQS variance renewals in the proposed rule at section 131.14(d), some commenters interpreted EPA ’s maximum WQS variance term of ten years to mean that a discharger may utilize a WQS variance for no more than a total of ten years.

As discussed in section II.E of the preamble to the final rule, t o addr ess these and other concerns, the final rule does not specif y a maximum WQS variance term. Instead, the final rule requires s tates and authorized tribes to specify the term of any WQS variance term and provide that it is adequately justified in the support ing documentation that must be submitted to EPA with the WQS variance for review and approval or disapproval

. Thus, where justified, a state or authorized tribe is not limited to ten years for any one WQS variance term, and can tailor the WQS variance term to the water quality challenge that is being addressed. Furthermore, the preamble of the final rule recognizes that states and authorized tribes may adopt a subsequent WQS variance(s) if, at the end of the WQS variance term , the underlying designated use remains unattainable. The regulatory text also specifies that a s tate or authorized tribe may adopt a subsequent WQS variance consistent section 131.14. See section 131.14(b)(1)(iv). EPA also removed from the final rule subsection (d) of the proposed rule addressing WQS variance “ renewals. ” EPA decided a separate subsection was not necessary. The reference to adopting a subsequent WQS variance was instead included in other subsections of the section 131.14. Finally, because the term “ renewal ” caused confusion, the final rule uses the words “ adopt a subsequent variance. ”

Commenters also suggested that EPA allow alternative ways to express the term of a WQS variance other than specific ex piration date. EPA agrees with these commenters. Consequently, in the final rule, the EPA is retaining the concept of requiring states and tribes to identify a definite term for the WQS variance, but no longer identifies it as the “ expiration date. ” States and authorized tribes may articulate the term of a WQS variance by either specifying an inter val of time with respect to EPA approval of the WQS variance, or a specific date that is as short as possible and is consistent with the demonstration provided in section 131.14(b)(2). See also response Essay 8.g.iii for more discussion on the expiration date topic.



### B. **A W ater**  **Q uality**  **S tandards**  **R enewal**  **S hould**  **N ot**  **B e**  **T reated**  **as a W ater**  **Q uality**  **S tandards**  **A ction** 

Commenters said: “ the renewal should not be treated as a standards action except to the extent the extension requires modification of an existing variance policy. ” Commenters also claim that approval of a WQS variance renewal “ removes the power and discretion currently held by states and tribes, and transfers i t to the EPA. ”Chapter 3 – Response Essays 8.i – Var – Renewal

EPA disagrees with these commenters. A WQS variance has always been and continues to remain a WQS subject to EPA action under Clean Water Act ( CWA ) section 303(c) (see response E ssay 8.f.i ). Thus states and authorized tribes must submit WQS variances to EPA for review and approval or disapproval. The final rule defines a WQS variance in section 131.3(o) as “ a time

- limited designated use and criterion for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable condition during the term of the WQS variance. ” To ensure the WQS variance is time limited, the final rule requires the WQS variance must have a defined term after which it is no longer the applicable WQS. States and authorized tribes may adopt a subseque nt WQS variance if the WQS varianc e is consistent with
section 131.14. However, the subsequent “ renewal ” WQS variance is a new WQS action under CWA section 303(c) and requires EPA review and approval or disapproval. EPA ’ s action in reviewing and approving a WQS variance is EPA carrying out its CWA oversight authority as it does with all new and revised WQS. It is not transferring any power to EPA that is currently held by the states. States have full discretion to decide whether to adopt a WQS variance. See also section II.E of the preamble to the final rule which discusses several ways that states and authorized tribes may be able to streamline the adoption of (including adoption of subsequent) WQS variances.



### C. **Suggested R**  **egulatory T**  **ext Revisions** 

Commen ters suggested deleting proposed section 131.14(d) and replacing it with only “ (d) WQS variance renewals: The State must document whether and to what extent BMPs have been implemented to address the pollutant(s) subject to the WQS variance and the water qu ality progress achieved during the WQS variance period. ” As discussed above, EPA decided not to include the proposed sub section (d) in the final rule. The final rule includes a provision that a state or authorized tribe may adopt a subsequent WQS variance at the end of the WQS variance term. Any subsequent WQS variance would need to comply with section 131.14. To the extent the comment er wanted there to be no requirements regarding adoption of a subsequent WQS variance, EPA disagrees. It is important that

a ny subsequent WQS variance meet the same requirements as for an initial WQS variance. The requirements in section 131.14 are designed to ensure that progress is made in improving water quality with the goal being to ultimat ely attain the underlying WQS. To remove any requirements related to adopting subsequent WQS variances would undermine that objective and goal. EPA did retain the language from subsection (d) of the proposed rule that the commenters suggested be retained. It appears in section 131.14(b)(2 )(iii)(B).

Commenters suggested revising the proposed rule at section 131.14(d) to: “ A variance may be renewed subject to the demonstration under (b)(2) above [demonstration that attaining WQS not feasible because of one of the § 131.10(g) factors in rule] .” For the reasons discussed above, EPA considers that all the requirements important to justifying an initial WQS variance remain equally important to justifying adoption of a subsequent WQS variance.

T he commenter s suggest a variety of revisions to secti on 131.14 s pecify ing that only WQS variance policies and procedure s , not individual WQS variances, are WQS subject to EPA review and approval or disapproval. Other suggested revisions provide full state discretion over all aspects of WQS variances ( e.g. , W QS term and determination of the highest attainable use [HAU] )

. For reasons discussed in the preamble and in other responses to comments (for example, see response Essay s 8.f.i and 8.g.iii )

, EPA has determined that it is necessary and appropriate to review each individual variance for its concordance with the provisions in the final rule to properly fulfill the oversight role provided in the
CWA

.Chapter 3 – Response Essays 8.i – Var – Renewal



### D. **Unless S**  **tates R**  **egulate N**  **onpoint S**  **ources , T**  **here I**  **s N**  **o W**  **ay to**  **I dentify**  **and D**  **ocument B**  **est M**  **anagement P**  **ractice s** 

See response E ssay 8.g.v for discussion about nonpoint sources (NPS) , including best management practices ( BMPs ) for NPS

.



### E. **When C**  **ould a**  **S ubsequent**  **W ater**  **Q uality**  **S tandards**  **V ariance**  **B e**  **D isapproved**  **?**

Commenters said: “ How would ‘ feasible progress ’ be defined, and would progress be determined by the states or EPA? Would ‘ feasible progress ’ have to include NPS controls, as implied in the rule? If progress was unable to be achieved due to conditions beyond the reasonable control of the permittee - suc h as technological, regulatory, or other limitations - would a discharger lose the variance? ”

Commenters are referring to the following statement in the preamble to the proposed rule discussing when a renewal of WQS variances might be appropriate: “ If a variance term will expire and the applicant complied with the conditions of the original variance (e.g., feasible progress has been made), but the designated use and criterion remain unattainable, then renewal of a variance may be an appropriate action for the state or tribe to consider. ” As discussed above, EPA is not promulgating subsection (d) in the final rule, which this statement was addressing. The final rule does include a provision recognizing that states and authorized tribes may adopt subsequent WQS variances if those variances satisfy the requirements of section 131.14. EPA believes that such an adoption process will bring forth the necessary information and considerations to inform whether a subsequent WQS variance has been justified. T he langua ge to which comment relates is not in the rule or preamble to the final rule. In addition, as discussed in section II.E of the preamble to the final rule, EPA has added several provisions to increase the accountability in the use of WQS variances in order to ensure that progress toward the underlying WQS is made during the term of the WQS variance. Commenters said in the context of renewing a WQS variance: “ EPA should clarify that any conditions in a WQS variance be limited to the alternative criteria a per mittee must meet. ” Commenters also want “ clarification, or examples, of when circumstances out of the permittee ’ s, state ’ s, or tribe ’ s control would lead to denial of a variance. ”

The final rule does not include any special conditions related to adoption o f a subsequent discharger

specific variance other than such variance must be consistent with section 131.14. Each WQS variance will need to be supported and reviewed on a case

- by

- case basis. In regards to a WQS variance applicable to a water body or waterb ody segment, the final rule includes a provision at section 131.14 (b)(2)(iii)(B) which states that “ Any subsequent WQS variance for a water body or waterbody segment must include documentation of whether and to what extent best management practices for non point source controls were implemented to address the pollutant(s) or water quality parameter(s) subject to the WQS variance and the water quality progress achieved. ” This is same as the proposed requirement for renewal of water body variances , with the exception that, as noted earlier in this essay, EPA moved away from the term “ renewal ” due to the confusion it created. EPA continues to consider this requirement reasonable and important for this particular class of WQS variances. This provision does not require implementation of BMPs for NPS . Instead it ensures that EPA and public have th e information about the consideration and implementation of BMPs for NPS needed to consider a subsequent WQS variance applicable to a water body or waterbody segment and ensure that the tool is used to make progress toward the underlying WQS and not retain the “ status quo. ” As a reminder, this type of WQS variance is only likely to be used where the state or authorized tribe has brought point and
NPS (and other stakeholders) to the table in a joint effort to move a difficult water quality challengeChapter 3 – Response Essays 8.i – Var – Renewal

forward and where much of that progress is dependent on mitigation of the NPS of the particular pollutant(s) that are the subject of the WQS variance.

When a WQS variance expires, the state or authorized tribe can determine the appropriate mechanism
to continue ma king progress toward the underlying designated use and criterion, which may include adoption of a subsequent WQS variance (which must also be consistent with section 131.14)

. Like the original WQS variance, a subsequent WQS variance is itself a WQS subject to EPA revie w and approval or disapproval. EPA acknowledges that a WQS variance can be potentially utilized in a wide variety of
circumstances. EPA believes i t would not be helpful nor appropriate to speculate on case

- specific hypothetical scenarios descr ibed by commenters in a national rule. EPA encourages states, authorized tribes, stakeholders, and the public to refer to EPA guidance, or contact their regional EPA offices for

case

- specific assistance

.



### F. **Relationship b**  **etween W**  **ater Q**  **uality S**  **tandards V**  **ari ance**  **and N ational**  **P ollutant**  **D ischarge**  **Elimination S ystem**  **P ermit**  **T erms** 
Commenters suggested: “ EPA [should] add an administrative continuance mechanism similar to the one for expiring, administratively continued NPDES permits under 40 CFR §122.6. As long as a renewal application is timely and complete, then the discharger should continue to enjoy the protections of the variance pending agency action on the renewal application. ”

EPA does not agree that a WQS variance should be administrativ ely extended based on the filing of a
time ly request for adoption of a subsequent WQS variance. Such a provision could defeat the purpose of having a term for each WQS variance. The mere filing of a request for adoption of a subsequent WQS variance should not automatically extend the original WQS variance pending a state decision whether to adopt a subsequent WQS variance and EPA ’ s approval. A WQS variance will expire at the end of its term. The state or authorized tribe may adopt a subsequent WQS variance but the original WQS variance does not remain in effect after its term ends. Importantly, because the end date of the original WQS variance will be clear (to meet the requirements of the final rule), and for longer

- term WQS variances there will have been t horough reevaluations at regular intervals, a state or authorized tribe can easily anticipate the need for a subsequent WQS variance with enough time to adopt and receive EPA action on the subsequent WQS variance before the original WQS variance comes to a n end.

That said, EPA agrees that if a discharger has a National Pollutant Discharge Elimination System ( NPDES ( permit that includes a water quality

- based effluent limit ( WQBEL ) based on a WQS variance whose term runs to the end of the permit term

, that th e WQBEL based on the WQS variance would be administratively continued if the permit is administratively continued. A specific provision in
section 131.14 is not necessary for an administratively extended NPDES permit to continue to provide the permittee wi th a shield until the permit is reissued. See response essay 8. f .ii for more information on the relationship between WQS variance and NPDES permit terms

.

Commenters said: “ It also would be appropriate for a variance, implemented through a permit, to have an end date coincident with the expiration of that permit rather than a specific variance term. ” EPA does not think it is necessary or appropriate to require WQS variance terms to have the same expiration date

as the relevant NPDES permits. EPA has explained its position regarding the terms for variances in response Essay 8.g.iii

. States and authorized tribes have the discretion to align as best they can the term of a WQS variance with the term of an NPDES permit. See EPA ’ s discussion in section II.E of the preamble to the final rule and response essay 8.g.iii for a discussion of reevaluation requirements

.Chapter 3 – Response Essays 8.i – Var – Renewal



### G. **Support**

EPA appreciates the time and effort to provide comments on the renewal provision.



### H. **Most W ater**  **Q uality**  **S tandards**  **V ariances**  **S hould**  **N ot**  **B e**  **R enew**  **ed , and**  **I f**  **so, R**  **arely and**  **w ith**  **S crutiny** 

Commenters said: “ there are very few legitimate circumstances under which a variance should be renewed. There are far too many examples whereby permitted facilities receive approvals for multiple variance renewals, spanning decades of noncompliance, essentially resulting in unpromulgated site

specific WQS that are not and never will be protective of water resources. ” C ommenters also said: “ The renewal process must explicitly include a requirement for a clear showing of need for the renewal and a public review proc ess “ and “ EPA provides that the variances can be renewed, largely indefinitely, even in the face of continued variance noncompliance. ”

EPA acknowledges commenter s’ concerns about ensuring WQS variances are utilized appropriately and that subsequent WQS variances are not issued unless justified

. The final rule includes detailed and protective submission and documentation requirements designed to avoid the concerns raised by the
commenters. Commenter s’ concerns would reflect the WQS variance process prior to EPA ’ s new rule. EPA is adopting its new rule in part to bring greater uniformity, accountability, transparency and scrutiny to the WQS variance process. See comment response essays 8.b, 8.d, and 8.f.i for discussion on provisions in the final rule to ensure transparency and accountability in the use of WQS variances.

Commenters said: “ a maximum single variance term of no more than 10 years, as proposed, should also be the only term. There should be no extensions. If a variance cannot be corrected to comply with water quality conditions within 10 years other options need to be sought. ”

EPA carefully considered the comments but for the reasons discussed elsewhere in the preamble and response to comments decided that there should not be a fixed maximum term in the regula tion. Those reasons also apply to why adoption of a subsequent WQS variance should not be prohibited

. Although EPA expect s most WQS variances to be relatively short, there are some circumstances that require long

term efforts, either in the term of the ori ginal WQS variance or as justification for adoption of a subsequent WQS variance

. For example, states and authorized tribes are beginning to develop and implement numeric criteria for nitrogen and/or phosphorus which are the cause of harmful algal blooms and other eutrophication

- related problems

. There are many common sources of nitrogen and phosphorus that have existed for many years, and restoration plans for some effected waters may require relatively long time horizons. EPA believes providing a WQS tool that allows states and authorized tribes in such circumstances to incrementally reduce nitrogen and/or phosphorus loads to the greatest extent possible is preferable to the state or authorized tribe permanently downgrading or removing the designated use

.
EPA acknowledges commenters concerns that long

- term WQS variances or adoption of subsequent WQS variances could be used inappropriately. To address these concerns, t he final rule specifies that the term of a WQS variance shall only be as long as necessar y to achieve the highest attainable condition (HAC)

. T o ensure EPA has sufficient information to determine whether the WQS variance is only as long as

necessary , states and authorized tribes must provide documentation to justify why the WQS variance is

nee d ed, the term for the WQS variance

, and the HAC . T o ensure that a WQS variance longer than five

years reflects the HAC throughout the WQS variance term, states and authorized tribes must reevaluateChapter 3 – Response Essays 8.i – Var – Renewal

the WQS variance at least every five years, and adopt a pr ovision specifying that the applicable interim WQS shall be either the HAC initially adopted, or a higher attainable condition later identified during any reevaluation. The final rule specifies that this provision must be self

- implementing so that if any

r eevaluation yields a more stringent attainable condition, that condition becomes the applicable interim WQS without additi onal action. These provisions in the final rule will ensure that long

- term WQS variances are used appropriately.



### I. **B est**  **M anagement**  **Pr actice**  **R equirements**  **A dd**  **C omplexity**  **, H ave**  **N o**  **P urpose**  **, and**  **A re**  **an U**  **nnecessary B**  **urden**

Commenters said the rule would “ significantly amend existing requirements in ways that go beyond existing law or understandings, with no apparent purpose other than to add complexity and burdens ” such as: “ Requiring that the state provide documentation as to the extent to which BMPs have been imposed on nonpoint sources in the area as a prerequisite to renewal of variances (131.14(d)). ”

EPA disagre es with these commenters re garding the purpose of these new requirements . A WQS variance applicable to a water body or waterbody segment provides the state or authorized tribe with an alternative to permanently downgrading or removing the designated use. Receiving waters with multip le sources of pollutants (both point and nonpoint) require a holistic approach to achieve the pollutant reductions needed to attain the designated use. A WQS variance applicable to a water body or waterbody segment provides time for state s and authorized t ribe s to work with both point and NPS to determine and implement adaptive management approaches on a waterbody/watershed scale

. The requirement that states and authorized tribes identify and document any cost

- effective and reasonable
BMPs for NPS controls ensures the public understands the role NPS play in the water body or wa terbody segment, and is an important first step for addressing complex water quality issues involving both point and NPS

.

Commenters said the rule : “ requires documentation for any sub s equent renewals that includes

‘ whether and to what extent BMPs have been implemented to address the pollutant(s) subject to the water quality standard (WQS) variance and the water quality progress achieved during the WQS variance period ’”

. Commenters asser t that t his will establish a significant burden on permittees to generate proof for a regulatory standard that is not adequately defined and likely to be interpreted inconsistently across EPA regions.

EPA disagrees with these commenters. The purpose of a W QS variance is to make progress toward the designated use with the ultimate goal of use attainment. EPA notes that the provision in question is only required for WQS variances applicable to a water body or waterbody segment and is not required for single o r multiple discharger WQS variances

. As described above, w hen adopting a WQS variance applicable to a water body or waterbody segment, it is important for states and authorized tribes to consider all pollutant sources that contribute to nonattainment.



### J. **G randfathering**  **Existing W ater**  **Q uality**  **S tandards**  **V ariances**  **and V**  **ariance P**  **ractices**

“ It is important for the rule also to explain how the new requirements would apply to renewals of variances that initially were issued prior to the effective date of the rules. In this regard, the rule clearly should state that such renewals similarly would not be subject to the new requirements. In light of how far down the road MassDEP, MWRA and EPA Region 1 are with the MWRA variance program, to changeChapter 3 – Response Essays 8.i – Var – Renewal

the applicable requirements now would be counterproductive at best. MassDEP, accordingly, at minimum urg es EPA to exempt such renewals from the new requirements. ”

S tates and authorized tribes must meet the requirements of this rule on the effective date of the rule. See sections I.E and II.E of the preamble to the final rule for more information on the effective date for the final rule. EPA has heard from states, tribes, and stakeholders that there is confusion, inconsistency, and mixed interpretations about how, when, and where variances may be used appropriately . This final rule is intended to provide speci ficity and national consistency in how states and authorized tribes utilize WQS variances.

It is important that going forward all WQS variances be adopted and reviewed under the same rules in order to provide the consistency and protectiveness intended by the new rule. EPA has decided that the new rule should also apply to adoption of a subsequent WQS variance when the original WQS variance was adopted prior to the final rule. Allowing adoption of subsequent WQS variances without applying the new rule could allow the indefinite continuation of the adoption of WQS variance s that do not meet the new protections merely because an original WQS variance was issued prior to the new rule. States and authorized tribes will have time to adapt and respond to the requirements of the new rule. EPA will also work closely with states, authorized tribes and the public with the transition to the new rule. EPA has included provisions to allow WQS variances that were adopted before the new rule to continue until their term exp ires. In regard to the specific situation highlighted by MassDEP, EPA notes that this is a state specific case and EPA will work directly with the state of Massachusetts to determine how the new requirements will affect subsequent WQS variances that are part of the MWRA variance program based on the framework that EPA initially approved.



### K. **Nonpoint S**  **ource B**  **est M**  **anagement P**  **ractices R**  **equirements T**  **oo W**  **eak**

A c ommenter suggested the following revision to proposed section 131.10(d) to include documentation whether identified BMPs were implemented as a basis for EPA approval of a variance renewal : “ (d) WQS variance renewals: EPA may approve a WQS variance renewal if the State meets the requirements of this section and provides documentat ion of the actions taken to meet the requirements of the previous WQS variance, [begin new text] including [ end new text] [begin strikeout] . For a waterbody WQS variance renewal, the state must also provide [end strikeout] documentation of whether and to w hat extent BMPs [begin new text] identified in paragraph (b)(3) [end new text] have been implemented to address the pollutant(s) subject to the WQS variance and the water quality progress achieved during the WQS variance period. Renewal of a WQS variance m ay be disapproved if the applicant [begin new text] or state [end new text] did not comply with the conditions of the original WQS variance, or otherwise does not meet the requirements of this section. ”

EPA agrees with the intent of one suggested revision and incorporated its intent into a reorganization of the rule text. The commenters suggested adding “ or state ” with the intention of ensuring accountability for any state or authorized tribal responsibilities that are part of a WQS variance. Section 131.14 (b)(2)(iii)(B) of t he final rule says: “ Any subsequent WQS variance for a water body or waterbody segment must include documentation of whether and to what extent best management practices for nonpoint source controls were implemented to address the pollut ant(s) or water quality parameter(s) subject to the WQS variance and the water quality progress achieved. ” This revised language does not limit responsibility to only the “ applicant. ”Chapter 3 – Response Essays 8.i – Var – Renewal

EPA disagrees with the intent of sever al of the suggested revisions. The suggested revision s add the documentation requirement for NPS controls to all WQS variances. See comment response essay 8.g.v for discussion of why the final rule does not require documentation of NPS controls for discharger

specific WQS variances.

Commen ters also suggested revisions to the rule text that specifies the NPS controls requiring documentation are those specified in the WQS variance. EPA disagrees with these commenters. In today ’ s final rule, the requirement to identify and document any cost

- ef fective and reasonable BMPs for
NPS controls is limited to WQS variances that apply to a wa ter body or waterbody segment. States and authorized tribes are not required to identify specific NPS in their WQS variance because the WQS variance is applicable to a specific water body and not a specific source. Therefore, it would not be consistent with the intent of the provision to limit the identification and documentation of NPS to those specified in the WQS variance as it could be a null set. As discussed in the preamble to the proposed rule, “ Because other sources of pollution (e.g., nonpoint sources ) can have a significant bearing on whether the designated use and associated criteria for the entire water body are attainable , i t is essential for states and tr ibes to consider and provide information to the public regarding the impact of controlling other sources through application of cost

- effective and reasonable BMP s could have on water quality before granting a waterbody variance. ” In regards to the final ru le requirement that states and authorized tribes must document whether and to what extent BMPs for NPS were implemented to address the pollutant(s)/parameters(s) subject to the WQS variance, it would be inappropriate and incomplete to limit such documentat ion to just those that were identified and documented when the WQS variance was initially adopted. EPA expects that over the course of a WQS variance, states and authorized tribes and their stakeholders may discover other effective BMP s to control NPS than were identified and documented at the onset and limiting would again be contrary to the intent of the provision. For example, where a WQS variance applicable to a water body or waterbody segment has a duration longer than five years, it is likely tha t the state or authorized tribe or the public may identify additional BMPs during the required reevaluations which would result in a “ higher ” attainable condition for the water body

.
Finally, c ommenters said t he rule should require NPS BMPs to the extent p ossible as a condition of a WQS variance renewal, and i f the rule does not require implementation of NPS BMPs as a condition of renewal, they will never happen. EPA believes that the requirements in the final rule strike the correct balance between bringin g information regarding BMPs for NPS controls into the process when considering whether to adopt a WQS variance and what conditions to include in the WQS variance. However, in the context of a WQS variance applicable to a water body or water body segment, decisions regarding NPS controls can present complex and complicated challenges involving many parties. EPA concluded it was most appropriate to include the requirement to identify and document BMPs for consideration during the WQS variance adoption proces s. But EPA concluded that requiring implementation of BMPs for NPSs as a condition of adopting a WQS variance could make states and authorized tribes reluctant to pursue a WQS variance applicable to a water body or water body segment. In addition, it might lead to states and authorized tribes selecting a very limited or restricted list of BMPs therefore missing the opportunity to look more broadly and engage a larger group of stakeholders. See also response essay 8.g.v. for additional discussion of BMPs for NPS.Chapter 3 – Response Essays 8.i.i – Var Renew – Water Body



## Essay **8. i.i**  **– Var**  **iances: NPS Requirements for Renewing Water Body**  **Variances**

No comments are assigned to this issue category, and thus no response is necessary.Chapter 3 – Response Essays 8.j – Var – EPA DUs



## Essay **8.j – Var**  **iances: EPA**  **Promulgated Designated Uses**

**A. General** 

The U.S. Environmental Protection Agency ( EPA ) acknowledges the commenters noting that the federal promulgations at sections 131.34 and 131.40 do not affect waters under their jurisdictions. EPA agrees that sections 131.34 and 131.40 only apply to waters in Kansas and Puerto Rico, and thus the final rule
revisions at section 131.34 (c) and section 131.40(c) do not apply to waters in Wisconsin or the Pueblo of Sandia.

With regard to the commenter requesting that EPA initiate a withdrawal of the federal promulgation for
Kansas at section 131.34 instead of finalizing th e revision to section 131.3 4(c) , EPA disagrees. Neither the proposed rule nor the final rule contemplated withdrawing the federal promulgation for Kansas at
section 131.34. In the future, EPA may evaluate whether the federal water quality standards ( WQS ) established at section 131.34 continue to be necessary to meet the requirements of the Act. If EPA determines that the federal WQS are no longer necessary and Kansas’ EPA

- approved WQS meet the requirements of the Act, EPA would initiate a rulemaking to wi thdraw the federally promulgated WQS

. Regardless of whether EPA withdraws the federal WQS at section 131.3 4, WQS variances for waters in Kansas will be governed by the final requirements at section 131.14. This is because the final rule deletes the previou s specific variance procedures from section 131.3 4(c) and instead requires WQS variances for waters covered by section 131.14 to be consistent with the final requirements at section
131.14 . Similarly, if EPA withdraws section 131.34, WQS variances must be consistent with the nationally applicable final requirements at section 131.14.Chapter 3 – Response Essays 8.k – Var – Linkages w/ GLI



## Essay **8.k – Var**  **iance: Linkages with Great Lakes Initiative** 

**A. General** 

C ommenter s request ed that the U.S. Environmental Protection Agency ( EPA ) change Title 40 of the Code of Federal Regulations ( CFR ) Part 132 in order to prevent creating overlapping water quality standards ( WQS ) variance requirements for states and tribes in the Great Lakes

. For waters in the Great Lakes basin, states and authorized tribes must meet the r equirements of both 40 CFR Part 131 (the WQS regulation) and 40 CFR Part 132 (the Great Lakes Initiative [GLI ] or Great Lakes Water Quality Guidance [GLWQG ]). See 40 CFR 131.5(a)(5).

EPA promulgated the Part 132 regulations pursuant to congressional directive in Clean Water Act ( CWA )
section 118. The Part 132 rule is a comprehensive rule that includes requirements addressing both adoption of WQS and issuance of National Pollutant Discharge Elimination System ( NPDES ) permits. It includes requirements unique to the Great Lakes basin waters reflecting the requirement in section 118 that the Great Lakes rule “ conform with the objectives and provisions of the Great Lakes Water Quality Agreement. ” Section 118(c) (2)(A). EPA ’ s current rulemaking was never intended to make any revisions to the Part 132 regulations. To the extent there are overlapping requiremen ts for variances under Parts
131 and 132, EPA also does not anticipate any undue compli cations. The commenter did not identify any specific issues of concern. W here regulations in 40 CFR Parts 131 and 132 overlap, the more stringent regulation applies. EPA understands that in some situations determining which provisions are “ more stringent ” may be complex. EPA will consider this topic as it develops future guidance.

In some cases, the flexibilities and requirements in the national rule will not be applicable to waters in the Great Lakes basin. For example, the GLWQG limits any WQS variance to a maximum term of five years (with the ability to obtain a subsequent WQS variance). Therefore, any WQS variance on waters that are subject to the GLWQG cannot exceed five years even though today ’ s final rule in 40 CFR Part 131 does not specify a maximum term. On the other hand, because GLWQG WQS variances cannot exceed five ye ars, the requirements in the final rule at section 131.14 that pertain to conducting reevaluations (for WQS variances greater than five years) are not applicable.

One commenter compa red several aspects of the WQS variance requirements at 40 CFR Part 132

, Appendix F, Procedure 2 with the requirements of EPA ’ s proposed rule and stated that EPA ’ s rule does

not contain a number of provisions that are in Part 132 that the commenter found t o provide important protections. One example cited by the commenter is the provision in Part 132 that variances may not exceed a term of five years. EPA acknowledges that the final rule does not include all of the provisions in the Part 132 variance rule. EPA did carefully consi der the Part 132 rule in developing the WQS variance requirements in section 131.14 and the final rule does reflect some of the provisions in the Part 132 variance rule. While section 131.14 does not include all of the provisions from the Part 132 variance rule, EPA believes the final rule provides a comprehensive and protective WQS variance program. See also response Essay 8.g.iii for a discussion of the duration of a WQS variance.

The commenter noted that the requirements in 40 CFR Part 132 explicitly require variances to be reviewed

tr iennially. EPA notes that the final rule makes clear that a WQS variance is a WQS subject to EPA ’ s review and approval or disapproval. EPA ’ s final rule also makes clear in section 131.20(a) that states and authorized tribes must review all “ applicable ” WQS adopted pursuant to sections 131.10

– 131.15 andChapter 3 – Response Essays 8.k – Var – Linkages w/ GLI

f ederally promulgated WQS, which includes WQS variances. The commenter also noted that 40 CFR Part 132 ensures that a renewal of a WQS variance is subjec t to the same findings and procedures as the original variance. EPA ’ s final rule contains a provision at section 131.4(b)(1)(iv) that allows states and authorized tribes to adopt subsequent WQS variances as long as they are consistent with the regulations

at section 131.14. Additionally, since EPA ’ s final rule no longer includes a maximum WQS variance dura tion of 10 years (when a state or authorized tribe can justify a longer term), there may potentially be less need for a state or authorized tribe to renew a WQS variance (or at least to renew a WQS variance as frequently)

. The comments note that the variance requirements at 40 CFR Part 132 require reasonable progress toward attaining WQS. EPA ’ s final rule at section 131.14 outlines a regulatory fra mework for states and authorized tribes to establish interim requirements that reflect the highest attainable condition (HAC) during the term of the WQS variance that apply for purposes of CWA section 402 permitting and in issuing certifications under CWA section 401 and provides states and authorized tribes with time to implement adaptive management approaches that drive progress towards meeting the designated use and criterion. The commenter no ted that the WQS variance at 40 CFR Part 132 includes a clear prohibition against the use of WQS variances for new or recommencing dischargers.
EPA ’ s final rule does not prohibit new or recommencing dischargers from utilizing a WQS variances, however, EPA ’ s final rule does not allow a WQS variance to lower currently attained ambient water quality, except in circumstances where a WQS variance will allow short

- term lowering necessary for restoration activities consistent with section 131.14(b)(2)(i)(A)( 2 ). See also response Essay 8.f .i for a discussion regarding new dis chargers.



### B. Other

With regard to the comments related to the maximum timeframe, see EPA ’ s response to code 8.g.iii.

With regard to the comments related to the use of waterbody variances, see EPA ’ s response to code 8.f.i.

With regard to the commenter notin g that 40 CFR Part 132 includes antidegradation requirements, see
EPA ’ s response to code 7.k.Chapter 3 – Response Essays 8.l – Var – Other General



## Essay **8.l – Var**  **iances: General**  **Comments**

**A. T he**  **R ule**  **S hould**  **E stablish**  **a “R ebuttable**  **P resumption**  **” to**  **O btain**  **a W ater**  **Q uality**  **S tandards**  **V ariance**  **R enewal** 

Commenters said: “ the EPA [should] establish a rebuttal presumption that a variance is no longer justified upon the expiration of the first period granting the variance, to ensure that during the time period reasonable (not feasible) progress is being made toward the designated use. The pre sumption can be rebutted to request an extension only if it satisfies all of the three steps above. Specifically, to rebut the presumption, it has to be established that conditions have not changed so that the designated use or criterion are now attainable (and not due to the fault of the party being granted the variance), no new or additional information is available to indicate that the designated use and criterion are not attainable in the future, and that reasonable progress is being made toward the des ignated use and criterion and that additional time is needed to make further reasonable progress. ”

Although the term “ rebuttable presumption ” is not explicitly used in the context of water quality standards ( WQS ) variance s , t he final rule accomplishes the same objective

. The final rule provides that a

s tate or authorized tribe may only adopt a WQS variance if it is consistent with section 131.14

. Section 131.14 specifies that the requirements that apply during the term of the WQS variance must be the highes t attainable c ondition (HAC) and it requires states and authorized tribes to submit documentation affirming such a determination

. If the HAC is not the underlying designated use, then by definition, the underlying designated use an d criterion is not attain able. Requiring t he state or authorized tribe to demonstrate that the underlying designated use is not attainable in order to obtain a WQS variance assumes the underlying designated use is attainable unless the state or authorized can demonstrate otherwise

.
The U.S. Environmental Protection Agency ( EPA ) disagrees with commenters that said the rule should specify that EPA will approve a subsequent WQS variance only if “ no new or additional information is available to indicate that the designated use and criterion are not attainable in the future .” One of the stated goals of section 131.14 is to explicitly authorize the use a WQS variance to make progress toward a designated use when the designated use is not attainable in the near

- term but may be attainab le in the future

.
EPA removed the regulatory language saying: “ Renewal of a WQS variance may be disapproved if the applicant did not comply with the conditions of the original WQS variance ” because EPA eliminated the proposed ten

- year maximum WQS variance term and instead requires reevaluations of WQS variances longer than five years no less frequently than every five years and allows for subsequent WQS variances if they are consistent with section 131.14. In the final rule, states and authorized tribes hav e the responsibility of specifying and justifying the term of the WQS variance and the responsibility to conduct ongoing scrutiny of the WQS variance through regular ly scheduled reevaluations. The final rule requires the term of any WQS variance to be no l onger than necessary to achieve the HAC

. T o ensure that a WQS variance reflects the HAC throughout the WQS variance term, states and authorized tribes must also adopt a provision specifying that the requirements that apply during the term of the WQS variance shall be either the HAC initially adopted, or a higher attainable condition later identified during any reevaluation

. This provision must be self

- implementing so that if any reevaluation yields a more stringent attainable condition, that condition becomes the applicable WQS (for the purposes ofChapter 3 – Response Essays 8.l – Var – Other General

developing National Pollutant Discharge Elimination System ( NPDES ) limitations and requirements or for issuing 401 certifications) without additi onal action. Where a “ higher ” attainable condition has been id entified during a reevaluation, the permitting authority , u pon permit reissuance
, will base the water quality

- based effluent limit ( WQBEL ) on th is more stringent applicable WQS consistent with the NPDES permit regulation at section 122.44(d)(vii)(A). The f inal rule also requires states and authorized tribes to obtain public input on the reevaluations and submit the results of the reevaluations to EPA. EPA concluded that the combination of provisions in the final rule provide a framework for WQS variances th at will allow states and authorized tribes to efficiently address long

- term water quality challenges while ensuring that states and authorized tribes remain accountable for utilizing WQS variances appropriately.



### B. **EPA S**  **hould P**  **rovide G**  **uidance on**  **H ow to**  **U tilize**  **W ater**  **Q uality**  **S tandards**  **V ariances** 

Commenters said EPA should : “ provide guidance on what types of requests would be granted, what information would be required, and if EPA were to offer some assurance that the process would be reviewed differently th an it has been in the past. ”

EPA is establishing section 131.14 in part to encourage states and authorized tribes to utilize WQS variances to make progress toward WQS that are not currently attainable but may be attainable in the future. To this end, EPA w ant s states and authorized tribes to succeed in utilizing WQS variance s effectively. EPA expects states and authorized tribes to utilize WQS variances in a wide variety of circumstances, and will update its guidance as the need arises.



### C. **Other**

Commenters said: “ We are concerned that the proposed regulations will discourage, not encourage variances, contrary to EPA ’ s stated goal. We recommend addressing variances with more flexibility than EPA has proposed, and doing so in guidance rather than by regulation , to ensure water quality standards implementation decisions are left with States. ” Other commenters said: “ EPA proposes to add a new section to the WQS Regulation to regulate State adoption of variances. As a threshold matter, variances should be addressed in guidance rather than regulation, to ensure WQS implementation decisions are left with States and Tribes. Guidance could encourage the issuance of variances in certain situations when requested by the permittee, and provide basic elements of how variances should be issued, without mandating specifics. States and Tribes should be allowed to dictate specifics for themselves. ” EPA determined it would be most effective in promoting the use of WQS variances and ensuring those WQS variances are protective to have consistent national regulations. EPA ’ s experience with the use of variances under the Great Lakes rule supports that position. See response essay 8.b and 8.f.i. See also response essay 8.m regarding the issue of state primacy in regards to WQS varianc es

.

Commenters said: “ The State of Colorado has been successfully implementing temporary modifications and ambient

- based criteria for many years. These are two alternatives to variances or permanent use downgra des that were recognized in EPA ’ s Advance Notice of Proposed Rulemaking, 63 F R 36742 (July 7, 1998). The Proposed Rule does not include clarifications regarding either temporary modifications or ambient

- based criteria. Pueblo supports EPA ’ s decision not to include temporary modifications or ambien t based criteria, since clarification of these regulatory options is not necessary to facilitate their continued use. ” To be approved as a Clean Water Act ( CWA ) WQS variance, the variance would need to be consistent with the requirements of the final rule at section 131.14. See response essay 8.a.Chapter 3 – Response Essays 8.l – Var – Other General

Commenters said: “ Clarify that conditional discharge prohibitions are not variances ” and a “ conditional discharge prohibition is a permitting tool that allows the state to specify the discharge conditions that wil l ensure an authorized discharge meets applicable WQS without the need for a variance to allow a limited

- term exceed a nce of such WQS. The preamble accompanying the final rule should clarify this point. ”

The NPDES permit regulation at section 122.44(d)(vii) (A) requires the permitting authority to develop WQBELs that derive from and comply with all applicable WQS

. The final rule establishes WQS variances as a regulatory mechanism that allows states and authorized tribes to develop NPDES permits that comply wi th section 122.44(d)(vii)(A) in certain situations where the permittee cannot meet the WQBEL for the underlying designated use. The CWA and NPDES regulations continue to govern issuance of
NPDE S permits. This final rule does not address discharge prohibiti ons See response essay s 8.a
, 8.b , and 8.f.i for further discussion of why a WQS variance is a WQS and ways to streamline the process of adopting WQS variances into state and authorized tribal WQS.

Commenters said EPA should consider providing guidance on the use of variances to preserve flexibility for states to address site

- specific issues instead of issuing a regulation. As mentioned above, EPA determined it would be most effective in promoting the use of WQS variances and ensuring those WQS
variances ar e protective to have consistent national regulations. EPA ’ s experience with the use of variances under the Great Lakes rule supports that position. See also response essay 8.b.

Commenters said: “ An option should be available for States to develop a varianc e rule and to adopt it into their State rule with EPA approval. If the variance rule has been approved by EPA, each specific variance should not then require EPA approval as long as the variance rule is followed. ” See response essay 8.b for a general discu ssion on this issue and for information on EPA ’ s longstanding practice for WQS variances. Also see response essay 8.f.i for a discussion on why WQS variances, themselves, are WQS needing review and approval by EPA

.

Commenters said: “ Thermal variances are u nique variances and should not be included with those that are subject to the proposed requirements. We request that language be added to both the preamble and the proposed regulations, clarifying that thermal variances issued in accordance with Section 31 6(a) of the CWA are not subject to the proposed rulemaking regarding variance procedures. ” The rule does not apply to section 316(a) variances. See response essay 8.c.

Commenters said EPA should not promulgate regulations for WQS variances because the previous 1983 rulemaking said they are not “ regulatory in nature. ” See response essay 8.b

Commenters request clarification of the review and approval process for WQS varian ces because the rule does not appear to establish clear responsibilities for individual permittees that may wish to obtain
a variance as the Part 132 regulations does. First, EPA notes that the Part 132 regulation is both a WQS and permitting regulation, and therefore, addresses individual permittees directly. The revisions to Part 131 to add specific requirements for WQS variances is only a WQS regulation. Under section 131.14, EPA defers to states and authorized tribes in their implementation of the regulation as long as it is consistent with the section 131.14

. See also response essay s 8.g.iv and 8.k

.

Commenters said: “ we strongly encourage EPA to include preamble language stating that currently approved state regulatory tools will continue to be valid on ce the proposed rule is finalized ” and suggest regulatory language to ensure current state WQS variance policies continue to be valid. See response essay 8.b for a discussion on why EPA disagrees with this position as it pertains to WQS variances orChapter 3 – Response Essays 8.l – Var – Other General

variance policies/procedures

. Where state s and authorized tribes have binding WQS variance policies and/or procedures inconsistent with today ’ s rule, those states and authorized tribes will need to revise such policies and/or procedures as necessary to be consistent with the federal regulations if the state or authorized tribe wants to continue to adopt WQS variances

. This should occur prior to, or simultaneously with, adopting the first WQS variance , consistent with the timeframe described in the effective date discussion in section I.E of the final preamble

.

Commenters said: “ EPA ’ s proposed changes will lead to permittees wanting to over

- utilize this approach. In these times of strained resources, it may be challenging for states to respond to the se increa sed requests. ” Commenters also questions “ whether the standards set out in proposed § 131.14 will increase the level of effort required to obtain a WQS variance and/or make variances much more difficult to obtain. ” Depending on the how a state or authorized tribe has been currently operating in regards to adopting WQS variances, EPA estimates some increased burden associated with the new provisions. For information on EPA ’s estimates of burden see EPA ’ s e conomic a nalysis (EA) for the final rule in the docket. EPA concluded, however, that this increase in burden is reasonably balanced with the additional accountability, flexibility, and transparency in the WQS variance framework for the final rule and will allow WQS variances to be an important tool for driving water quality progress. See also response essay 8.a and 8b regarding general concerns related to WQS variances and response essay 12.c for a discussion on EPA ’ s estimates of burden and costs of the final rule.

Commenters said: “ An option should be avail able for States to develop a variance rule and to adopt it into their State rule with EPA approval. If the variance rule has been approved by EPA, each specific variance should not then require EPA approval as long as the variance rule is followed. ” See re sponse essay 8.f.i

.

Commenters said they : “ recommend language ensuring that either the state or the discharger(s) concerned must properly fund and promptly undertake the necessary studies and complete them as quickly as possible. ” See response essay 8.e an d also response essay 8.g.v

.

Commenters said: “ nothing gives EPA new authority to mandate that an EPA

- approved standard, i.e., designated use and criteria that must apply to a water body or a portion of a water body - as specified in the regulatory definit ion of “ water quality standard ” – can be used for some purpose s of the Act, but not others. ” See response essay s 8.f.i and 8.f.i i.

Commenters said: “ EPA should require states to provide an opportunity for public review and demonstrate a clear showing of need prior to renewing a variance. ” See response essay 8.i.

Commenters said that EPA should ensure that states be allowed to utilize a streamlined vari ance procedure, as long as the process meets all the requirement s outlined in the regulations. See response
essays 8.a , 8.f.i and section II.E of the preamble to the final rule.

Commenters question if WQS variances are consistent with the CWA and how they c an help improve water quality. See response essay 8.b and also section II.E of the preamble to the final rule

.

Commenters said: “ ... federal regulations, if adopted, should allow States to continue rely on the demonstration under § 131.10(g) to justify a variance, without going through additional regulatory hoops. ” See s ection II.E of the preamble of the final rule and Response Essay 8.m for discussion of EPA ’s legal authority with regard to WQS variances. The discussion includes the rationale for why a WQ S variance is time

- limited and how the construct of the “ highest attainable condition ” enables waterChapter 3 – Response Essays 8.l – Var – Other General

bodies to serve the objective of the Act to restore and maintain the chemical, physical, and biological integrity of the Nation ’ s waters. See also the disc ussion in the preamble to the proposed rule (78 FR
54531 , September 4, 2013 ) that because the existing (1983 rule) lacked explicit provisions, stakeholders expressed confusion, inconsistency, and mixed interpretations about how, when, and where variances

m ay be appropriately used. When looking at where WQS variances have been most successful, EPA recognizes the need for more specific regulations that “ address questions such as when a variance can be granted, how a variance must be justified, what is required during the term of a variance, or for how long a variance can be granted. ” Therefore, EPA concluded that regulations that go beyond just requiring a demonstration under 131.10(g) was necessary. EPA also notes, that under the final rule, the regulation provides different factors for justifying a WQS variance for a 101(a)(2) use (or subcategory of such a use) than for a non

- 101(a)(2) use (see response essay 8.g.iv for more discussion on WQS
variances to non

- 101(a)(2) uses). In addition, for more detailed responses to this or similar comments, see response essay 8.c, 8.f.i, and 8.f.ii and other WQS variance response essays such as 8.a, 8.b, 8.d, 8.f, 8.g, 8.g.ii, 8.g.iii, 8.g.iv, 8.g.v, 8.g.vi, 8.h, and 8.i.

Commenters said: “ Variances should include some type of schedule for compliance including verifiable actions leading to water quality standards attainment and protection of uses. EPA should strengthen the requirements for maintaining a variance so that this tool is used as a method of achieving water qu ality standards through responsive and verifiable actions. ” See comment essay 8.b, 8.d, 8.e, 8.f.i, 8.f.ii, 8.g.iii, 8.g.iv, and 8.h.

Commenters said: “ Section F.2.a.i. states that “ A waterbody variance provides time for the state or tribe to work with bot h point and nonpoint sources to determine and implement adaptive management approaches on a waterbody/watershed scale to achieve pollutant reductions and strive toward attaining the water body ’ s designated use and associated criteria. This requires clarifi cation for Wisconsin, as we both encourage adaptive management plans for phosphorus, and allow facility

- specific variances for phosphorus. Does EPA intend to imply that all adaptive management plans for phosphorus in Wisconsin must be approved by EPA? How might adaptive management apply to standard (in WI) variance pollutants such as chloride, mercury, and copper? ” The final rule does not regulate state or tribal adaptive management plans. However, a WQS variance is a change to WQS and must be reviewed and approved or disapproved by EPA. To the extent that a state or authorized tribe includes an adaptive management plan in a WQS variance, EPA will review the adaptive management plan as part of the WQS variance submission and approve or disapprove the WQS var iance. EPA cannot speculate on the specific requirements a state or authorized tribe may need to include in a WQS variance in order to attain the
HAC without site

- specific information. EPA recommends the commenters refer to EPA guidance and/or consult with their regional EPA office.

Commenters said: “ Please clarify the use of the word remove in Section F.2.b.ii “ The EPA ’ s current position is that before removing a designated use states and tribes must first evaluate the impact that point and nonpoint source controls might have on water quality. ” Perhaps this should be amended to

say “ The EPA ’ s current position is that before removing or modifying a designated use or applying a
variance

- modified use... ” “ EPA agrees that the text as written was not clear. EPA ag rees that WQS variances do not “ remove ” the underlying designated use or associated criteria. See response essay 8.f.ii and section II.E of the preamble to the final rule for additional discussion on how the underlying WQS stays in place for many CWA purpo ses (e.g., total maximum daily loads [ TMDLs ] , CWA section 303(d)). EPA notes that, especially in the context of designated uses, the phrase “ remove a designated use ” does also in clude “ modifying ” or “ refining ” a designated use.Chapter 3 – Response Essays 8.l – Var – Other General

Commenters said: “ Inland supports the inclusion of more specific guidance and standards as to when variances are available to individual and multiple discharges and on a watershed basis. We urge the EPA to consider the variance rule in light of the policy direction of Region 10 on human water quality criteria. The rule should allow enough flexibility to address the long

- term needs for compliance tools with very stringent criteria. ” T he final rule is intended to allow states and authorized tribes to adopt WQS variances to address lo ng

- term water quality challenges. See response essay 8.b, 8.c, 8.d, 8.f.i, 8.f.ii, 8.g.ii, 8.g.iii, 8.g.iv, 8.g.v, 8.g.vi, 8.i.

Commenters said: “ EPA should clarify in the preamble the relationship of Endangered Species Act (ESA) requirements to its approv al of state adoption of state variance procedures and subsequent individual

state

- issued variances. ” EPA disagrees with these commenters. EPA believes that discussion of the relationship between the ESA and WQS variance s is more appropriately addressed in guidance rather than the final rule and would typically be based on case

- specific information (such as whether there are actually endangered or threatened species present in the water body or waterbody segment subject to the WQS variance )

. EPA will conside r whether this is an area where national guidance is needed. The

commen ter should contact their regional EPA office for assistance on any specific WQS variance.

Commenters said: “ EPA should clarify how “ adaptive management approaches ” are defined. ” See

res ponse essay 8.c.

Commenters said: “ At issue in Washington State is the prospective wide use of variances by individual and multiple dischargers as well as those that will apply statewide for so

- called problem chemicals like mercury and PCBs. Without strict guidelines on variances, including mandating development and implementation of pollution minimization plans, as well as highest achievable water quality limits, they are likely to serve solely as unfettered licenses to pollute. With the prospective near -t erm promulgation of new human health criteria in Washington State, compliance tools like variances are a key element the state is offering to give dischargers “ flexibility ” and “ certainty ” . Yet, little substance has been offered to provide clarity, effective implementation and assurances that such tools meet the requirements of the CWA and lead to improvements in water quality. ” See section II.E of the preamble to the final rule for a discussion on how the final rule increases accountability and transparency and will help to ensure effective implementation, including the provision at § 131.14(b)(2)(ii) that require s “ documentation demonstrating t hat the term of the WQS variance is only as long as necessary to achieve the highest attainable condition. Such documentation must justify the term of the WQS variance by describing the pollutant control activities to achieve the highest attainable conditi on , including those activities identified through a Pollutant Minimization Program, which serve as milestones for the WQS variance. ” And the provision at section 131.14(c) that requires: “ Any limitations and requirements necessary to implement the WQS vari ance shall be included as enforceable conditions of the NPDES permit for the permittee(s) subject to the WQS variance. ” See also response essay 8.b and other WQS variance response essays regarding the submission requirements such as 8.g.i. 8.g.ii, 8.g.iii, 8.g.iv, and 8.g.v

.

Commenters said: “ EPA ’ s reference to using “ adaptive management, ” id. at 54531, in the context of variances is really inappropriate. There is nothing in the proposed rule that suggests that EPA is correct about its idea that variances will lead to attainment and if adaptive management is a serious consideration in this context, it will have to be included in the rule. Saying the phrase “ adaptive management ” in the preamble does not ensure that sufficient monitoring and evaluation will ta ke place to even form the basis of next steps in an adaptive management scheme. And adaptive management requires triggers to make sure parties take those next steps. Without a reason, agencies do not engage in adaptive management. Without a clear process w ith information and deadlines they do notChapter 3 – Response Essays 8.l – Var – Other General

implement it. ” See response essay 8.c. as well as discussion above in this essay regarding the additional accountability and transparency in EPA ’ s final rule to help ensure effective implementation of WQS
variances

.

Commenters said: “ The issue of EPA ’ s broad assertions comes up again a few p aragraphs later, when EPA says ‘ when properly applied, a variance can lead to improved water quality over time, and in some cases full attainment [ .] ’” Id. What does EPA mean by “ when properly applied ” ? If EPA has some ideas of what constitutes proper application, it must include them in the rule but at a minimum it should not keep the states an d public guessing. What is the “ proper application ” EPA has in mind? All EPA hints at i s that there might be advances in treatment technologies, control practices, or changes in circumstances none of whi ch appear to be related to “ proper application. ” EPA disagrees with these commenters. The final rule at section 131.14(a) specifies where , w hen, and for how long a WQS variance can be applied. See discussions earlier in this essay as well as response essay 8.f.

, 8.h, and those response essays regarding the submission requirements such as 8.g.i. 8.g.ii, 8.g.iii, 8.g.iv, and 8.g.v.

Commenters sa id: “ How specifically will a variance take advantage of any advances in treatment technologies that occur? There is nothing in the rule that requires on

- going evaluation of what technologies might be developed over a 10

- year period. More likely a variance will lock in a lower level of treatment because it has changed the goal to accept more pollution. If EPA wants something better, it must build it in t o the definition of a variance. ” EPA disagrees with these commenters. The final rule requires the term of any WQS variance to be no longer than necessary to achieve the HAC

. The final rule further requires states and authorized tribes to reevaluate WQS variances with a term longer than five years no less frequently than every five years. T o ensure that a WQS v ariance reflects the HAC throughout the WQS variance term, states and authorized tribes must also adopt a provision specifying that the applicable requirements in the WQS variance shall be either the HAC initially adopted, or a higher attainable condition later identified during any reevaluation

. This provision must be self

implementing so that if any reevaluation yields a more stringent attainable condition, that condition becomes the applicable WQS without additi onal action. Where a “ higher ” attainable co ndition has been identified during a reevaluation, the permitting authority , u pon permit reissuance
, will base the WQBEL on th is more stringent applicable WQS consistent with the NPDES permit regulation at
section 122.44(d)(vii)(A). The final rule also requires states and authorized tribes to obtain public input on the reevaluations and submit the results of the reevaluations to EPA. These provision s in the final rule ensures that states and authorized tribes continually evaluate cond itions justifying a WQS variance and that the WQS variance represents the HAC throughout the WQS variance term. See also response comment 8.c, 8.d, 8.e, 8.f.i, 8.f.ii, 8.g.iii, and 8.i.

Commenters said: “

... the phrase “ control practices ” is exceedingly va gue. It ’ s unclear whether it pertains to point, nonpoint, or both types of sources. Control practices for nonpoint sources are not rocket science, waiting to be developed as can be the case with point source treatment technologies. More often than not, non point source control practices are known now but not yet required, practices that could be phased in or practices that being started at the outset could pay off over a 10

- year time frame (or less). ” EPA revised the preamble of the final rule to provide greater clarity when referring to pollutant controls. When describing “ pollutant controls ” in the definition of a pollutant minimization

program (PMP) (as defined in the final rule at 131.3(p)) the preamble to the final rules states: “ Pollutant control technologies represent a broad set of pollutant reduction options, such as process or raw materials changes and pollution prevention technologies

, practices that reduce pollutants prior to entering the wastewater treatment system, or best management practices fo r restoration andChapter 3 – Response Essays 8.l – Var – Other General

mitigation of the water body .” See also 8.g.v for a discussion of PMPs and nonpoint source (NPS) best management practices ( BMPs ).

Commenters said: “ Finally, what changes in circumstances is EPA discussing? In thinking about how a

“ circum stance ” can improve water quality one tends to think of significant restoration activities, significant nonpoint source controls, or the closure of a point source (presumably the variance protects the facility from having to add significant control technol ogies). These are interesting scenarios and EPA does not suggest what a state should be required to do if in the middle of a 10

- year variance there are such circumstances that would warrant the removal of the variance because, essentially, its assumptio ns were proven to be incorrect. ” EPA considers it unreasonable to expect EPA to describe the universe of potential circumstances that could change in situations where WQS variances are utilized. Based on these and other comments, EPA revised the regulation so that t he final rule extensively addresses the potential for changing circumstances during the term of a WQS variance (see discussion above regarding reevaluation requirements in the final rule).

Commenters said: “ Likewise, EPA does not discuss the best outcome of a variance which is that it is not renewed but instead point sources previously covered by a variance are able to switch to a compliance schedule to meet the underlying water quality standards. We understand that in Id aho this has or is about to occur for three municipalities that have been covered by a variance. This is the strongest indication that the objectives of the CWA will in fact be met rather than d odged for many years to

come. ” EPA agrees that attaining the underlying WQS (or commitment to attain the underlying WQS through use of a compliance schedule [CS] ) is a good outcome of a WQS variance. The preamble to the final rule extensively discusses the relationship between WQS variances and permit CS

. See also

re sponse essay 8.e.

Commenters said: “ EPA goes on in this theme at some length, invoking the goal that variances “ are intended to allow incremental environmental progress in achieving designated uses, ” “ variances will allow for environmental progress towards achieving the goals of the CWA, ” and “ [the proposed] revisions will also provide assurance that further feasible progress towards the designated use and criterion will be made during the variance period. ” Id. at 54532. Yet there is very little in the prop osed rules that would result in this outcome other than, perhaps, the proposed 40 C.F.R. § 131.14(d) regarding renewals of variances. This, of course, would only come after a 10

- year period, or some increment of 10 years. As between, for example, (1) a sta te ensuring that significant nonpoint source controls are implemented in the first 10 years of a variance and (2) an NPDES source betting it could count on EPA to approve a renewed variance in the absence of any nonpoint source controls instead of vetoing a permit and denying a variance renewal, thereby requiring expensive treatment technology, we would bet on the latter and win every time. That ’ s why the rules need to be very clear about the expectations and why it is not sufficient to simply repeat numero us times what the goal is, and what EPA hopes will happen. Very little that involves spending money to achieve pollution reductions ta ke s place on the basis of hope. ” EPA has developed a final rule that provides states and the Agency with appropriate requi rements to achieve the goals of WQS variances as articulated in the preamble

. See section II.E of the preamble to the final rule and response essay s 8.b and 8.g.v.

Commenters said: “ We also caution EPA against using the phrase “ legacy pollutants ” as it does in the discussion of when variances might be useful. Id. at 54532 ( “ challenges involving legacy pollutants ” ). While we agree that a variance is preferable to a permanent downgrade in designated uses where a state and the public do not know whet her a use can be attained, the word “ legacy ” is meaningless. It is often used to mean now

- banned toxic pollutants but in reality it can be extended to mean nearly anyChapter 3 – Response Essays 8.l – Var – Other General

impaired waterbody including those with impairments that have developed since 1975. It ’ s certainly true of the Oregon Department of Agriculture which considers nearly any riparian impairment to be

“ legacy. ” Even people who might disagree with that outlook might view widespread overgrazing that has removed riparian vegetation and affected the temperature regime of streams in the West as a “ legacy ” condition. Since it is ill

- defined and not susceptible to definition EPA should avoid usi ng it and use examples instead. ” EPA generally agrees with these commenters and avoids using the term “ legacy pollutants ” in the final rule.

Commenters said: “ Full transparency requires, at a minimum, that once approved by EPA a state provide the information on its website. We recommend that states be required to post with their water quality standards some method by which the public is alerted to the fact that variances exist and that they change over time. If variances are merely buried in standards, they will be a lot less obvious. Moreover, to ensure consistency with the findings and rationale EPA used to approve a variance, states should be required to post EPA ’ s decision document for the duration of the variance. As EPA likely knows, its regions handle standards issues inconsistently with regard to providing information to the public; some regions post standards information for long periods of time, some for short periods of time, and some do not even recognize that water quality standards have been issued and approved by EPA in their states. Posting the rationale will help members of the public comment on othe r regulatory documents that are linked in some fashion to the variance or its rationale including but not limited to NPDES permits, 401 certifications, TMDLs, 303(d) lists, and nonpoint source plans and practices. We urge EPA to include this requirement in rules because we have seen states repeatedly promise EPA to post information on their websites with no subsequent action from states. EPA must do more than invoke

“ transparency, ” it must ensure it. ” As EPA discussed in the preamble to the proposed rule, C W A section 101(e) provides that “ public participation in the development, revision, and enforcement of any regulations, standard, effluent limitation, plan, or program established [...] under this Act shall be provided for, encouraged, and assisted [...]. ” EPA maintains a WQS repository on its website where the public can obtain all approved WQS. In addition, EPA ’ s decision documents are public information and can be requested through the relevant EPA regional office

. EPA also encourages states and authorized

t ribes to make WQS publically available on the ir websites (e.g. , the preamble to the final rule recommends states and authorized tribes provide a list of the dischargers covered under a WQS variance on their websites or other publicly available sources of s tate or authorized tribal information, particularly when using multiple discharger WQS variances ).

Commenters said: “ As for public participation, we urge EPA to include in the preamble its view that states may not hide variance requests in NPDES permit com menting opportunities. In other words, states must specifically request public comment on variances just as they do for other water quality standards. While we think the rules are clear on this because they cite to 40 C.F.R. § 131.20(b), some states believ e they can merge the public process for a permit renewal with a variance. Members of the public who might not comment on a permit renewal might be interested in commenting on a 10

- year variance. This is not transparent. ” EPA disagrees that combining the public process required for a WQS variance and NPDES permit is “ not transparent. ” EPA believes that states and authorized tribes may leverage the public process that they currently use for NPDES permit issuance for obtaining public input on the WQS varianc e when that process is consistent with EPA ’ s regulations at section 131.20(b), including holding a public hearing. The public notice must make clear that the state or authorized tribe is also proposing to revise the WQS by adopting a WQS variance. Once the WQS variance is adopted, they can submit the WQS variance to EPA for approval or disapp roval under CWA section 303( c ). EPA notes that the final rule also requires public input on the reevaluation for any WQS variance with a duration greater than five year s.Chapter 3 – Response Essays 8.l – Var – Other General

Commenters suggested the following regulatory text: “ [begin new text] (4) A WQS variance shall not be granted if the designated use and criterion remove necessary protections from existing uses. [end new text]. [begin new text] (5) A WQS variance shall not be granted if the designated use and criterion addressed by the proposed WQS variance can be achieved through implementation of cost

- effective and reasonable best management practices for point or nonpoint source controls related to the pollutant(s)

an d location(s) in the variance and are within the authority of the permittee to control. [end new text]. ” See response essay s 8.f and 8.g.v

.

Commenters said: “ Added in redline edits above are: (1) protection of existing uses in the issuance of variances; (2 ) a requirement that the variance state both the effluent condition and the replacement criterion; (3) a five year limit on variances; (4) a plan for achieving implementation of BMPs including timeframes, methods of assuring implementation, and a monitorin g plan; (5) a requirement that the permittee implement any BMPs within its authority to do so; (6) a restriction on lowering water quality through changes in mixing zones; and (7) a requirement that the state implement the plan to ensure BMPs. Removed in r edline edits above are: (1) waterbody variances; (2) applicability of variances to 401 certifications except 401 certifications related to NPDES permits; (3) 10

- year variances; and (4) limitation on uses establis hed in CWA section 101(a)(2). ” See response essay 8.b, 8.c, 8.f, 8.f.i, 8.f.ii, 8.g.ii, 8.g.iii, 8.g.iv, and 8.g.v.

Commenters said: “ The Water Protection Groups strongly agree that variances can never be an option for new or expanding discharges as such a concept is completely contrary to the requi rements of the Clean Water Act and existing EPA regulation. EPA ’ s proposal that a state must demonstrate that attaining the designated use and criteria is not “ feasible ” during the term of the variance is confusing.

“ Feasible ” is a term that is often subje ct to much controversy and should be better defined. The Water Protection Groups submit that EPA should not allow “ feasible ” to be defined in strictly monetary terms, but should limit it to whether a technology or practice is actually available to address a water quality issue. If there is truly no available method, then perhaps attaining a water quality standard in three years is not “ feasible. ” (Although again, there is nothing in the Clean Water Act that allows for a variance in that instance

- it will sim ply take longer for a water body to come off the impaired waters list.). Finally, some of the same concerns with vague loopholes expressed above in the section regarding UAAs would apply here and the Water Protection Groups urge EPA t o tighten those requirements. ” EPA disagrees with these commenters. See response essay s 8.g.iv, 8.f.i, and 8.f.ii. Also, in regards to the term

“ feasible, ” EPA has used the term in its regulations at section 131.10 since 1983 and has not found the term to be confusing and is not strictly defined in monetary terms. There are five factors in section 131.10(g) that are not related to monetary terms. I n relation to a WQS variance to CWA 101(a)(2) uses and subcategories of such uses, the term “ feasible ” has the same meaning as in part section 131.10, however it is limited by time. Meaning the underlying designated use is not feasible to attain within the time identified as the term of the WQS variance.

Commenters said: “ public safety [should] be included in determining whether a water quality variance is appropriate for a water body as part of Section 131.14.b.3, particularly with respect to meeting water quality standards for chloride in relation to deicing material usage. MassDOT constantly strives to balance the public safety needs during winter storm conditions and minimizing the potential environmental impacts. Utilization of a water quality variance may likely be an appropriate regulatory mechanism to allow time to deploy additional technology and equipment that may be needed in pursuit of meeting aquatic life water quality standards for chloride in the smallest of streams with limited dilution. Reducing deicer material usage (if possible) requires time to achieve iterative steps and measured progress to allow operators and t he traveling public to adjust to incremental changes whileChapter 3 – Response Essays 8.l – Var – Other General

maintaining safe driving conditions. ” T he factors in the final rule that states and authorized tribes can use to justify a WQS variance a re adequate to address this scenario

. For a WQS variance to a 101(a)(2) use, the final rule requires states and authorized tribes to submit a demonstration that the use and criterion are not feasible to attain based on one of six factors in section 131.10(g) or a new factor related to lake, stream, or wetland resto ration. EPA cannot speculate on the outcome of a WQS variance submission to a hypothetical scenario without specific data and information on the particular
circumstances. See also response essay 8.g.iv.

Commenters said: “ recognizing that legitimate factors may prevent EPA or a state from acting on a renewal application before the expiration of the original variance term, we urge EPA to add an

“ administrative continuance ” mechanism similar to the one for expiring, administratively continued NPDES permits und er 40 CFR §122.6. As long as a renewal application is timely and complete, then the discharger should continue to enjoy the protections of the variance pending a state ’ s or EPA ’ s action on the application. ” See response essay s 8.g.iii.

Commenters said: “ EPA should consider allowing states the authority to issue variances programmatically. EPA could approve a state variance development and approval process described in state standards and allow the state, under clear conditions, to issue a variance through rulemaking, without discrete EPA approval. For example, if a state were to adopt procedures and requirements for
iss uing waterbody

- specific or multi

- discharger variances in their water quality standards and obtained EPA approval, then subsequent individual variances could be issued by the state under the framework of the approved water quality standards without having to obtain individual EPA approval. The state could use its NPDES delegated authority to issue and manage the individual variances, including the public processes that are built into that program. This would allow administrative efficiencies for both the state and EPA while at the same time providing a fully transparent public process through the NPDES

program. ” See response essay s 8.a
, 8.c. , a nd 8.f.i. See also section II.E of the preamble for a discussion on how to streamline the WQS variance process.

Commenters said: “ While U.S. EPA suggests that variances can create a framework to provide States and tribes with time to implement adaptive man agement approaches, the prescriptive requirements and oversight of the minutiae make this process unattractive. If a State is going to undertake the task of performing the assessment in section 131.10(g), it might as well remove the use instead of having t o deal with a short

- term variance process that may need to be repeated one or more times. EPA should make the variance process much more streamlined since it is only applicable for a relatively short duration. ” See response essa ys 8.a, 8.b, 8.c, 8.d, 8.f.i

, and 8.f.ii.



### D. **General S**  **upport**

EPA appreciates the time and effort to provide comments

.



### E. **Clarification a**  **bout N**  **eed for**  **S tate or**  **T ribal**  **V ariance**  **A uthorizing**  **P rovision** 

Commenters suggested that EPA include in the final rule: “ clarification regarding state authorization for variances. Specifically, will states need to add authorizing language for variances into their s tate water quality standards? ” As described in section II.E of the preamble to the final rule, because EPA must review and approve a WQS variance as consistent with the final rule at section 131.14
, “s tates and authorized tribes are not required to adopt specific authorizing provisions into state or authorized tribal law before using WQS variances consistent with the federal regulation. ” Howeve r, the regulation doesChapter 3 – Response Essays 8.l – Var – Other General

not prohibit states or authorized tribes from adopting authorizing provisions as long as they are consistent with the federal regulations.



### F. Specific **P rovisions**  **T hat**  **S hould**  **B e**  **I ncluded**  **in the F**  **inal R**  **ule**

Commenters said: “ If EPA proc eeds with formalizing a variance rule, it should amend the Proposed Rule to make it consistent with its long

- standing practice for issuing variances by including the following: • Each individual variance is included as part of the water quality standard; • The justification submitted by the State includes documentation that treatment more advanced than that required by sections 303(c)(2)(A) and (B) has been carefully considered, and that alternative effluent control strategies have been evaluated; • The mor e stringent State criterion is maintained and is binding upon all other dischargers on the stream or stream segment; • The discharger who is given a variance for one particular constituent is required to meet the applicable criteria for other constituents; • The discharger either must meet the standard upon the expiration of this time period or must make a new demonstration of “ unattainability ” ; • Reasonable progress is being made toward meeting the standards; and • The variance was subjected to public noti ce, opportunity for comment, and public hearing. (See section 303(c)(l) and 40 CFR 131.20.) The public notice should contain a clear description of the impact of the variance upon achieving water quality standards in the affected stream segment. ”

EPA agrees with the commenters that each individual variance must be a WQS . The final rule requires states and authorized tribes to adopt any WQS variance into state or tribal WQS and submit them to EPA for approval or disapproval. It has been EPA ’ s practice to hav e an analysis of alternative effluent control strategies as part of a variance demonstration, and EPA expects this will continue to be the practice to meet the requirements of the final rule as states and authorized tribes justify the need for the WQS vari ance, identify the HAC , and justify the duration of the WQS variance

. EPA agrees with the commenters that “ the more stringent State criterion is maintained and is binding upon all other dischargers on the stream or stream segment. ” The final rule specifies: “ A WQS variance may be adopted for a permittee(s) or water body/waterbody segment(s), but only applies to the permittee(s) or water body/waterbody segment(s) specified in the WQS variance. ” EPA agrees with the commenters that the “ discharger who is given a variance for one particular constituent is required to meet the applicable cri teria for other constituents. ” The final rule specifies: “A ll other applicable standards not specifically addressed by the WQS variance remain applicab le. ” EPA agrees with the commenters that the “ discharger either must meet the standard upon the expiration of this time period or must make a new demonstration of ‘ unattainability. ’” The final rule specifies that a subsequent WQS variance must be consisten t with section 131.14. EPA agrees with the commenters that an approval or disapproval decision for a subsequent WQS variance should consider the progress made toward the underlying designated use. EPA believes the requirement to represent the HAC , together with five

- year re

evaluations, effectively pursue “ reasonable progress ” in a more structured manner. EPA agrees with the commenters that all WQS variances must be subjected to public notice and comment. The final rule requires all WQS variance s to be subj ect to public participation requirements at section 131.20(b)

.

Commenters said: “ If EPA insists on including variances in its proposed revisions, it should modify the language in accordance with the following suggestions: 1. Only allow variances on waters where a TMDL has been approved and identifies interim actions with enforceable milestones as part of the variance. EPA disagrees with these commenters. While WQS variances affect the development of WQBELs for the discharger(s) specified in the variance and are intended to support restoration, they do not affect the underlying designated use and criterion that apply to the rest of the water body. That is, variances do not change the long term goals for the waterbody. TMDLs, on the other hand, are developed t o achieveChapter 3 – Response Essays 8.l – Var – Other General

the long term goals of the waterbody and are thus based on the underlying designated use. Because the purposes of these two tools are different, milestones for progress in a variance are not a replacement for establishing a TMDL for impaired waters. However, where variances are approved for multiple dischargers on the same impaired water (or there is an approved waterbody variance) and development of a TMDL is projected, the state/tribe has some flexibility to consider the relative priority of tha t particular TMDL while incremental progress is made through the variance(s). ” See also response essay 8.f.ii.

Commenters also said: “ 2. Do not allow variances to delay implementation of all known and achievable methods of toxic pollution elimination from point source discharges. ” Although the intended meaning of

“ achievable ” and “ delay ,” is not clear, i f “ achievable ” means “ attainable ” , and “ delay ” does not include a schedule of compliance (where authorized), then the final rule does not delay implementation of achievable methods of toxic pollution elimination from point source discharges . T he final rule requires states and authorized tribes to submit documentation demonstrating that the underlying designated use is not attainable, to specify the requirements of the WQS variance as the HAC , and to specify a WQS variance term that is only as long as necessary to achieve the HAC

.

Commenters said : “ 3. Do not allow variances to cause delays in establishment of final water quality

based effluent limits ( “ WQBELs ” ) in NPDES permits for protection of all beneficial uses. ” T he commenter does not fully explain what is meant by: “ cause delays in establishment of final water quality

- based effluent limits ( “ WQBELs ” ) in NPDES permits for the protection of all beneficial uses ”. If the beneficial use is not attainable, then establishing an associated WQBEL will not by itself protect the beneficial use. If the c ommenter means that a state or authorized tribe should not be able to use a WQS variance to delay making progress that is attainable, the final rule requires the term of a WQS variance to be only as long as necessary to achieve the HAC

.

Commenters said: “ 4. Expressly state that dischargers will be required to implement pollutant control strategies and end

- of

- pipe treatment well beyond “ technology

- based ” considerations including, but not limited to, raw

- product replacement, source reduction through protecti ve municipal pretreatment programs, specific storm water toxics reduction strategy, and complete elimination of the toxic discharge using zero

- discharge technologies (i.e., flow reduction and water reclamation). ” EPA agrees with the general intent of these comments
, but disa grees with the suggested text. T he final rule requires WQS variance s to express the HAC . For example

, for discharger

- specific WQS variances the HAC must be expressed as a quantifiable expression of: the highest at tainable interim criterion, an interim effluent condition that reflects the greates t pollutant reduction achievable , or i f no additional feasible pollutant control technology can be identified, the interim criterion or interim effluent condition that reflects the greatest polluta nt reduction achievable with the pollutant control technologies installed at the time the State adopts the WQS variance

, and the adoption and implementation of a PMP

. As discussed previously in this essay, “p ollutant control technologies (within the defini tion of PMP) represent a broad set of pollutant reduction options, such as process or raw materials changes and pollution prevention technologies

, practices that reduce pollutants prior to entering the wastewater treatment system , or best management practi ces for restoration and mitigation of the water body .” See also 8.g.v for a discussion of PMPs and NPS BMPs. The final rule further specifies that the WQS variance serves as the applicable WQS for implementing NPDES permitting requirements pursuant to section 122.44(d) , and that any limitations and requirements (emphasis added) necessary to implement the WQS variance shall be included as enforceable conditions of the NPDES permit.Chapter 3 – Response Essays 8.l – Var – Other General

Commenters said: “ Approval of a variance should also not preclude states from subsequently initiating (and completing) procedures to remove or modify the affected use(s) with supporting UAA, if such an action is deemed to be appropriate at some point in the future. The variance process considers uncertainties such as developmen t of future treatment technology required to attain the full designated use the variance applies to. After further evaluation, it may become apparent that full use attainment is infeasible at which point the receiving water may need to be reclassified on a more permanent basis. ” EPA agrees with these commenters. The final rule does not preclude states from subsequently initiating (and completing) procedures to remove or modify the affected use(s) with supporting use attainability analyses ( UAA ) , if such an action is deemed to be appropriate at some point in the future.

Commenters said: “ We recommend that EPA modify 131.14(b)(2) as follows to ensure that any variance will ultimately lead to attainment of designated uses: First, the State/Tribe should analyze how the

“ highest attainable condition ” during the term of a variance (131.14(b)(1)(ii)(B)) would relate to actual attainment of the designated use. Since the purpose of a WQS variance is “ incremental environmental

progress ” towards such ultimate attainment (see proposed rule, p. 58), this analysis would help the State/Tribe and EPA to determine what additional progress would be necessary to achieve attainment once the variance expires. Second, the State/Tribe should include alternatives in its analysis, in order to demonstrate that the proposed WQS variance requires the most expeditious feasible progress towards
attainment. ”

EPA partially agrees with these commenters. EPA agrees that it is important to be able to track progress toward the underlying designated use when utilizing a WQS variance, especially when the term of the WQS variance is long. However, EPA disagrees with the commenters that the regulation should req uire states and authorized tribes to analy ze how the HAC relates to actual attainment of the designated use for all WQS variances. T he final rule requires states and authorized tribes to submit to EPA documentation demonstrating the need for the WQS variance . EPA expects such documentation to include the analyses that were used to determine that the underlying designate use is not attainable, the analyses that were used to determine the highest attainable use (HAU) and to justify the duration of the W QS variance

. As stated in section II. E of the preamble to the final rule and in previous subsections of this essay, f or WQS variances longer than five years, the final rule requires states and authorized tribes to reevaluate WQS variances at least every f ive years and includes a set of additional related provisions to ensure the reevaluations occur on the set schedule, include public input, and that the results can be used by permitting authorities for reissuance of permits without additional EPA approval of any higher attainable condition found during a reevaluation

. EPA believes that establishing these reevaluation requirements for WQS variances longer than five years is the best way to achieve EPA ’s policy objective of active
, thorough , and transparent r eevaluat ion by states and authorized tribes while minimizing rulemaking burden. The reevaluation requirements in the final rule eliminate the need to specify a maximum WQS variance term because they ensure the HAC is always the applicable WQS throughout th e WQS variance term , thus driving incremental improvements toward the underlying WQS . EPA chose five years as the maximum interval between reevaluations because five years is the length of a single NPDES permit cycle

, allowing the reevaluation to inform th e permit reissuance
process.

As discussed in the preamble to the final rule, WQS variances remain subject to the triennial review and public participation requirements specified in section 131.20. This requirement ensure s that the public has the opportunity to work with states and authorized tribes in a predictable and timely manner to search for new or updated data and information specific to the WQS variance that could indicate a more stringent HAC exists than the state or aut horized tribe originally adopted. “ New or updated data andChapter 3 – Response Essays 8.l – Var – Other General

information ” includes, but is not limited to, new information on pollutant control technologies, changes in pollutant sources, flow or water levels, economic conditions, and BMPs that impact the HA C . Where there is an EPA

- approved WQS variance, the permitting authority must refer to the reevaluation results when reissuing NPDES permits to ensure the permit implements any more stringent applicable WQS that the re evaluation provides.

EPA generally agr ees that the states and authorized tribes “ should include alternatives in its analysis, in order to demonstrate that the proposed WQS variance requires the most expeditious feasible progress towards attainment. ” However, EPA disagrees that it is necessary to include such an explicit requirement in the final rule as an analysis of alternatives is inherent in the analyses needed to de monstrate the need for a WQS variance , including the analyses that were used to determine that the underlying designated use is not attainable, and the analyses that were used to determine the HAU , and the justification of the duration of the WQS. The documentation the state or authorized tribe submits with the WQS variance for review and approval or disapproval will inform EPA ’s review and evaluation of whether the state ’ s or authorized tribe ’ s submission sufficiently justifies the need and the term of WQS variances.

Commenters said: “ Additionally, variances are required to be set at the highest attainable condition as opposed to the highest attainable use - a term of art previously defined in the proposed regulations. We commend EPA for encouraging temporary standards that are as protective as possible, but fear that that

“ highest attainable condition ” currently lacks clarity, bec ause it introduces a new undefined term and raises questions how this should be defined vis -à- vis the newly proposed definition of highest attainable use. Moreover, what is “ attainable ” is highly subjective, and authorizes applicants to determine the fate of WQS and ultimately the level of resource protection. Given that a variance effectively re

- writes a state WQS for a specific place or permit, EPA needs to clarify how those standards will be developed, and how they will protect uses and meet the goals of the Act. At a minimum, in order to provide clear direction to states, variance justifications, should have to follow same process as UAA, and scientific and economic analy sis must be equally rigorous. ” See response essay s 8.c and 8.g.ii

. See also section II.E of the preamble to the final rule for a discussion comparing the “ rigor ” for a WQS variance and a use change.

Commenters said: “ Another significant problem with the proposed language is the lack of provisions which will provide assurances that variances or compliance schedules will result in eventual attainment of WQS. For example, proposed rules for variances require that reasonable BMPS that “ could be implemented, ” get documented. This provision merely requires the documentation of a scant possibilit y, and requires no reasonable assurances that implementation will occur. Moreover, EPA provides that the variances can be renewed, largely indefinitely, even in the face of continued variance noncompliance. These provisions fail to provide the necessary as surances of CWA compliance and the protection of treaty reserved resources. ” See response essay s 8.d, 8.e, 8.i, and 8.g.v

.

Commenters said: “ EPA should explicate how these processes, if used at all, will provide clear

- cut assurances that WQS can be attained in a timely manner. This should include clear direction that nonpoint source controls are not only identified, but are in fact are clearly prescribed to be consistent with achieving WQS, and implemented in a timely manner to ensure that standards are attained as fast as possible. It should also prevent lengthy excursions from state standards when non

- compliance remains the modus operandi. Absent such assurances, variances and compliance schedules will be nothing more than exemptions from the CWA. ” See res ponse essay 8.g.v.Chapter 3 – Response Essays 8.l – Var – Other General



### G. **Effective D**  **ate of the**  **F inal**  **R ule** 

Commenters said that EPA ’ s proposed requirement that variances issued by states comply with the federal rule immediately following the final rule adoption date is unreasonable, and that EPA should incl ude either a delayed effective date or “ a future date for state rules to comply. ” EPA took the commenters concerns into account and revised the effective date section of the preamble. The preamble of the rule explains that although s tates and authorized tr ibes are subject to the requirements of the final rule on the effective date of the rule

, EPA ’ s expectation is that, where a new or revised requirement necessitates a change to state or authorized tribal WQS, such revisions will occur within the

next triennial review that the state or authorized tribe initiates after publication of the rule. In addition, the section explains how EPA intends to review WQS that are in the adoption process when the rule becomes effective

. With these changes, EPA believes it has addressed the concerns of the commenters in a manner that is consistent with the effective dates for new rules. The commenters should refer to:

“ I. E. When Does this Action Take Effect ” in the preamble to the final rule for more information and
secti on II.E for a discussion that is specific to previously approved WQS variances and variance procedures or policies

.Chapter 3 – Response Essays 8.m – Var – Legal



## Essay **8.m – Var**  **iances: EPA ’**  **s L**  **egal Authority** 

**A. General** 

A number of commenters expressed concerns that section 131.14 would i nterfere with the states ’ role in adopting and implementing water quality standards ( WQS ). For instance, one commenter stated that

t he U.S. Environmental Protection Agency ( EPA ) failed to “ identify any justification for interfering with the states ’ authority to make assessm ents based on local conditions in the manner proposed. ” In a similar vein, another comment expressed the position that “ variance adoption and implementation should be left to the states since they are in a better position to address specific concerns and n eeds. ” Another commenter asserted that the requirements of section 131.14 “ improperly extend EPA ’s approval authority over matters in which states should continue to be afforded great er deference and flexibility. ” The commenter acknowledged that section 131.14 “ would achieve national uniformity for WQS variance implementation ” but believed that EPA ’ s approval authority should be limited to state variance policies and not individual WQS variances.

EPA recognizes that states and authorized tribes and their public are in the better position to evaluate local concerns and needs. The final rule does not interfere with that relationship or the authority of

states or authorized tribes to make these assessments. Rather

, the final rule specifies baseline requiremen ts that any WQS variance would n eed to be consistent with if a state or authorized tribe decide s to adopt a WQS variance. The requirements will ensure the consistent application of WQS
variances for the states and authorized tribes. As discussed elsewhere, the states issuing the greatest number of variances are states subject to the variance regulation applicable to the Great Lakes. ( Title 40 of the Code of Federal Regulations ( CFR ) Part 132, Appx F, Proc.2). Those detailed regulations have fostered, not in terfered with, th ose states ’ adoption of variances. Those are v ariances that comply with consistent baseline requirements and allow temporary modifications to WQS allowing p rogress to be made toward attainment of WQS rather than permanent ly downgrading of WQS. See also EPA ’ s response essay 3.a concerning state primacy in the WQS program.

As discussed in the preamble to the proposal (78 Fed. Reg. 54531

- 532), the final rule is consistent with and authorized by the Clean Water Act ( CWA ). In regard to treating all WQS variances as WQS subject to review and approval, t he requirements in the final rule also are consistent with EPA ’ s guidance and implementation of WQS variances since the 1970 ’s. Because individual WQS variances have always been considered to be mo dificati ons to WQS, the final rule require s states to and authorized tribes to adopt WQS variances as new or revised WQS and submit them to EPA for review and approval. This includes a decision to adopt a subsequent WQS variance. Some commenters said EPA ’s review and approval of a
variance “ renewal ” was not previously required and EPA was removing power and discretion from the states. Contrary to the commenter ’ s understanding, this is not a new position. EPA ’ s position has been that adoption or subsequent a doption (or renewal after expiration) of a WQS variance was subject to EPA review and approval. In response to the comment that EPA should only review state variance policy, EPA disagrees because individual WQS variances are new or revised WQS and as such require EPA review and approval. See also response E ssay 8.f.i for additional discussion on EPA ’ s consideration of WQS variances, not just variance policies or procedures to be WQS. Also, see response E ssay 8.i for a discussion on “ renewal ” of WQS variance s.Chapter 3 – Response Essays 8.m – Var – Legal

Adoption of WQS variances through the WQS adoption process ensures that the public is made aware that a WQS change is under consideration and has sufficient opportunity to comment on the WQS variance

. The final rule also ensures the state and tribal sta ndards reflect the applicable standards (the WQS variance) that will be used to derive effluent limitations. States and authorized tribes may use their adoption and implementation procedures so long as they comply with the requirements in section 131.14. EPA disagrees with the comments that allege that there is “ so much ambiguity and ‘ guidance ’ in the rule ” that EPA “ would acquire largely unbridled power to deny state submittals or require more information. ” EPA considers the final rule to set forth very c lear and well defined provisions on applicability, requirements for submission

, and implementation of WQS variances in National Pollutant Discharge Elimination System ( NPDES ) permits. EPA carefully considered all comments on the proposed rule and made revisions in response to those comments to help ensure the final rule was clear, achieved the objectives for authorizing WQS variances and would be implementable by the states and authorized tribes in a consistent and transparent way.

Another commenter critici zed the provisions in section 131.14 related to identifying and documenting best management practices ( BMPs ) for nonpoint source ( NPS ) controls. The commenter state d that these provisions “ plainly would usurp authorities that Congress reserved to states an d tribes under the CWA, violate longstanding EPA policy acknowledging that reservation, and interfere with exclusive state control (rather than mere regulatory primacy) over controls and methods related to nonpoint sources, as established by Congress and c onfirmed by federal courts .” The commenter went on to say that “ it would be arbitrary and capricious and contrary to law for EPA to coerce states into taking particular courses of action that EPA itself has no regulatory authority to pursue, and which Congress expressly reserved to states and tribes. ” EPA disagrees with the commenter. EPA ’ s final rule does not usurp the authorities of states or authorized tribes to regulate NPS of pollution n or does the final rule coerce states or authorized tribes

. The final rule only requires information regarding BMPs for NPS controls be provided and considered during the process of evaluating whether to adopt a WQS variances applicable

to a water body or waterbody segment. It is reasonable and appropriate in adopting such a WQS variance to consider the role of NPS in causing or contributing to the nonattainment of WQS. Similarly it is reasonable and appropriate in considering whether to adopt a subsequent WQS variance applicable to a water body or waterbody segment wh ether BMPs for NPS that are causing or contributing to the nonattainment are being implemented and whether they are effective. The purpose of a WQS variance is to make feasible progress toward attaining WQS and information on BMPs for NPS controls is impor tant in deciding whether this type of variance is appropriate

. For further discussion on BMPs for
NPS see response Essay 8.g.v.