August 2013 EPA 820-F-13-026

Summary of Water Quality Standards Regulatory Clarifications Proposed Rule

Designated Uses

Proposed Revision: Amends §131.10(g) to provide 

that where a use specified in section 101(a)(2) of the 

Act or a subcategory of such a use is not attainable, the 

highest attainable use (HAU)and criteria to protect that 

use shall be adopted in its place. It also amends 

§131.10(g), (j) and (k) to be clear when a UAA is and is 

not needed.

HAU will be defined as “the aquatic life, wildlife, 

and/or recreation use that is found to be both closest 

to the uses specified in section 101(a)(2) of the Act and 

feasible to attain, as determined using best available 

data and information through a UAA defined in 

§131.3(g).”

Issue: WQS regulation allows states and tribes to 

remove unattainable uses, but does not clearly specify 

that attainable uses must be retained. 

Goal: Ensure that states/tribes continue striving to 

meet the national goal of the CWA, even where it is 

determined to be unattainable at a particular time.

Preamble and rule also identifies: Examples of how a 

state may choose to articulate the HAU.

 (1) Use a sufficiently refined designated use 

 structure that is already adopted into state 

 regulation.

 (2) Revise the current designated use 

 structure to include more refined uses 

 and/or sub-categories of uses.

 (3) Designate a location-specific use and the 

 criteria that protect such a use.

Administrator’s Determination 

Proposed Revision: Amends §131.22(b) to 

add a requirement that an Administrator’s 

Determination must be signed by the 

Administrator and state it is a determination. 

Issue: Public and stakeholder 

misinterpretation that Agency memoranda 

or documents that articulate areas where 

states’ and tribes’ WQS may need 

improvements are official CWA section 

303(c)(4)(B) Administrator Determinations

that obligate EPA to propose and promulgate 

federal WQS.

Goal: Allow EPA and states/tribes to 

communicate directly and specifically on 

areas where WQS improvements should be 

considered and establish a more transparent 

process for the Administrator to announce

determinations made under section 

303(c)(4)(B) of the Act.

Requirements of Triennial Reviews

Proposed Revision: Amends §131.20(a) to clarify 

that where the EPA has published new or updated 

section 304(a) criteria recommendations, 

states/tribes shall re-examine their criteria to 

determine if any criteria should be revised to 

assure protection of designated uses.

Issue: States/tribes may retain criteria in their 

WQS that do not reflect updated science or fully 

protect designated uses, without considering the

availability of new or updated section 304(a) 

recommendations. The current regulations are 

not clear about this expectation.

Goal: Ensure states and tribes update WQS when 

necessary by adding an explicit expectation for 

states/tribesto review both criteria and 

designated uses.

The EPA has proposed targeted changes 

to the WQS regulation that aim to 

improve the regulation’s effectiveness 

in restoring and maintaining the 

chemical, physical and biological 

integrity of the Nation’s waters, and to 

clarify and simplify regulatory 

requirements. 

The basic structure of the water quality standards 

regulation (40 CFR part 131) was last revised in 

November 1983. EPA added tribal provisions in 

1991, “Alaska rule” provisions in 2000, and BEACH 

Act rule provisions in 2004.

At the 15-year point (July 1998), EPA issued a 

comprehensive advance notice of proposed 

rulemaking (ANPRM) and conducted an extensive 

dialogue with states and the public on over 130 

discrete issues. The ANPRM led to some program 

redirections, but EPA did not revise the regulation 

itself at that time.
August 2013 EPA 820-F-13-026

Summary of Water Quality Standards Regulatory Clarifications Proposed Rule

The proposed rule was published in the 

Federal Register on 09/04/2013. The EPA will 

receive public comments on the proposed rule 

for 90 days, until 12/03/2013. During the 90-

day public comment period, the EPA plans to 

hold 2 webinars and one public meeting.

WQS Variances

Proposed Revision: Adds §131.14 to establish 

regulatory guidelines for WQS variances and WQS 

variance renewals, including that a WQS variance 

submission must specify:

 (1) the pollutant(s), the permittee(s), and/or 

 the waterbody or waterbody segments to which 

 the WQS variance applies; 

 (2) numeric interim requirements that apply 

 during the WQS variance for CWA section 402 

 NPDES permitting and section 401 certification; 

 (3) an expiration date not to exceed 10 years; 

 and

 (4) a §131.10(g) factor or the proposed new 

 factor only available for variancesto justify why 

 and for how long a variance is necessary.

A WQS variance will be defined as “a time-limited 

use and criterion for a specified pollutant(s), 

permittee(s), and/or waterbody or waterbody 

segment(s) that reflect the highest attainable 

condition during the specified time period.”

Issue: Current regulation does not provide guidelines 

or boundaries on WQS variances; thus, WQS variances 

are not always used effectively to drive water quality 

progress.

Goal: Provide regulatory guidelines to encourage 

appropriate use of WQS variances and to allow states 

to achieve water quality improvements before 

resorting to a use change.

Antidegradation Implementation

Proposed Revision: Amends several provisions 

of §131.12 to specify that state/tribal methods 

must ensure:

 (1) high quality waters are identified on a 

 parameter-by-parameter approach or on a 

 waterbody-by-waterbody approach that does 

 not exclude any waterbody from Tier 2 

 protection solely because not all of the uses 

 specified in CWA section 101(a)(2) are 

 attained; and

 (2) decisions are made after conducting an 

 alternatives analysis to identify the 

 practicable alternative that either prevents or 

 minimizes degradation and implementing one

 of those alternatives. 

EPA also requests comment on whether the 

EPA should require the adoption of statewide 

antidegradation implementation methods as 

WQS.

Issue: High quality waters are not being 

adequately maintained and protected.

Goal: Enhance state and tribal implementation 

of antidegradation by strengthening the 

transparency and clarity of EPA’s expectations 

and the states’/tribes’ intentions.

Preamble also identifies: A list of minimum 

elements to be included in an implementation 

method in order for those methods to be 

consistent with EPA’s regulations. 

Provisions Authorizing the Use of 

Permit-Based Compliance Schedules 

Proposed Revision: Adds §131.15 to clarify that 

a permitting authority may only issue compliance 

schedules for WQBELs in NPDES permits if the 

state/tribe has authorized use of such 

compliance schedules in their WQS or 

implementing regulations. It also specifies that 

such provisions must be approved as WQS under 

section 303(c) of the Act.

Issue: Despite the EPA Administrator’s decision 

in In the Matter of Star-Kist Caribe, Inc (1990) 

(that compliance schedules may only be issued if 

the state/tribe has authorized them in their WQS 

or implementing regulations), compliance 

schedules are often included in permits without 

being authorized.

Goal: Clearly articulate in regulation what must 

be done for states/tribes to be able to utilize 

permit compliance schedules, consistent with 

the EPA Administrator’s decision in In the Matter 

of Star-Kist Caribe, Inc.