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1 of 56 EO 12866_OW WQS RIN 2040

- AF 16 NPRM FRN _2011 10 2 7

.

ENVIRONMENTAL PROTECTION AGENCY

40 CFR P art 131

[EPA

– HQ

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– 0606 ; FRL_XXXX

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RIN 20 40

– AF 16

Water Quality Standards Regulatory Clarifications

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

_______________________________________ _________________________
SUMMARY: The Environmental Protection Agency (EPA) is proposing changes to the federal water quality standards (WQS) regulation which help s implement the Clean Water Act . The changes will improve the regulation’s effectiveness in restoring and maintaining the chemical, physical

, and biological integrity of the n ation’s waters

. The
EPA is s eeking comments from interested parties on these proposed revisions

. The core of the current regulation has been in place since 1983 ; s ince then

, a number of issues have been raised by stakeholders or identified by the EPA in the implementation process tha t will benefit from clarification and greater specificity

. The proposed rule addresses the following key program areas: (1) Administrator’s determination s that new or revised WQS are necessary , (2) designated uses, (3) triennial review s , (4) an tidegradation, (5)

v ariances to WQS , and (6) compliance schedule authorizing provisions

. DATES: Comments must be received on or before [ INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]

. ADDRESSES: Submit your comments, identified by D ocket id entification ( ID ) No. EPA

– HQ

– OW

– 20 10

– 0606 , by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov

. Follow the online instructions for submitting comments.

Email: ow

- docket@epa.gov

. Mail: Water Docket , Environmental Protection Agency , Mail Code 2822T

, 1200 Pennsylvania Ave

. , NW

. , Washington, DC 20460

. Attention: Docket ID
No. EPA

– HQ

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– 0606

. Hand Delivery: EPA Docket Center, EPA West R o o m 3334 , 1301 Constitution Ave

. , NW., Washington, DC 20004, Attention: Docket ID No. EPA

– HQ

– OW

– 2010

– 0606

. Such deliveries are only accepted during the Docket Center ’s normal hours of operation

. Sp ecial arrangements should be m ade for deliveries of boxed information by calling 202

- 566

- 2426

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2 of 56 Instructions: Direct your comments to Docket ID No. EPA

– HQ

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– 2010

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. The
EPA ’ s policy is that all comments received will be included in the public docket without change and may be made available online at http://w ww.regulations.gov , including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose d isclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://w ww.regulations.gov or email

. The http://w ww.r egulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment

. If you send an email comment directly to the EPA without going through www.reg ulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet

. If you submit an electronic comment, the EPA recommends that you include your name an d other contact information in the body of your comment and with any dis c you submit

. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment

. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses

. For additional information about the EPA’s public docket visit the Docket Center homepage at http://www.epa.gov/epahome/dockets.htm

. Docket: All documents in the docket are listed in the http://w ww.regulations.gov index

. Although listed in the index, some information is not publicly available ( e.g., CBI or other information whose disclosure is restricted by statute )

. Certain other material s , such as copyrighted material, will be publicly available only in hard copy

. Publicly available docket materials are available either electronically in http://w ww.regulations.gov or in hard copy at the Office of Water Docket Center , EPA/DC, EPA West, Room 333 4

, 1301 Constitution Ave

. , NW

. , Washington, DC

. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays

. The telephone number for the Public Reading Room is (202) 566

– 1744 ; the telephone number for the Office of Water Docket Center is (202) 566

– 2426.

FOR FURTHER INFORMATION CONTACT: Christina Christensen

, Standards and Healt h Protection Division, Office of Science and Technology ( 4305T ), Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 ; telephone number: 202

– 566

– 1860 ; fax number: 202

– 566

– 0409; email address: WQSRegulatoryClarifications@epa.gov

. SUPPLEMENTARY INFORMATION: This supplementary information section is organized as follows:

Table of Contents

I. General Information

A. Does T his Action Apply to Me?
B. What Should I Consider as I Prepare My Comments for the EPA?
II. Background

A. What is the Statutory and Regulatory History of the WQS Regulation and Program?***E.O. 12866 Review

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B. How has the EPA E ngaged the P ublic and R eceived I nput in C onsidering
U pdates and I mprovements to th e Federal WQS Regulation? C. Why is the EPA Proposing Changes to the Federal WQS Regulation?
III. Program Areas for Proposed Regulatory Changes

A. Introduction
B. Administrator’s Determination s that New or Revised WQS are Necessary C. Designated Uses D. Requirements of T riennial Review s E. Antidegradation Implementation
F. W QS Variances G. Provisions Authorizing the Use of Permit

- Based Compliance Schedules
H. Other Changes
I V. When D oes T his Action Take Effect?
V. Economic Impacts on State and Tribal WQS Programs
V I

. Statutory and Executive Order Reviews

A

. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review
B

. Paperwork Reduction Act C

. Regulatory Flexibility Act
D

. Unfunded Mandates Reform Act
E

. Executive Order 13132 (Federalism)
F

. Executive Order 13175 G

. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks
H

. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distributi on, or Use
I

. National Technology Transfer and Advancement Act
J

. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low

- Income Populations.

I. General Information

. A. Does T

his Action Apply to Me?

S tate and tribal governments responsible for administering or overseeing water quality programs may be directly affected by this rulemaking

, as states and authorized tribes 1 may need to consider and implement new provisions, or revise existing provisions, in their w ater quality standards ( WQS or standards )

. Entities such as ind ustrial dischargers or publicly owned treatment works that discharge pollutants to waters of the United States may be indirectly affected by this rulemaking because WQS may be used in determini ng permit limits under the National Pollutant Discharge Elimination System (NPDES) or in implementing other Clean Water Act (CWA or the Act) regulatory

programs

. Citizens concerned with water quality and WQS implementation may also be

1 Hereafter referred to as “states and authorized tribes” or “states and tribes.” “State” in the Clean Water Act and this document refers to a state, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.***E.O. 12866 Review

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4 of 56 interested in this rulemaking , although they m ight not be directly impacted

. Categories and entities that may potentially be affected include the following :

Category Examples of potentially affected entities

State s and T ribes State s and authorized tribes (tribes eligible to administer WQS under the CWA )

. Industry Industries discharging pollutants to waters of the United States

. Municipalities Publicly owned treatment works or other facilities discharging pollutants to waters of the United States

.

This table is not inte nded to be exhaustive, but rather provides a guide for entities that may be directly or indirectly affected by this action

. It lists the types of entities of which the EPA is aware could be potentially affected by this action

. Other types of entities not listed in the table m ight be affected through implementation of WQS that are revised as a result of this rule

. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER
I NFORMATION CONTACT section.

B. What Should I Consider as I Prepare My Comments for the EPA?

1. Resubmitting Relevant Comments from 2010 Stakeholder and Public Listening Sessions.

From August through December 2010, the EPA held multiple listening sessions with stakeholders and the public, as well as consultation sessions with states

, tribes, and representatives of state and local elected officials, concerning the general directions of this p ropo s ed rule

. The EPA considered the views and c omments received from these sessions in developing this proposal. T he proposal published today has evolved substantially from the materials the EPA shared at that time

. If you submitted comments in response to any of those sessions and wish for these comme nts to be considered during the public comment period for this proposed rulemaking, you must resubmit such

comments to the EPA in accordance with the instructions outlined in this document.

2. Submitting C onfidential B usiness I nformation (CBI)

. Do not submit this information to the EPA through http://w ww.regulations.gov or email

. Clearly mark the part or all of the information that you claim to be CBI

. For CBI information in a dis c that you mail to the EPA , mark the outside of the dis c as CBI and then identify electronically within the dis c the specific information that is claimed as CBI

. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket

. Information so marked will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations ( CFR ) part 2.***E.O. 12866 Review

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5 of 56 3. Tips for Prepar ing Your Comments

. When submitting comments, remember to:
Identify th e rulemaking by docket number and other identifying information (subject h eading, Federal Register date and page number).

Follow directions

. The agency may ask you to respond to specific questions or organize comments by referencing a CFR part or section number. Submit any and all comments on any portion of the rulemaking that you wish to be considered. Explain why you agree or disagree, suggest alternatives, and substitute language for your requested changes. Describe any assumptions and provide any technical information and/or data that you used. If you provide an estimate of potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced. Provide specific examples to illustrate your concerns, and suggest alternatives. Explain your views as clearly as possible, avoiding the use of profanity or personal threats. Make sure to submit your comments by the comment period deadline iden tified.

II. Background

. A. What is the Statutory and Regulatory History of the WQS Regulation and Program?

T he CWA

— initially enacted as the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92

‒ 500 ) and subsequent amendments

— establish es the basic str ucture in place today for regulating pollutant discharges into the waters of the United States

. In the Act, Congress established the national objective to “ restore and maintain the chemical, physical, and biological integrity of the Nation’s waters, ” and t o achiev e “ wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the

water ” (s ections 101(a) and 101(a)(2) )

. T he CWA establishes the basis for t he current WQS regulation and program

. Section 301 of the Act provides that “the discharge of any pollutant by any person shall be unlawful” except in compliance with specific requirements of Title III and IV of the
Act

, including industrial and municipal effluent limitations specified under section 304 and “any more stringent limitation, including those necessary to meet WQS , treatment standards or schedule of compliance established pursuant to any State law or regulatio n.” Section 303(c) of the Act addresses the development of state WQS and provides for the following : (1) WQS shall consist of designated uses and water quality criteria based upon such

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6 of 56 (2) S tates shall establish WQS considering the following possible uses for their

waters

– propagation of fish, shellfish and wildlife, recreational purposes, public water supply, agricultural and industrial water supplies, navigation

, and other uses;
( 3 ) S tate and tribal standards must protect public health or welfare, enhance the quality of water, and serve the purposes of the Act;
( 4 ) S tates and tribes must review their standards at least once every 3 years; and
( 5 ) The EPA is required to review any new or revised state and tribal standards, and is also required to pro mulgate federal standards where the EPA fin d s that new or revised state or tribal standards are not consistent with applicable requirements of the Act or in situations where the Administrator determines that federal standards are necessary to meet the requirements of the Act.

The EPA established the core of the current WQS regulation in a final rule issued in 1983. 2 This rule strengthened previous provisions that had been in place since 1977 and moved them to a new 40 CFR part 131 ( 54 FR 51400)

. The resulting regulation describes how the WQS envisioned in the CWA are to be administered

. It clarifies the content of standards and establishes more detailed provisions for implemen ting the provisions of the Act

. The following are examples of how the regulation has interpreted and implemented the CWA provisions regarding standards : Establishes p rocedures to recognize the importance of designating beneficial uses to achieve the CWA section 101(a)(2) interim goal with regard to protecting aquatic life and recreational uses , and to provide states and tribes the option of establish ing sub

- categor ies of uses, such as cold water and warm water aquatic life designations (§131.10)

. Provides detail concerning the adoption of numeric water quality criteria

, including authoriz ing the modification of the EPA’s national recommended criteria to reflect site

- specific conditions , the use of criteria methodologies different from the EPA’s recommendat ions so long as they are scientifically defensible , and the use of narrative criteria where numeric criteria cannot be derived or to supplement numeric criteria (§131.11)

. Incorporates and clarifies the Act’s emphasis on the importance of preserving existing uses and identifying and preserving high quality and outstanding resource waters through longstanding antidegradation provisions

. The se provisions are designed to protect existing uses and the level of water quality necessary to support these uses ; to protect high quality waters and provide a transparent analytic process for states and tribes to determin e whether limited degradation of such waters is appropriate and necessary (§131.12).

2 In this preamble, the EPA uses the term “water quality standards regulation” to mean subparts A, B, and C of part 131. These three subparts, comprising sections §§131.1 through 131.22, contain general provisions, requirements for establishing standards, and procedures for review and revision of standards, respectively. Part 131 also includes a subpart D tha t contains the text of WQS the EPA has promulgated to replace or augment state and tribal standards.***E.O. 12866 Review

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7 of 56 In support of the 1983 regulation, the EPA has issued a numbe r of guidance documents , such as the “ Water Quality Standards Handbook ” (WQS Handbook) 3

, that have provided guidance on the interpretation and implementation of the WQS regulation

, and on scientific and technical analyses that are used in making decisions that would impact WQS

. The EPA also developed the “ Technical Support Document for Water Quality

- Based Toxics Control ” 4 (TSD) that provided additional guidance for implementing state WQS.
The part 131 regulation has been modified twice since 1983

. First, in 1991 the EPA added §§ 131.7 and 131.8 regarding tribes, pursuant to section 518 of the CWA ( 56 FR 64893 )

. Section 518, which was enacted in 1987 , i ncluded provisions extend ing the ability to participate in the WQS program to Indian t ribes

. S econd, in 200 0 the EPA promulgated §131.21(c), commonly known as the “Alaska Rule

, ” to clarify that new and revised standards adopted by states and tribes and submitted to the EPA after May 30, 2000 become applicable standards for CWA purposes only when approved by the EPA ( 66 FR 24641)

. B. H ow H as the EPA E

ngaged the P ublic and R eceived I nput in C onsidering U

pdates and I mprovements to the Federal WQS Regulation?

The EPA received comments, data, and information from over 6,000 commenters in developing “ Final Water Quality Guidance for the Great Lakes System ” in 1995 (60 FR 15366)

. The final Guidance represented more than six years of intensive, cooperative efforts that included participation by the eight Great Lakes s tates, the EPA, and other Federal agencies in open dialo gue with citizens, local governments, municipalities, academia, the environmental community, and industries located in the Great Lakes ecosystem

. This process entailed a thorough review and analysis of the federal water quality program and opportunities fo r greater clarity, focus, and improved implementation

. The final Guidance is codified in 40 CFR part 132 and h elp s establish consistent, enforceable, and long

- term protection s from all types of pollutants, with short

term emphasis on the types of bio

- accum ulative contaminants that accumulate in the food web and pose a threat to the Great Lakes System

. In 1998, the EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) to discuss and invite comment on over 130 aspects of the federal WQS regulation and

program , with a goal of identify ing specific changes that might strengthen water quality protection and restoration, facilitate watershed management initiatives, and incorporate evolving water quality criteria and assessment science into state and tribal W QS

programs

. (63 FR 36742). In response, the EPA received over 3

, 200 specific written comments from over 150 comment letters

. The EPA also held three public meetings during the 180

- day comment period where additional comments were received and discussed.

A s a result of this input, the EPA identified a number of high priority issue areas for which the Agency has developed guidance and continued further discussion and dialogue to assure more effective program implementation

. For example, m any ANPRM

3 F irst edition, December 1983 ; second edition, EPA 823

- B

- 94

- 005a, August 1994.

4 First edition, EPA 44 0 /4

- 85

- 032, September, 1985 ; revised edition, EPA 5 05/2

- 90

- 001, March 1991

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8 of 56 commenters expressed the need for additional guidance on establishing designated uses of water bodies and the process to follow when making designated uses more or less protective

. In order to receive input from a broad set of stakeholders on these topics, the
EPA held a follow

- up national symposium on designated uses on June 3

– 4, 2002 in Washington, DC. Approximately 200 interested citizens, government officials, and regulated parties attended this open meeting , which included presentations from a variety of stakeh olders and an expert panel representing different viewpoints

. 5 In addition

, the
EPA hel d four co

- regulator workshops between February 2005 and April 2006 with state, interstate, and tribal partners , and gathered further input and feedback on the establishm ent, adjustment, and implementation of designated uses. 6

C. Why is the EPA Proposing Changes to the Federal WQS Regulation?
The core requirements of the current WQS regulation have been in place for over 2 7

years

. These requirements have provided a strong fou ndation for water quality

- based controls, including water quality assessments, impaired waters lists, and total maximum daily loads ( TMDLs ) under CWA section 303(d)

, as well as for water quality

- based effluent limits (WQBELs) in NPDES discharge permits under CWA section 402

. As with the development and operation of any program, however, a number of policy and technical issues ha ve recurr ed over the past 27 years in individual standards reviews, stakeholder comments, and litigation that the EPA believes would be addressed and resolved more efficiently by clarifying, updating and revising the federal WQS regulation to assure greater public transparency, better stakeholder information, and more effective implementation

. From 2008 through 2010, the EPA held ongoing discussions with state and tribal partners and other stakeholders

. T hese discussions addressed a wide range of issues , from which a subset ha s been identified as significant areas of continuing concern

. These issues and the EPA’s proposed regulator y approaches to address them are discussed in detail in section III below

. The EPA believes that s tates

, tribes , other stakeholders, and the public will benefit from clarification i n these key areas to better understand and make proper use of available CWA tools and flexibilities, while maintaining open and transparent public participation

. Clear regulatory requirements and improved implementation will provide a more transparent and well

- defined pathway for restoring and maintaining the biological, chemical , and physical integrity of the n ation’s waters

. T he changes the EPA is proposing add or modify specific regulatory provisions to address key areas described below.

III. Program Areas for Proposed Regulatory Clarifications

. A. Introduction

. As discussed in section II.C, the EPA has had ongoing dialogue with states , tribes and stakeholders on key issues that are central to assuring effective implementation of the

5 Proceedings from the national symposium on designated uses can be found at http://water.epa.g ov/scitech/swguidance/waterquality/standards/upload/2002_08_06_standards_uses_sym posium_proceedings.pdf

. 6 A summary of the co

- regulator workshops and a link to the use attainability analysis (UAA) case studies can be found at http://water.epa.gov/scitech/swguidance/waterquality/standards/uses/

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9 of 56 WQS program

. As part of this process , the Agency has considered several fundamental questions in evaluat ing opportunities to improve implementation of the WQS program including which recurring implementation issues w ould benefit most from a regulatory clarification or update

, whether the re are emerging issues that could be more effectively addressed through regulatory revisions, whether the regulation continues to have the appropriate balance of consistency and flexibility for states and tribes

, and whether the resulting program effective ly facilitates public participation in standards decisions

. As a result of this evaluation and consideration of continuing input from states , tribes and stakeholders, the EPA is proposing changes to key program areas of its WQS regulation at 40 CFR part 13 1 that the Agency believes will result in improved regulatory clarity , more effective program implementation, and lead to environmental improvements in water quality

. This proposed rulemaking requests comment on regulatory revisions in the following six ke y issue area s: (1) Administrator’s determination that new or revised WQS are necessary

, (2) designated uses, (3) triennial review s , (4) an tidegradation, (5) WQS variances , a nd (6) compliance schedule authorizing provisions

. B. Administrator’s Determination s t hat New or Revised WQS are Necessary

. 1. The EPA Proposal

. The EPA is proposing to amend paragraph (b) of §131.22 to add a requirement that an Administrator’s determination must be signed by the Administrator or his or her duly authorized delegate, and must include a statement that the document is a determination for purposes of section 303(c)(4)(B) of the Act

. 2. Background and Rationale for Revision

. Se ction 303(c)(4)(B) of the CWA provides the EPA Administrator with authority to determine that a new or revis ed WQS is necessary to meet the CWA requirements

, typically in those situations where a state fails or is unable to act in a ma nn er consistent with the CWA

. Such a determination is made at the Administrator’s discretion, after evaluating all relevant facto rs

. An Administrator’s determination triggers the requirement for the EPA to prom ptly prepare and publish proposed regulations setting forth a revised

or new WQS for the waters of the United States involved , and for the EPA to promulgate such WQS unless th e state adopts and the EPA approves such WQS before the EPA promulgation

. The EPA is concerned that the process whereby the Administrator determines that new or revised standards are necessary is not always clearly understood or interpreted by the public and stakeholders

. In some instances, this lack of understanding has led to a mistaken conclusion that the EPA has made a CWA 303(c)(4)(B) determination when, in fact, the EPA did not ma k e and d id not intend to make a determination

. For example, Agency mem oranda or documents articulating areas where states’ WQS may need improvements have sometimes been construed or alleged by stakeholders to be official Administrator determinations that oblig ate the EPA to propose and promulgate federal WQS for such state s

. In order to ensure effective implementation of the national WQS

program, to provide direct, clear, and transparent feedback on state actions, and to maintain an open and constructive dialogue with states and stakeholders on important water quality issues, it is essential that the EPA have the ability to provide feedback

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10 of 56 states have the opportunity to consider and evaluate the Agency’s views

, witho ut fear of litigation triggering a duty on the part of the EPA to propose and p r omulgate WQS before either a s tate or the Agency believes such a course is appropriate or necessary

. The EPA believes that today’s revision would establish a more transparent process for the Administrator to announce any determination made under section 303(c)(4)(B) of the Act

. Such a revision will allow the EPA to effectively provide direct and specific written recommendations to states and tribes on areas where WQS improvemen ts should be considered , without the possibility that such recommendations will be construed as a determination that obligates the EPA to propose and promul gate new or revised standards

. The public’s ability under Section 553(e) of the Administrative Proce dure Act ( 5 U.S.C. 553(e) ) to petition the EPA to issue, amend, or repeal a rule, which could implicate the EPA’s discretionary authority under CWA section 303(c)(4)(B) , would not be affected by this proposed revision.

The EPA invites comments on the proposed amendment to paragraph (b) of §131.22

. The EPA also invites comment on any other options it should consider.

C. Designated Uses

. 1. The EPA Proposal

. The EPA is proposing to amend paragraph (g) at §131.10 to provide that where a
state or tribe demonstrates through the use attainability analysis (UAA) p rocess that a use specified in section 101(a)(2) , or a sub

- category of such a use, is not attainable , it must adopt the h ighest a ttainable u se and the criteria that protect such a use

. The EPA is also proposing to add the definition of HAU C , as defined in today’s proposal, to §131.3(m) and is making a clarifying change by deleting §131.10(k) in its entirety, as this provision is duplicative with §131.10(j).

2. Background

. Designated uses communicate a state’s or tribe’s environmental management objectives for its waters and drive on

- the

- ground water quality decision

- making and improvements

. To establish appropriate WQS , states and tribes define the water quality goals of a water body first by designating the use(s) and second by setting criteria necessary to protect those uses

. W QS are the foundation for other CWA requirements applicable to a water body, such as WQBELs for point source dischargers, as well as assessment of w aters and establishment of TMDLs for waters not meeting applicable WQS

. Because designated uses play such an important role in the effective implementation of the CWA, the EPA believes it is essential to provide clear and concise regulatory requirements fo r removing or revising a currently adopted use specified in section 101(a)(2) of the Act, or a sub

- category of such a use, particularly in light of

r ecurring input and questions on this issue and the potential for conflicting interpretations and inconsiste nt case by case WQS program implementation.
Under section 303 (33 U

. S

. C

. 1313) of the CWA, s tates are required to develop WQS for waters of the United States within the ir s tate

. WQS shall include designated use or uses to be made of the water and criteria necessary to protect the uses ( CWA***E.O. 12866 Review

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11 of 56 303(c)(2)(A) )

. The beneficial uses to be considered by s tates in establishing WQS are specified in the Act , including public water supplies, propagation of fish and wildlife, recreation, agricultural uses, industrial uses

, navigation and other purposes

. Designated uses are defined at 40 CFR 131.3(f) as the “uses specified in water quality standards for each water body or segment whether or not they are being attained.” A “use” is a particular function of, or activity in, a particular waterbody that requires a specific level of water quality.

Section 101(a)(2) of the CWA establishes the national goal that “ wherever attainable, an interim goal of water quality which provides for the protection and propagation of fish, shellf ish, and wildlife and provides for recreation in and on the water” be achieved by July 1, 1983

. CWA section 303(c)(2)(A) requires state and tribal WQS to “protect the public health or welfare, enhance the quality of the water and serve the purposes of this [Act].” The WQS regulation at 40 CFR part 131 interpret s and implement s these provisions through requirements that WQS protect the uses specified in section 101(a)(2) of the Act unless those uses are shown to be unattainable, effectively creating a rebut table presumption of attainability. 7 Thus, it is the EPA ’s longstanding interpretation that the uses specified in section 101(a)(2) of the Act are presumed attainable unless a state affirmatively demonstrates through a UAA 8 that 101(a)(2) uses are not attainable as provided by one of six regulatory factors at 131.10(g)

. 9

The WQS regulation at 40 CFR 131.10 requires states and tribes to specify appropriate water uses to be achieved and protected; requires that WQS ensure atta inment and maintenance of WQS of downstream waters ; allows for sub

- categories of uses (e.g., to differentiate between cold water and warm water fisheries) and seasonal uses; describes when uses are attainable ; lists six factors of which at least one must b e satisfied to justify removal of designated uses that are not existing uses; prohibits removal of existing uses; requires states to revise WQS to reflect uses that are presently being attained but not designated; and establishes when a state is required t o conduct a UAA

. States and tribes have flexibility when managing their designated uses consistent with the CWA and implementing regulation

. More s pecifically, the current WQS regulation require s a UAA when designating uses that do not include the uses s pecified in section 101(a)(2) of the CWA, when removing a designated use specified in section 101(a)(2) of the Act, or when adopting sub

- categories of such uses that require less stringent criteria

. The phrase “ u ses specified in section 101(a)(2) of the Act” refers to uses that provide for the protection and propagation of fish (including aquatic invertebrates) , shellfish, and wildlife, and recreation in and on the water, as well as for the protection of human health when consuming fish, shellfish, and ot her aquatic life

. 10 “Sub

- category of a use specified in

7 See 40 CFR 131.2; 131.5(a)(4); 131.6(a),(f); 131.10(g),(j).

8 See 40 CFR 131.3(g). A UAA is a structured scientific assessment of the factors affecting the attainment of the use that may include physical, chemical, biological, and economic factors as described in §131.10(g).

9 See 40 CFR 131.10(g). EPA’s “rebuttable pre sumption” that the uses specified in CWA section 101(a)(2) are presumed attainable, unless demonstrated to be unattainable through a UAA, is a long

- standing interpretation that has been upheld in Idaho Mining Association v. Browner, 90 F. Supp. 2d 1078 (D. Idaho 2000).

10 http://www.epa.gov/waterscience/standards/library/shellfish.pdf

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12 of 56 section 101(a)(2) of the Act” refers to any use that reflects the subdivision of uses specified in section 101(a)(2) of the Act into smaller, more homogenous groups of waters with the intent of reduci ng variability within the group

. 40 CFR 131.10(c) provides that states may adopt sub

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

- categories of uses

. The EPA has found that the clearer, more accurate, and refine d the designated uses are in describing the state’s or tribe’s objective for a water body, the more effective those use designations can be in driving the management actions necessary to restore and protect water quality

. 11

The current regulation at §131.1 0(g) and (h)(1) provides that states and tribes may not remove a designated use if it would also remove an existing use unless a use requiring more stringent criteria is added

. Existing uses are “those uses actually attained in the water body on or after N ovember 28, 1975, whether or not they are included in the water quality standards.” E xisting uses are known to be “attained” when both the use and the water quality necessary to support the use has been achieved. 12 The EPA recognizes, however, that all the necessary data may not be available

. Where data may be limited

, inconclusive, or not available, states and tribes have discretion to determine whether an existing use has been attained, based on either the use or the water quality. It is important

to note that t he prohibition on removing an existing use is not intended to apply to a situation where the state or tribe wishes to remove a use where removal would result in improving the condition of a water body

. The EPA interprets the regulation to allow the removal of existing uses where actions make the water body more like its minimally impacted condition

, so the provision at §131.10(h)(1) is not in tension with carrying out the goals of the CWA “to restore and maintain the chemical, physical, and biolo gical integrity” of the nation ’ s waters (CWA section 101(a)) . For example, if a warm water fishery exists behind a dam, the existing use provision would not prevent the state from removing that dam because doing so would likely restore the natural cold wat er aquatic ecosystem

. 3. Rationale for Revision

. As discussed above, s tates and tribes have flexibility to adjust designated uses through a UAA process in accordance with the provisions of §131.10(g)

. However, that flexibility is provided in the context of meeting the overall goals of the CWA at s ection 101(a) to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters .” For example , as part of the UAA process, a state may be able to adequately demonstrate, consistent wi th 40 CFR 131.10(g)(3)

, 13 that a current designated use for a particular class of aquatic life may not be attainable

. However, if some less sensitive aquatic organisms are able to survive at the site under current or future

11 EPA notes that a use may meet the description of a “sub

- category of a use specified in section 101(a)(2) of the Act,” but not provide an equal level of protection as a use specified in section 101(a)(2) of the Act. If a state wishes to designate such a sub

- category, a UAA would be required, consistent with §131.10(j).

12 See http://water.epa.gov/scitech/swguidance/waterquality/standards/upload/Smithee

- existing

- uses

- 2008

- 09

- 23.pdf

. 13 40 CFR 131.10(g)(3) allows a state to remove a designated use that is not an existing use if the state can demonstrate that attaining the designated use is not feasible because human

- caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more e nvironmental damage to correct than to leave in place.***E.O. 12866 Review

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13 of 56 conditions

, the goals of the CWA are not achieved by simply remov ing the aquatic life use designation and applicable criteria without considering if existing water quality can be maintained or, where applicable, if water quality can be restored

. Rather, the UAA

must a lso identify what level of aquatic life protection would be attainable and then the

state must designate that use

. In other words, §131.10 allows states and tribes to remove unattainable uses; however, attainable uses must be retained.

The highest attainab le use and c riteria (HAUC) is defined in today’s proposal as “ the aquatic life, wildlife, and/or recreation use and the criteria that protect such a use

, that are found to be both closest to the uses specified in section 101(a)(2) of the Act and are feasib le to attain , as determined using best available data and information throug h an appropriate UAA.” Requiring the HAU C to be adopted as an essential part of the UAA

process is important to ensure adequate implementation of both CWA sections 101(a) and 303(c)

. Section 303(c)(2)(A) requires that WQS shall “ enhance the quality of the water and serve the purposes of this” Act

. The objective of the CWA in section 101(a) is to restore and maintain the chemical, physical, and biological integrity of the Nation ’s waters. It is the national goal of the CWA in section 101(a)(2) to provide for the protection and propagation of fish, shellfish, and wildlife and recreation in and on the
water, “ where ver attainable

. ” The EPA interprets the WQS implementing regulation to mean that designated uses must protect the uses specified in section 101(a)(2) of the CWA unless such uses are demonstrated to be unattainable

. Where section 101(a)(2) uses are unattainable, it is important that states and tribes still strive to attain uses that continue to serve the purposes of the Act and also enhance the quality of the water. Thus, as part of the UAA process

, states and tribes must adopt the HAUC that is as close as possible to the designated uses specified in section 101(a)(2) of t he Act

. In determining the HAU C to adopt in place of an unattainable use, s tates and tribes should use the same regulatory factors (at 40 CFR 131.10(g)) and data analysis that were used to evaluate the attainability of the previously designated use

. When conducting this review and soliciting input from the public , states and tribes should consider not only what is currently attained, but also what is attainable in the future after achievable gains in water quality are realized

. Such a prospective analysis may involve the following : identifying the current and expected condition for a water body ; evaluating the effectiveness of best management practice s ( BMP s ) and associated water quality improvements ; examining the efficacy of treatment technology from engi neering studies ; and using water quality models, loading calculations

, and other predictive tools.

Once a state or tribe has determined the HAU C

, there are several different approaches it may wish to consider for articulating the designated use in the rele vant water quality standards regulations

. The EPA provides the following examples of how a state may choose to articulate the HAU C :

1. U se a sufficiently refined designated use structure that is already adopted into state regulation : Because m any states al ready have a sufficiently refined designated use structure adopted into state regulations, they could consider adopting the “next best” attainable use and associated criteria that already exists in the use structure as the HAU C

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14 of 56 For example, consider a sta te with the following four aquatic life uses : exceptional, high, modified, and limited aquatic life use

— each with associated dissolved oxygen criteria that protect the use

. The state determines through a UAA (based on a factor at §131.10(g)) that a particular stream cannot attain the designated “high aquatic life use” and associated dissolved oxygen criterion due to a low head dam and resulting impoundment

. Because t he dam cannot be removed or operated in such a way as to attain the dissolved oxygen criteria needed to protect the expected biological community at the site

, the state adopts the “modified aquatic life use” and associated dissolved oxygen criterion that are attainable

. The UAA documents that the “modified aquatic life use” and the associa ted dissolved oxygen criterion reflect the HAU C despite the disturbed condition of the water body.

2. Revise the current designated use structure to include more refined uses and/or sub

categor ies of uses : Some states may not have a refined designated use structure adopted into their state regulations, but rather have a general use category expressed as a “general aquatic life use

, ” “fish and wildlife use

, ” “recreation use

, ” and so on

. O r, a state may have a refined designated use structure, but the use cat egories are not refined sufficiently enough to accurately reflect the HAU C (e.g., the HAU C may fall somewhere in between the sub

- categor ies)

. If a state finds that multiple locations m ight have the same HAU C

, a state may wish to consider revising its current designated use framework to include more refined uses and/or sub

- categor ies and the criteria that protect such uses

. For example, a state may be able to adequately demonstrate (consistent with 40 CFR 131.10(g)(2)) that natural conditions or water l evels preclude the attainment of a use and associated water quality criteria

. The state may document that it is infeasible to attain an aquatic life use associated with fish because the water is naturally an intermittent or ephemeral water

. H owever, interm ittent and ephemeral streams provide essential habitat for different types of aquatic life (e.g., aquatic invertebrates) . Such an aquatic life use is likely attainable if not already attained

. Therefore, in this scenario the state may wish to adopt a ref

ined “intermittent aquatic life use” and the criteria that protect such a use to reflect the HAU C in its statewide designated use framework because such a use category reflects the naturally expected aquatic life use for intermittent streams that could be applied to multiple streams in the state

. As another example, some states have chosen to refine their use categories to reflect the varying degrees of biology that might be expected in a water body

. If a state is interested in revising its current designat ed use structure, it may wish to define its uses based on the composition and structure of the aquatic life expected for each use with associated biological and dissolved oxygen criteria adopted into regulation

. Incorporating such refinements into designat ed uses allows the state to tailor its use designations to reflect the actual biology expected and is implemented in a manner that is consistent with identifying and adopting the HAUC

. 3. Designate a location

- specific use and the criteria that protect such a use : A state may determine that a use is unattainable for one particular parameter (e.g., altered pH due to highly mineralized geology , or a combined sewer overflow (CSO)

- impacted use ) or suite of parameters in a specific location

. In such situations, the state may choose to adopt a use that more accurately reflects the location

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15 of 56 aquatic life use

, ” a “habitat limited aquatic life use,” or a “ minerals limited aq uatic life use.” The state would then adopt a new set of criteria that protect the use, but could adopt all the same criteria levels as were protective of the original use, except for the parameter or parameters limiting the location

- specific use

. Such an approach would not require a

stat e to add the location

- specific use in its framework, but it could do so if later if it finds that other waters will fall into the same category.
The concept of HAU C should not to be confused with “site

- specific criteria.” A site

specific criterion is desig ned to protect the current unchanged designated use, but the criterion value may be different from the statewide or otherwise applicable criterion because it is tailored to account for site

- specific conditions that may cause a given chemical concentration to have a different effect on one site than on another

. By contrast

, the criterion support ing a newly established highest attainable use is designed to protect the revised use associated with a different aquatic community expected in the water body

. In addition to today’s proposal requiring states and tribes to adopt the HAU C where a use is removed or revised under part 131.10(g), the EPA recommends that states and tribes consider the HAU C during a triennial review

. If new information becomes available d uring a triennial review to indicate that a use higher than what is currently designated is attainable , but the attainable use is not a use specified in section 101(a)(2) of the Act, states and tribes should revise their WQS to reflect the HAU C

. Finally, the EPA is proposing to remove §131.10(k). The EPA’s removal of §131.10(k) does not alter the EPA’s regulatory interpretation that states must adopt uses specified in section 101(a)(2) of the Act unless those uses have been shown to be unattainable. By r equiring states to conduct a UAA when designating uses not specified in section 101(a)(2) of the Act, when removing a subcategory of such a use, or when adopting subcategories of uses specified in section 101(a)(2) of the Act that require less stringent cr iteria, §131.10(j) alone makes clear that states must adopt uses specified in section 101(a)(2) of the Act unless those uses are shown to be unattainable. This interpretation is further supported by 40 CFR 131.2, 131.5(a)(4), 131.6(a), 131.6(f), and 131.1 0(g). For these reasons, the EPA considers §131.10(k) duplicative with §131.10(j).

The EPA invites comments on the proposed addition to 40 CFR 131.3(m), the proposed amendment to § 131.10 (g) , and the proposed deletion of § 131.10(k)

. The EPA also invites comment on any other options it should consider.

D. Requirements of Triennial Review s

. 1. The EPA Proposal

. The EPA is proposing to amend the triennial review requirements of paragraph (a) of § 131.20 to clarify that where the EPA has published a new or updated CWA section 304(a) criteri a recommendation, a state or tribe shall re

- examine its water quality criteria to determine if any criteria should be revised in light of the new 304(a) recommendation to assure that the designated use continues to be protected

. 2. Rationale for Revision

. S ection s 303(a) through (c) of the CWA require that states and tribes adopt WQS applicable to their interstate and intrastate waters and that the EPA review and approve or***E.O. 12866 Review

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16 of 56 disapprove these standards based on whether they are consistent with the Act. Section 303(c)( 1 ) further requires states and tribes to hold public hearings at least once every 3 years for the purpose of reviewing applicable WQS and, as appropriate, modifying and adopting standards

. Any new o r revised standards shall be submitted to the EPA for review and approval or disapproval

. The EPA adopted regulations in 1983 implementing these provisions at 40 CFR 131.20

. This regulation requires that states and tribes hold a public hearing to review

app licable WQS at least once every 3 years (i.e., a “triennial review”) and, as appropriate, modify and adopt standards

. Public hearings on WQS provide an essential opportunity for stakeholders and the general public to participate in the WQS

- setting process to provide input and raise issues to appropriate officials

. In addition, the regulation requires states and tribes to consider whether any new information has become available that indicates if uses specified in CWA section 101(a)(2) that were previously u nattainable are now attainable

. 40 CFR 13 1 .20 (c) provides that t he results of these reviews be submitted

to the EPA (see also §131.6 (f) )

. Stakeholders have expressed concern that states and tribes may retain criteria in their WQS that are no longer protective of designated uses for multiple triennial review cycles, despite the availability of new or updated EPA CWA section 304(a) criteria recommendations

. The EPA shares this concern where particular adopted s tate or tribal water qu ality criteria may not reflect updated science and information that were used to develop new or updated recommended criteria and, as a result, may not fully protect applicable designated uses. In this regard, 40 CFR 131.20(a) requires that any waterbody

se gment with WQS that do not include the uses specified in CWA section 101(a)(2) be

re

- examined and updated if new information becomes available to indicate that previously unattainable CWA section 101(a)(2) uses are now attainable

. However, because 40 CFR 1 31.20(a) does not include a parallel statement regarding criteria that support these uses , states and tribes may not re

- evaluate their existing criteria once every 3 years to ensure that the criteria continue to be protective of the designated uses, even i f

new or updated information such as the EPA’s new or updated 304(a) recommendations has become available. As a result, the EPA is proposing to include an explicit reference to 304(a) recommended criteria at 131.20(a)

, to parallel the existing reference to designated uses

. The EPA invites com ments on the proposed amendments to paragraph (a) of § 131.20

. The EPA also invites comment on any other options it should consider.

E. Antidegradation Implementation

. As discussed in more detail below, the EPA is proposi ng to amend several provisions of §131.12 related to implementing the antidegradation requirements. These include 1) clarifying the identification of Tier 2 high quality waters, 2) articulating components of a required alternatives analysis to support sta te and tribal decision

- making on whether to authorize limited degradation of high quality water, and 3) specifying that implementation methods be adopted as part of a state’s water quality program. Additional conforming changes are also being proposed to §§131.5 and 131.6.***E.O. 12866 Review

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17 of 56 1. Background

. S ection 101(a) of the CWA emphasizes the prevention of water pollution and expressly includes the objective “to restor e and maintain the chemical, physical and biological integrity of the N ation’s waters (33 U.S.C. 1251) (emphasis added). The antidegradation requirements that the EPA incorporated by regulation in 1983 into 40 CFR 131.12 implement the maintenance aspect of CWA section 101(a) and are an essential component of the overall WQS program . Although designated use s and criteria

are the primary tools states and tribes use to achieve the uses specified in CWA section 101(a)(2), antidegradation complements these by providing a framework for maintaining and protecting waters that either are attaining or are higher qual ity necessary to support the CWA 101(a)(2) goals, or are O utstanding N ational R esource W aters (ONRWs). Antidegradation plays a critical role in allowing states and tribes to maintain and protect the valuable resource of high quality water by ensuring that decisions to allow a lowering of high quality water are made in a transparent public manner and based on a sound technical record.
In the Water Quality Act of 1987, Congress expressly affirmed the principle of antidegradation that is reflected in section 101 of the Act. In those amendments to the CWA, Congress incorporated a reference to antidegradation policies in section 303(d)(4)(B) of the Act (33 U.S.C. 1313(d)(4)(B)): “Standard Attained

– For waters identified under paragraph (1)(A) where the quality of such waters equals or exceeds levels necessary to protect the designated use for such waters or otherwise required by applicable WQS, any effluent limitation based on a total maximum daily load or other waste load allocation established under this secti on, or any WQS established under this section, or any permitting standard may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section” (emphasis added). This provision not only confirms t hat an antidegradation policy is an integral part of the CWA, but also explains the relationship of the antidegradation policy to other CWA regulatory programs. ( PUD No. 1 of Jefferson County v. Washington Department of Ecology , 511 U.S. 700, 705 (1994): “ A 1987 amendment to the Clean Water Act makes clear that section 303 also contains an ‘antidegradation policy’...Specifically, the Act permits the revision of certain effluent limitations...only if such revision is subject to and consistent with the antidegrad ation policy established under [CWA section 303] 33 U.S.C. sect. 1313(d)(4)(B)).” High quality water provides support for aquatic life and recreation and supports unique and significant ecologies and species habitat. High quality waters can possess a greate r diversity of biological species and a more complex community structure than other waters. These attributes confer a special degree of resiliency and resistance to adverse effects, particularly as the nation’s waters face an increasing degree of stress fr om anthropogenic influences. Therefore, maintenance and protection of high quality waters has never been more important.
Protection of high quality waters is central to supporting both economic and community growth and sustainability. High quality water c ontributes to our public health, aquatic ecosystems, drinking water supplies, and to the welfare of families and communities. The health and growth of tourism, recreation, fishing, and businesses and the jobs they create rely on a high quality and sustaina ble source of water. Degradation of water quality results in increasing public health risks, declining aquatic communities and***E.O. 12866 Review

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18 of 56 ecological diversity, and increasing treatment costs that must be borne by ratepayers and local governments. Maintenance of high quality waters can save time and economic resources to a community in the long

- term. Using an antidegradation program to prevent the degradation of a water body in the first place is very often more cost

- effective and efficient than costly, protracted, and often divisive long

- term restoration efforts. In addition, maintaining a water body in its initial high quality condition helps ensure the preservation of unique attributes that may ultimately be impossible to fully restore in a number of situations.

Cur rently, 40 CFR 131.12 requires states and tribes to adopt an antidegradation policy and identify implementation methods for that policy

. The state’s or tribe’s policy must provide protection for all existing uses , hereafter referred to as “Tier 1” protecti on (40 CFR 40.131.12(a)(1)). The policy must also require the maintenance and protection of high quality (“Tier 2”) waters unless the state finds that “allowing lower water quality is necessary ” to accommodate “ important economic or social development in the area in which the waters are located ,” a process hereby referred to as “Tier 2 review” (40 CFR 40.131.12(a)(2)). Additionally, the policy must provide for the maintenance and protection of water quality in ONRWs, identified by the state or tribe

, here i nafter referred to as “Tier 3” waters. (40 CFR 40.131.12(a)(3)). Today’s proposal focuses on different aspects of state and tribal implementation methods to ensure effective and transparent implementation of Tier 2 high quality water antidegradation prote ction provisions.
In this regard, the EPA indicated in its 1998 ANPRM that “on a national scale, antidegradation is not being used as effectively as it could be,” a concern that continues today and is echoed by stakeholders who have identified antidegrada tion as an underu sed component of water quality protection . Although t he federal antidegradation regulation is intended to help states and tribes protect and maintain high quality waters

, the number of waters that are declared impaired continues to grow. A recent U.S. Geological Survey study found that “increasing nutrient concentrations were most common in relatively pristine streams...” [ “ Nutrients in the Nation’s Streams and Groundwater: National Findings and Implications, 2010 ”; http://pubs.usgs.gov/fs/2010/3078/) .] If antidegradation is not implemented effectively, the many benefits of high quality waters may be abandoned after limited or no consideration of the long

- term consequences of lowering water qua lity or an evaluation of the feasible alternatives that might be available to reduce the need to accommodate increased pollution.

While the EPA has issued guidance in the past to help facilitate state implementation of the regulatory antidegradation provi sions

, the EPA received substantial feedback from stakeholders that existing CWA antidegradation regulatory provisions and related guidance have not been successful in assuring consistent and effective implementation of Tier 2 high quality water protection s. Moreover, state co

- regulators have recognize d the limits of substantial national antidegradation program reliance on guidance alone as the key driver of CWA implementation. Most recently o n March 30, 2011, the Environmental Council of the States (EC OS) published a resolution en titled “Objection to U.S. Environmental Protection Agency’s Imposition of Interim Guidance, Interim Rules, Draft Policy and Reinterpretation Policy” in which it states that the “EPA should minimize the use of interim guidance, interim rules, draft policy and reinterpretation policy and eliminate the practice of directing its regional or national program managers to***E.O. 12866 Review

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19 of 56 require compliance by states with the same in the implementation of delegated programs.” For these and the other r easons discussed above, the EPA is, therefore, revising its regulation to clarify and update current CWA regulatory expectations for transparent and effective state antidegradation implementation.

2. The EPA Proposal

— Part 1: Identification of High Quality Waters.

The EPA is proposing to add paragraph (b)(1) to §131.12 to provide that Tier 2 high quality waters are identified on either a parameter

- by

- parameter basis or on a water body

by

- water body basis, as long as the state implementation methods ensure wa ters are not excluded from Tier 2 protection based solely on the impairment of a single parameter or group of parameters if any of the uses specified in CWA section 101(a)(2) is attained. By “if any of the uses specified in CWA section 101(a)(2) is attain ed” the EPA means any of the uses and functions encompassed within the CWA section 101(a)(2) , such as aquatic life support, wildlife support, consumption of aquatic life, and recreation

, is attained . For example, where a cold water fishery use is being att ained but recreation in and on the water is not being attained due to one or a group of parameters, the water body would still be considered Tier 2. Once a water body is identified as Tier 2, a state must conduct a
T ier 2 review for a proposed lowering of any parameter for which the waterbody is high quality.
The nationally applicable water quality standards regulation at §131.12 describes high quality waters as where the quality of the waters exceed levels necessary to support the propagation of fish, she llfish, and wildlife and recreation in and on the water (i.e., the CWA goals articulated in section 101(a)(2)). States typically use one of two approaches to identify high quality waters. While the EPA specified in the “Water Quality Guidance for the Great Lakes System” that high quality waters subject to that regulation must be identified using a parameter

- by

- parameter approach, the WQS regulation applicable to all states and tribes does not currently specify how a state or tribe must identify its high

qua lity waters for purposes of the antidegradation requirements. States and tribes using a parameter

- by

- parameter approach identify high quality waters as where the water quality is better than applicable criteria developed to support the CWA 101(a)(2) use. The parameters considered are those that would be affected by a proposed activity, and each parameter is considered independently. States and tribes using a water body

- by

- water body approach identify high quality waters by weighing a variety of factors to classify a water body’s overall quality.
The EPA has found, however, that because states and tribes have significant discretion in deciding where to conduct Tier 2 reviews, it is currently possible for high quality waters to be identified on a water body

- by

- water body basis in a manner contrary to the intent of the antidegradation provisions. In some cases, states or tribes have implemented antidegradation such that where a water body is listed as impaired on the CWA section 303(d) list for one or more parameter s, the state automatically considers the water no longer high quality for any parameter even if one or more of the uses specified in CWA 101(a)(2) are being attained As a result, the state would no longer conduct Tier 2 reviews before al lowing a lowering of water quality for any parameter. Section 303(d) listing for impairment with respect to one parameter is a potentially poor indicator of the overall quality of a surface water. In some cases a water body might be impaired for one***E.O. 12866 Review

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20 of 56 parame ter yet still offer sufficiently high overall water quality to support recreational or ecological functions at levels higher than those that are minimally necessary to support at least one of the uses specified in CWA 101(a)(2). Such a means of identifying high quality waters would deny Tier 2 protection to a water body that is of high quality overall despite its impairment for one parameter.
If a water body can be excluded from Tier 2 protection on the basis of even one parameter, without a holistic evalua tion of the water body, it is possible that a large number of state and tribal waters would never be eligible for Tier 2 review for any parameter. Thus, such water bodies could be degraded further without a public participation process. For example, mercur y is widely prevalent in U.S. waters and is known to bioaccumul ate in fish tissue . A recent statistically

- based EPA sampling survey found predator species fish tissue in 49 percent of the sampled population of lakes in the conterminous United States with surface areas greater than or equal to 1 hectare exceeded the EPA’s recommended 0.3 ppm tissue

- based mercury criterion

. [“National Study of Chemical Residues in Lake Fish Tissue,” EPA 823

– R

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. If all states and tribes used an approach for ident ifying high quality water whereby impairment with respect to one parameter rendered the water body ineligible for Tier 2 protection, almost half of the lakes would automatically be excluded from Tier 2 high quality water protection. The EPA’s view is that this is an overly narrow interpretation of the objectives of the CWA as outlined in the antidegradation regulation.
The EPA recognizes that there may be multiple ways for a state or tribe to develop a water body

- based approach for identifying high quality waters consistent with the goals of the CWA and the antidegradation regulation . The proposed regulatory language would provide that waters cannot be excluded from Tier 2 protection based solely on the impairment of a single parameter or group of parameter s where any of the uses specified in CWA 101(a)(2) is in attainment. The EPA understands that in some cases, §131.12(a)(2) has been interpreted to mean that if any one of the uses reflecting CWA 101(a)(2) goals is not supported, that the water body as a w hole cannot be considered high quality. The regulatory language, however, is derived from the language in CWA 101(a)(2) which states the interim national goal to achieve water quality that provides for aquatic life and recreation. The intent of the CWA s tatement is to strive towards all of the uses encompassed by that phrase, and not to stop striving towards all of the uses simply because one of them is not achieved. The EPA’s proposal and interpretation of 40 CFR 131.12(a)(2) is consistent with the inte nt of the CWA.
In implementing a protective water body

- by

- water body approach, the EPA would expect the state or tribe to consider a combination of chemical, biological , and physical characteristics in identifying high quality waters. In other words, the EPA would expect the state or tribe to use all the relevant available data to conduct an overall holistic assessment of these characteristics in order to determine whether a water body would receive Tier 2 protection. Some of the factors a state or tribe m ay consider include, but are not limited to, existing aquatic life uses including aquatic assemblages, habitat, hydrology, geomorphic processes, and landscape condition; existing recreational uses and recreational significance; and the overall value and si gnificance of the water body from an ecological and public

- use perspective. Numerous tools, such as biological, habitat, hydrologic, geomorphic, and landscape assessments or the environmental impact***E.O. 12866 Review

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21 of 56 statement rating system, could be useful to states and tr ibes in making and supporting these judgments. The EPA invites comments on the proposed addition of paragraph (b)(1) to §131.12. The EPA also invites comments on any other options it should consider.

3. The EPA Proposal

— Part 2: Alternatives Analysis and Se lection of an Alternative to Implement.

The EPA is proposing to add paragraph (b)(2) to §131.12 to ensure that states and tribes will only make a finding that allowing lower water quality is necessary to accommodate important economic or social development , as required in § 131.12(a)(2), after conducting an alternatives analysis . The alternatives analysis must evaluate a range of non

- degrading and minimally degrading alternatives that have the potential to prevent or minimize the degradation associated with the proposed activity . Today’s proposal also provides that a decision to authorize limited degradation of high quality water will reflect implementation of a feasible alternative that either prevents or minimizes degradation.

Section 131.12(a)(2) also provides that high quality water shall be maintained and protected unless the state or tribe finds (after satisfaction of public participation and intergovernmental coordination requirements) that “allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located ” (40 CFR 131.12(a)(2)). As discussed previously, this process is called a Tier 2 review. Tier 2 review calls for the state or tribe to investigate two questions: (1) whether “allowing lower water quality is necessary,” typically by examining alternatives to the proposed degradation through an alternatives analysis; and (2) whether the proposed activity that will result in low er water quality will “accommodate important economic or social development,” through a socio

- economic analysis. States and tribes may determine the order in which to complete the two aspects of the finding. While this finding is a state or tribal respon sibility, the EPA recognizes that states and tribes may establish processes requiring the entity responsible for conducting the proposed activity to provide information or conduct the necessary evaluations.
Although the existing regulation implies that the state or tribe must have a means of evaluating whether a lowering of water quality is necessary, currently there is no explicit requirement to conduct an alternatives analysis. E ven if a state or tribe conduct s an alternatives analysis, the regulation do e s not specify which alternative the state or tribe must select to be implemented. This lack of specificity can result in situations where a state or tribe is not able to fully evaluate less

- degrading or non

- degrading alternatives to the proposed activity, or situations in which the state or tribe may not implement a known less

- degrading or non

- degrading alternative that is feasible because of an incomplete evaluation to support such alternatives. The EPA’s view is that this lack of specificity can lead to s tate decisions to lower water quality without appropriately making a finding that a lowering is necessary, contrary to 131.12(a)(2). This issue was considered carefully as part of the development of updated water quality requirements for the Great Lakes st ates. The regulation at 40 CFR 132, Appendix E, addresses it by requiring that any entity seeking to degrade high water quality must submit an antidegradation demonstration for consideration by the state. This demonstration includes an analysis identifyi ng any cost

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22 of 56 effective pollution prevention alternatives and techniques , as well as an analysis identifying alternative or enhanced treatment techniques (and their relative costs) that are available to the entity and that would eliminate or significantly re duce the extent to which the increased loading results in a lowering of water quality. States and t ribes should tailor the level of detail and documentation in antidegradation reviews to the specific circumstances encountered . The state then uses that info rmation to determine whether or not the lowering of water quality is necessary.
Under the approach proposed today, the state or tribe would conduct its alternatives analysis by considering a range of available non

- degrading and minimally degrading alternat ives to the proposed activity. Similar to the alternatives analysis provided for in 40 CFR 132, this evaluation would include a consideration of any available non

degrading or minimally degrading pollution prevention alternatives and enhanced

treatment te chniques, but would not be limited to those. For example, alternatives could include no discharge

, pollution prevention measures, process changes, reduction in the scale of the project, advanced or different treatment technologies, water recycling and

reus e , land application, seasonal or controlled discharge options avoiding critical water quality periods, and alternative discharge locations.
Once the state or tribe has identified a range of alternatives, the state or tribe would evaluate the alternatives in terms of the extent of degradation that would result. By initially considering a range of alternatives that represent a range from non

- degrading to minimally degrading as opposed to simply identifying the single least degrading alternative, the state or tribe then has the flexibility to select the best alternative among those, considering the implications and technological and economic feasibility of the alternatives more holistically, and considering the implications beyond the direct effects on water q uality, such as cross

- media impacts (e.g., impacts on land due to land application of pollutants found in water). As reflected in the Great Lakes System regulation at Part 132, the EPA believes states and tribes should tailor the level of detail and docume ntation of alternatives analyses in antidegradation reviews to the significance and magnitude of the particular circumstances encountered

. The EPA invites comment on the proposed addition of paragraph (b)(2) to §131.12. The EPA also invites comment on a ny other options it should consider.

4. The EPA Proposal

— Part 3: Adopt ing Legally Binding Antidegradation Implementation Methods

. The EPA is proposing to add paragraph (b) to §131.12 to specify that states and tribes adopt antidegradation implementation methods to improve program implementation, ensure consistency with the CWA, and provide transparency as to applicable state antidegradation review requirements. The EPA is making conforming changes to language describing the EPA’s authority to review and approve or disapprove

state

- adopted water quality standards related to antidegradation requirements in §131.5(a). The EPA is also making conforming changes to §131.6(d).

Stakeholders have raised concerns that some states and tribes have not identified antidegradation implementation methods, despite the fact that the regulation requiring this was established in 1983. Specifically, they are concerned that t he absence of such***E.O. 12866 Review

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23 of 56 methods reduces transparency in the implementation of states’ and trib es’ policies, and potentially limits the ability to ensure protect ion of existing uses, high quality waters , and ONRWs to the full extent required by the regulation

. Even where states and tribes have identified antidegradation implementation methods outsid e of regulation , and which are consistent with 40 CFR 131.12, an absence of legally binding state or tribal methods can impair the ability of states and tribes (as well as the public’s ability ) to ensure the effective and consistent implementation of those methods . The CWA at section 101 ( e) specifically states 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, encour aged, and assisted.... ” If a state develops antidegradation implementation methods outside of regulation, such methods may not be readily available to the public, to provide the public with an opportunity to influence how the state implements its antidegra dation requirements, or to give the public an opportunity to provide input into the state’s decisions of how to maintain the quality of its

waters.
Section 501(a) of the CWA (33 U.S.C. 1361(a)) authorizes the EPA Administrator to “prescribe such regulatio ns as are necessary to carry out [her] functions under this Act.” The CWA, under section 303(c), also specifies that the EPA Administrator must review and approve new or revised WQS after determining they are consistent with applicable requirements under t he CWA. The antidegradation implementation methods form the fundamental framework for implementing antidegradation policies, which are critical components of WQS. As such, requiring the implementation methods to be adopted subject to the EPA’s review and a pproval or disapproval is necessary for the Administrator to carry out her functions in the CWA. The EPA’s review under section 303(c) of the act will ensure the consistent and effective implementation of the EPA’s antidegradation provisions so that waters will be maintained and protected in accordance with the objectives of the Act.
Additionally, because antidegradation is an essential part of WQS, state and tribal approaches to implementing antidegradation requirements have direct implications for NPDES permits as well as other federal permits and licenses for activities that affect water quality. Therefore, these implementation approaches should be established in the same manner as other state and tribal WQS with notice and comment rulemaking and opportu nity for public involvement on the most appropriate ways to assure effective implementation.
Finally, the “ Water Quality Guidance for the Great Lakes System ” (40 CFR Part 132) provides that an acceptable antidegradation policy and implementation methods a re required elements of a state’s or tribe’s WQS program for waters of the Great Lakes system. That regulation requires that Great Lakes states and tribes adopt provisions into their policy and implementation methods that are consistent with a list of spec ifications, including details on how high quality waters are to be identified and on the components of antidegradation Tier 2 reviews.
Consistent with this “Water Quality Guidance for the Great Lakes System” requirement and for the reasons explained, the EPA is proposing and seeking comment s

on a revision to the antidegradation regulation at 40 CFR 131.12 that would require a***E.O. 12866 Review

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24 of 56 state or tribe to adopt antidegradation implementation method s in order to improve program implementation, ensure consistency with C WA, and provide transparency as to applicable state or tribal antidegradation review requirements. The EPA expects that, in order to be consistent with today’s proposal, a state or tribe’s adopted implementation methods will describe how it will implement each aspect of its policy, consistent with §131.12(a), and how antidegradation decisions will be documented such that there will be sufficient information available to the public and for the EPA permit review to ensure that activities affecting water quali ty are authorized consistent with the state’s antidegradation policy and CWA requirements

. The EPA invites comments on the proposed addition of paragraph (b) to §131.12. The EPA also invites comments on any other options it should consider.

5. Minimum Elements of an Antidegradation Implementation Method. To facilitate development of implementation methods, the EPA is providing in this preamble a list of the areas states’ and tribes’ implementation methods would need to address, at a minimum, to be consi stent with the WQS regulation. This list is based on requirements currently found in the federal antidegradation regulation, as well as proposed requirements found in today’s action.

1) Scope and applicability : the state or tribe will describe the scope and applicability of antidegradation.
2) Existing uses protection : t he state or tribe will ensure the maintenance and protection of all existing uses and the water quality necessary to protect the existing uses.
3) High quality water protection
a) Identification of h igh quality water : the state or tribe will identify high quality water s on either a parameter

- by

- parameter basis or a water body

by

- water body basis , as long as the state implementation methods ensure waters are not excluded from Tier 2 protection based so lely on the impairment of a single parameter or group of parameters if any of the uses specified in CWA section 101(a)(2) is attained.
b) Alternatives analysis and social/economic analysis : the state or tribe will determine whether the lowering of water quali ty that would result from a proposed activity is necessary to accommodate important economic or social development in the area in which the waters are located through an alternatives analysis and a social and/ or economic analysis.
c) Public participation and intergovernmental coordination : the state or tribe will ensure full satisfaction of the public participation and intergovernmental coordination provisions of the state’s or tribe’s continuing planning process in any finding that will allow lower water qual ity.
d) Requirements for point and nonpoint sources : the state or tribe will ensure that there shall be achieved the highest statutory and regulatory***E.O. 12866 Review

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25 of 56

requirements for all new and existing point sources and all cost

- effective and reasonable best management pra ctices for nonpoint source control when allowing a lowering of water quality.
4) ONRW protectio n : the state or tribe will ensure the maintenance and protection of water quality for waters identified as ONRWs.
5) Thermal Discharges : T he state or tribe will ensure consistency with Section 316 of the Act in cases that involve potential water quality impairment associated with thermal discharges.

6. How Does This Proposal Affect States for Which the EPA has Promulgated Antidegradation Implementation Methods?

The revised WQS regulation will appl y to all states , authorized tribes, and territories

, regardless of whether or not the EPA has previously promulgated an antidegradation policy or implementation methods for the state or tribe

. F. WQS Variances

. 1. Background

. T he EPA ha s encouraged states and tribes to utilize WQS variances 14 (hereafter referred to as “variances”)

, where appropriate, as an important WQS tool that provides states and tribes time to make progress towards attaining a designated use and criteria

. While the EP A has offered input and support for variances through Office of General Counsel legal decisions 15

, guidance, memoranda, and approval actions for many years explaining that variances may be granted if the state demonstrates that the variance meets the same requirements as a permanent 16 designated use change

, the WQS regulation lack s explicit provisions on the issue. As a result, 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, particularly with regard to nutrients and implementation of numeric nutrient criteria.
The CWA speci fies an interim goal that, “wherever attainable,” water quality provide for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water. In implementing the CWA, the regulation at 40 CFR131.10 establishes provisions specifying how a state may determine where the uses specified in section 101(a)(2) or subcategories of such uses are not ultimately attainable. In 1977, an Office of General Counsel legal decision considered the practice of temporarily downgrad ing the WQS as it applies to a specific discharger rather than

14 The EPA distinguishes WQS variances, as described in today’s proposed rulemaking, from variances as described in the EPA’s permitting regulation at §122.2.

15 The EPA’s memoranda discussing variances are available on the EPA’s website at http://water.epa.gov/scitech/swguidance/waterquality/standards/handbook/chapter05.cfm#section3

. 16 “Permanent” is used here and throughout this section to contrast between the time

- limited nature of variances and designated use changes in accordance with 40 CFR 131.10 that require a revision to a State’s water quality standards to reverse. In accordan ce with 40 CFR 131.20, waters that “do not include the uses specified in section 101(a)(2) of the Act shall be re

- examined every three years to determine if new information has become available. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingly.”***E.O. 12866 Review

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26 of 56 permanently downgrading an entire water body or waterbody segment(s) and determined that such a practice is acceptable as long as it is adopted consistent with the substantive requirements for permanently downgrading a designated use. In other words, a state may change the standard in a more targeted way rather than remove the standard all together so long as the state is able to show that achieving the standard is “unattainable” for the term of the variance. EPA further explained that it would be appropriate to grant a variance based on any of the six factors for removing a designated use as listed in section §131.10(g) 17

. The state practice described in the Office of General Counsel legal decisi on became known as adopting a “variance” to WQS. Specifically, a variance is a time

- lim ited designated use and criterion that is targeted to a specific pollutant(s), source(s), and /or water body or waterbody segment(s) that reflects the highest attainable condition during the specified time period . Variances are different from changes to the designated use and associated criteria in that they are intended as a mechanism to provide time for states and stakeholders to implement adaptive management approaches that will improve water quality where the designated use and criterion currently in place are not being met , but still retain the designated use as a long term goal . Variances are limited in scope . For example

, variances typically address one pollutant and are an environmentally preferable tool over a designated use change because variances retain designated use protection for all pollutants as they apply to all sources with the exception of those specified in the variance. Even the discha rger who is given a variance for one particular constituent (e.g., chlorine) will be required to meet the applicable criteria for all other constituents. The variance is given for a limited time period and the discharger must either meet the WQS upon the e xpiration of this time period or must make a new demonstration of “unattainability.” Thus, when properly applied, a variance can lead to improved water quality over time, and in some cases, full attainment of designated uses due to advances in treatment te chnologies, control practices, or other changes in circumstances, thereby furthering the objectives of the CWA.
Presently, the nationally applicable WQS regulation only mention s variances in 40 CFR 131.13 . This provision indicates that variance policies a re 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

. The EPA provided variance procedure requirements when it promulgate d WQS for Kansas (§131.34(c)), Puerto Rico (§131.40(c)), and the Great Lakes System (§132, Appendix F, Procedure 2). However, the nationally applicable regulation does not explicitly address questions such as when a variance can be granted, how a variance must be justified, what is required during the term of the variance, or for how long a variance can be granted. While the nationally applicable regulation do es not provide specifics on variances, the EPA ’s longstanding position is that variances , as time

- l imited and narrow use revisions

, are appropriate WQS tools that must go through public review and require the EPA ’s review

17 Variances in Water Quality Standards, March 15, 1985, Memo from Edwin L. Johnson, Director of the Office of Water Regulations and Standards, to the Regional Water Division Directors and the Advanced Notice of Proposed Rulemaking at 63 FR 36759.***E.O. 12866 Review

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27 of 56 and approval

. 18 This position is supported by the EPA’s longstanding practice regarding variances. 19

States and tribes have expressed that v ariances are useful in a number of circumstances where the state or tribe has demonstrated that the designated use and criterion are not attainable today (or for a limited period of time), but may be attainable in the longer term. Examples include wh en : Attaining th e designated use and criterion is not feasible under the current conditions (e.g.

, attainment of numeric nutrient criteria would result in substantial and widespread social and economic impact) but could be feasible should circumstances change (e.g.

, development of less expensive pollution control technology or a change in local economic conditions ); or
The state does not know whether the designated use and criterion can be attained

, but feasible progress toward attaining the designated u se and criterion can still be made by implementing known controls and tracking environmental improvements (e.g., complex use attainability challenges involving legacy pollutants).
There are a variety of tools available to states and dischargers that can provide time to meet regulatory requirements; however, the most common regulatory tools considered are variances and permit compliance schedules. Which tool is appropriate depends up on the circumstances. Variances can be appropriate to address situations where it is known that the designated use and criterion are unattainable today (or for a limited period of time) but feasible progress could be made toward attaining the designated us e and criterion. A permit compliance schedule , on the other hand, may be appropriate when the

use is attainable, but the permittee needs additional time to modify or upgrade treatment facilities in order to meet its WQBEL such that a schedule and resulting milestones will lead to compliance “as soon as possible” with the WQBEL based on the currently applicable WQS. (See CWA section 507(17) for a definition of “Schedules of compliance” and 40 CFR 122.47 ).

The EPA is proposing and soliciting comment on revis ions to the WQS regulation that will provide more specificity and clearer requirements on the development and use of variances. Such revisions will establish requirements to help improve water quality by allowing states time to work with stakeholders to ad dress any challenges and uncertainties associated with attaining the designated use and the associated criteri on. These revisions will also provide assurance that further feasible progress toward the designated use and criterion will be made during the var iance period

.

18 The EPA addressed variances in its Kansas and Puerto Rico promulgations and part 132 Great Lakes Water Quality Guidance regulations (Published March 23, 1995, http://ecfr.gpoaccess.gov/cgi/t/text/text

idx?c=ecfr&rgn=div5&view=text&node=40:21.0.1.1.19&idno=40 )

19 The EPA’s WQS Handbook, 1994: http://water.epa.gov/scitech/swguidance/waterquality/standards/handbook/chapter05.cfm#section3***E.O. 12866 Review

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28 of 56 The EPA ’s propos ed regulatory provisions for variances at §131.14 address the following key topic areas: (1) applicability, (2) submission requirements, (3) implementing variances, (4) how to renew a variance, and (5) conforming changes to § 131.34 and §131.40. A discussion of today’s proposal and the rationale for each proposed regulatory provision follows.

2. Rationale and the EPA Proposal

.

a. Part 1

— Applicability of Variances

. i. The scope of a variance.
To provide clarity, promote consistency, and avoid conflicting interpretations of WQS variances, the EPA is proposing a new regulatory definition for WQS variance at §131.14 . A w ater quality standards variance (WQS variance) is a time

- limited use and crit eri on for a specified pollutant(s)

, permittee(s) , and/or water body or waterbody segment(s) that reflect the highest attainable condition during the specified time period

. Variances are WQS subject to the EPA review and approval or disapproval and must be consistent with §131.14. As WQS, variances are subject to §131.20(a) and thus must be reviewed on a triennial basis. The EPA is also proposing to specify at §131.14(a)(1) that

a ll other applicable water quality standards not specifically addressed by the variance remain applicable.
Typically, states find variances that apply to a specific pollutant(s) and a discharger to be most useful. If a state believes that the designated use and criterion is unattainable because the discharger cannot meet its WQBEL , the state may grant a discharger

- specific variance so long as the variance is consistent with the CWA and implementing regulation

. Similarly, if a state believes that the designated use and criterion is unattainable as it applies to multiple permittees because they are all experiencing the same challenges in meeting their WQBELs for the same pollutant, a state may streamline its variance process by granting 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 regulation. The EPA recognized the utility of a multiple discharger variance and its distinction from an individual discharger variance 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 75761).

W here a state can demonstrate that the designated use and criterion currently in place for a specific pollutant is not attainable immediately (or for a limited period of time) for an entire water body, the state may adopt a waterbody variance as an alternative to a designated use change for the water body so long as the variance is consistent with the CWA and implementing regulation. In such an instance, the variance applies to the waterbody itself, rather than to any specific source or sources. A waterbody variance provides time for the state to work with both point and nonpoint sources to determine and implement adaptive management approaches on a waterbody/watershed scale to achieve***E.O. 12866 Review

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29 of 56 pollutant reductions and strive toward attaining the water body’s designated use and associated criteria.

States and tribes retain the discretion of whether, when

, and where to adopt variances

. However, consistent with the EPA’s current position, should a state or tribe choose to grant a variance , it is subject to the EPA ’s review and approval or disapproval

—

regardless of the scope of the variance.

The EPA invites comment on its proposal and on any other options it should consider. The EPA also invites comment on the applicability of variances to individual dis chargers, multiple dischargers and to entire water bodies.

ii. An EPA approved variance is only applicable for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act

. The proposed WQS regulation at 40 CFR 131.14(a)(2 ) will specify that where a state adopts a varia nce, the s tate regulations must continue to reflect the designated use and criterion unless the state adopts and the EPA approves a revision to the designated use and criterion as consistent with §131.10 or §131.11

. The int erim requirements specified in the variance apply only for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act for the pollutant(s), permittee(s) and /or waterbody or water body segment (s) covered by the variance

. To date, the EPA ’s available guidance has characterized variances as temporary changes to the designated use; however, such a characterization might imply that the variance replaces the designated use while the variance is in e ffect. This has led to conflicting interpretations of how variances affect the implementation of WQS through CWA programs , such as NPDES permits and the CWA 303(d) requirements.
The CWA and implementing regulation direct the states to add waters that ar e not attaining any applicable WQS to their 303(d) impaired waters list. Specifically, CWA section 303(d)(1)(A) states that “each state shall identify those waters within its boundaries for which the effluent limitations required by section 301(b)(1)(A) an d section 301(b)(1)(B) of this title are not stringent enough to implement any water quality standards applicable to such waters”(emphasis added). Stakeholders have expressed concern that if the interim requirements do not replace the designated use and cr iterion, there will effectively be two WQS applicable for purposes of implementing the CWA section 303(d) program where a variance has been approved. However, the interim requirements do not replace the designated use and criteria for the water body as a whole. Discharger

- specific variances affect the development of WQBELs for the discharger(s) specified in the variance; they do not affect the designated use and criterion that apply to the rest of th e water body. In addition, variances are time

- limited and intended as a tool to facilitate water quality improvements

, not to revise the long term goals for a waterbody. Therefore, any implementation of CWA section 303(d) must continue to be based on the designated uses and criteria for the waterbody rather than the interim requirements

. By requiring state regulations to maintain the designated use and criterion where a variance is approved, the proposed regulation will ensure it is clear that the inter im***E.O. 12866 Review

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30 of 56 requirements associated with a variance do not replace the designated use and criterion. This will, in turn, facilitate a consistent interpretation regarding how variances affect the implementation of WQS through the various CWA programs and how varianc es are to be used to support feasible progress toward attaining the designated use and criteria.

The EPA invites comment on its proposal and on any other options it should consider.

iii. Relationship to technology

- based requirements in CWA sections 301(b) and

306

. The EPA is proposing to add paragraph (a)(3) to 40 CFR 131.14 to s pecify 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 Act.
As with designated use changes, v ariances are not permissible if the WQS can be attained by implementing technology

- based effluent limits required under section 301(b) and 306 of the Act. Section 301(b)(1)(A), (B), and section 306 of the Act provide for technology

- based requirements through effluent limitations guidelines and new source performance standards. These technology

- based requirements represent the minimum level of control that must be imposed in a permit (40 CFR 125.3). Because variances are allowed only where the designated use and criterion are demonstrated to be unattainable during the term of the variance, it would not be appropriate to use a variance if the designated use and criterion can be attained by implementing the tec hnology

- based requirements of the Act

. The EPA invites comment on its proposal and on any other options it should consider.

b. Part 2

— Submission Requirements

. This section describes the relevant information that a state must submit to the EPA when requesting the EPA ’s review and approval of a variance.

i. Components of a Variance

. 1. Identifying information

– pollutant(s), permittee(s ) , location.

The EPA is proposing to add paragraph (b)(1)(i) at 40 CFR 131.14 requiring states to identify, in the variance, the pollutant(s) , the permittee(s), and/or the water body or waterbody segment(s) to which the variance applies.
Today’s proposed regulatory revision will require all variances to specify for what, to whom

, and/or where the variance appl ies, which will help ensure full transparency and public participation on the applicability and scope of the variance . This will alleviate any inconsistencies in the way states have articulated where, when and how the variance applies.

The EPA invites com ment on its proposal and on any other options it should consider.

2. Numeric interim r equirements that apply during a variance

.***E.O. 12866 Review

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31 of 56 The EPA is proposing to add paragraph (b)(1)(ii) at 40 CFR 131.14 to require that a variance must specify (1) the highest attain able interim use and numeric criterion that will apply during the term of the variance or (2) a n interim numeric water quality

- based effluent condition that reflects the highest attainable condition for a specific permittee(s) during the term of the varian ce. Neither (1) nor (2) shall result in any lowering of the currently attained water quality, unless a time

- limited lowering of water quality is necessary during the term of a variance for restoration activities, consistent with §131.14(b)(2)(ii).

A s variances have been implemented to date, some states and tribes have not identified in the variance the interim requirements that shall apply for permitting

purposes during the term of the variance, but rather only established WQBELs representing current effluent quality in the relevant NPDES permits. Specifying the interim requirements to be met during the variance will provide the legal basis for permit writers to develop permit limits that derive from and comply with a WQS, as required by the permittin g regulations at 40 CFR 122.44(d)(vii)(A).

As discussed in Section C, the EPA is proposing a requirement that a states adopt s the highest attainable use and the criteria that protect such a use closest to the 101(a)(2) goals when it has demonstrated that the use specified in CWA section 101(a)(2) or a subcategory of such a use is not attainable based on a UAA. The EPA is proposing that the same requirement apply to variances such that if states can demonstrate that the designated use and criterion are not attainable for the variance period, then the state must adop t a variance reflecting the highest attainable condition during the term of the variance. Such a requirement ensures that feasible progress will be made towards the designated use and criteri on

. Requiring that states establish interim requirements that apply for purposes of CWA section 402 permitting and in issuing certifications under section 401 of the Act

, and that such requirements reflect the highest attainable condition during the variance

, creates a framework for variances to provide states with time to implement adaptive management approaches that drive progress towards meeting the designated use and criterion in a transparent and accountable manner

– a key environmental benefit of a varian ce. This is consistent with previous EPA statements in the EPA’s WQS H andbook and 1998 ANPRM that discuss the EPA’s position regarding the progress to be made during the term of the variance towards attaining the designated use and criterion. 20

A state’s d etermination or identification of the highest attainable interim use need not be complex. A state could simply include the phrase “variance affected” or “variance modified” to the current use description or the state could describe the interim use by ident ifying the parameter included in the variance, such as “pH

- limited” use as a way to provide transparency. To determine the highest attainable numeric criterion, a state shall

20 The EPA’s 1994 WQS Handbook stated that “EPA has approved s tate adopted variances in the past and will continue to do so if ...reasonable progress is being made toward meeting the standards.” The EPA’s 1998 ANPRM indicated that the EPA was considering revising its regulations to include a requirement that before a v ariance may be granted the applicant must include documentation that “...reasonable progress will be made toward meeting the underlying or original standard.” The EPA did not propose a revised regulation at that time.***E.O. 12866 Review

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32 of 56 determine the condition that is both feasible to attain and closest to the protec tion afforded by the designated use and criteria. A state’s determination of the highest attainable condition and numeric interim requirements to apply during a waterbody variance should include consideration and evaluation of pollutant reductions from al l contributing sources . This could include an evaluation of the point source controls, pollutant minimization plans and NPS pollutant reductions that could be achieved in the waterbody.
Rather than identifying the highest attainable interim use and interim numeric criterion, a state may choose to specify in its variance that the applicable interim water quality standard shall be defined by a numeric water quality

- based effluent condition that reflects the highest attainable condition for a specific p ermittee(s) during the term of the variance. Such an approach is reasonable because the resulting instream concentration reflects the highest attainable interim use and interim criterion and

, therefore, the interim numeric effluent condition is acting as a surrogate for the interim use and interim criterion . In situations where a variance addresses a pollutant(s) for which no feasible wastewater treatment option can be identified, a n interim numeric water quality

- based effluent condition reflecting the leve ls currently achievable and a requirement to develop and implement a Pollutant Minimization Program (PMP) 21 together constitute the highest attainable effluent condition.

The EPA invites comment on its proposal and on any other options it should consider.

3. Expiration date

. The EPA is proposing to add paragraph (b)(1)(iii) at 40 CFR 131.14 to require that

a ll variances must include an expiration date and that variances must be as short as possible but expire no later than 10 years after the date the state adopts the variance, consistent with §131.14(b)(2 ).

It is the EPA’s longstanding position that variances are time

- limited; therefore, in order to promote consistency and clarity and to ensure that variances are truly time

limited, the EPA is proposing tha t all variances include an explicit expiration date. Such expiration date must be consistent with the demonstration that a variance is needed for a specified period of time based on one of the factors identified in proposed §131.14(b)(2)

, must be as short as possible, and cannot exceed 10 years. Establishing an expiration date will ensure that the conditions of a variance will be thoroughly re

- evaluated and subject to a public review on a regular and predictable basis to determine (1) whether conditions ha ve 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 cr i t erion and that additional time is needed to make further progress (i.e., whether a variance may be renewed).

21 A PMP is a structured process to redu ce loadings of a pollutant by identifying, preventing and reducing loadings, improving processes and improving wastewater treatment.***E.O. 12866 Review

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33 of 56 The EPA believes that up to 10 years is a reasonable duration for a variance, as it represents two 5

- year NPDES permit terms and provides adequate opportunity to implement measures to make feasible progress. A maximum of 10 years is also s ufficient to reflect changing circumstances, such as the availability of new economic information or affordable treatment technology that may impact whether or not a variance is still warranted.

The EPA invites comment on its proposal and on any other options it should consider.

ii. Demonstrating th e need for a variance

– supporting documentation

. The EPA is proposing to add paragraph (b)(2) at 40 CFR 131.14 to specify that in order to document that a variance is needed, the state must demonstrate that atta ining the designated use and criterion is no t feasible during the term of the variance because of one of the factors listed in §131.10(g) or because actions necessary to facilitate restoration through dam removal or other significant wetland or stream reconfiguration activities preclude attainm ent o f the designated use and criterion while the action s are being implemented.

The regulation at 40 CFR 131.10(g) identifies six factors that may be used to demonstrate , through a UAA, when a use specified in section 101(a)(2) of the Act, or a subcategory of such a use

, is unattainable. The EPA’s current position (and its longstanding practice) is that one of these same §131.10(g) “attainability” factors must be used by states to justify why and for how long a variance is necessary.
In developing this propos ed regulation, the EPA considered other situations where a variance may be appropriate and the EPA concluded that the current § 131.10(g) factors do not accommodate situations where a variance may be necessary to facilitate short

- term efforts to restore the natural physical features (i.e., natural geomorphology ) of a system

. Specifically, this is meant to address the situation when a time

- limited exceedance of a criterion m ight be expected whil e efforts for dam removal or significant we tlands or

stream reconfiguration/restoration efforts are underway to facilitate restor ation of the natural physical features of a water body. The proposed new factor is intended only to cover the length of time necessary to remove the dam or the length of time in which stream restoration activities are actively on

- going. Although such a variance might not directly impact a NPDES permittee, it may be necessary to allow states to certify that any federal license or permit that may result in the discharge of pollutants in state/tribal jurisdiction will still meet their state/tribal WQS, under CWA section 401.
In determining whether or not to grant a variance (and subsequently submit such a variance to EPA for review and approval), the state must consider and evaluate whether the available information supports a conclusion that the designated use and criteria are not feasible to attain during the variance period based on one of the factors listed in §131.14(b)(2) 22

. For example, a factor that has been commonly used to demonstrate the need for a discharger specific variance is § 131.10(g)(6)

, which provides that a state may

22 § 131.14(b)(2) includes a proposed new factor allowing states to demonstrate that a variance is needed while efforts to r emove a dam or significant wetlands or stream reconfiguration/restoration efforts are underway.***E.O. 12866 Review

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34 of 56 remove a designated use if “[c]ontrols more stringent than those required by sections 301(b) and 306 of the Act would result in substantial and widespread economic and social impact.” The Interim Economic Guidance for Water Quality Standards, published March 1995 (see http://water.epa.gov/scitech/swguidance/standards/ec onomics/ ) provides guidance on the types of information that a state should consider evaluating and include in its record to support a variance based on §131.10(g)(6). 23

T he state’s record for granting a variance based on “Human caused conditions or

source s 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” 24 may include, but not be limited to, consideration and evaluation of the following types of available inform ation:

Monitoring data to determine the current ambient conditions.
Data/maps showing the geographical extent of the problem.
Engineering studies and literature of the relevant remediation alternatives and best management practices that could be implemented and documentation that none of the alternatives or practices, if implemented, would result in attaining the designated use and criteria within the variance timeframe.
Description, with supporting information from literature, of the environmenta l impacts associated with the remedial alternatives and an analysis of what could be done in an environmentally safe manner. Such an analysis would facilitate a determination of whether the human caused condition or source of pollution would cause more en vironmental harm to remedy than to leave in place.
Modeling data showing the associated pollutant reductions achievable within the timeframe of the variance compared to reductions needed to achieve the designated use and criteria.

It is the EPA’s position that a variance should be a transparent mechanism t hat allow s a state or discharger a defined period of time to conduct any necessary studies so long as the state demonstrates that §131.14(b)(2) is met and the state retains the applicable criteria for all other pollutant s. The EPA commonly receives questions about whether permit compliance schedules can be used for this purpose. The EPA’s position is that permit compliance schedules may only be used in situations where time is needed for a permittee to com e into compliance with the WQBEL in the permit , not to provide time to address uncertainty regarding the appropriateness or attainability of the WQS.

The EPA invites comment on its proposal and on any other options it should consider.

23 The §131.10(g)(6) analysis would include costs of point source controls and the impacts on the surrounding community.

24 As specified in §131.10(g)(3) and cro ss

- referenced in §131.14(b)(2)(i).***E.O. 12866 Review

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35 of 56 iii. Identifying and documenting the controls for other sources related to the pollutant(s) and location(s) specified in a waterbody variance that could be implemented

. The EPA is proposing to add paragraph (b)(3) at §131.14 to specify that, for a waterbody variance, a state must include an identification and documentation of any cost

effective and reasonable BMPs for nonpoint sources related to the pollutant(s) and location(s) specified in the variance that could be implemented water body wide to make progress towards attaining the designated use and criterion. A s tate must provide public notice and comment for a n y such documentation.
Because other sources of pollution (e.g., nonpoint sources) can have a significant bearing on whether the designat ed use and associated criterion for the entire water bo d y are attainable, it is essential for states to consider and provide information to the public regarding the impact that controlling other sources through application of cost

- effective and reasonable BMPs c ould have on water quality before granting a waterbody variance. Doing so could inform the state’s assessment of what interim actions may be needed to make feasible progress towards attaining the designated use and criterion related to the pollutant( s) and location(s) specified in the variance, as well as what the highest attainable designated use and criterion may be and by when they might be attained.
A similar requirement is set out in the WQS regulation at §131.10(d) and (h)(2) that specify that a use is deemed attainable and cannot be removed if it can be achieved by the imposition of

/implementing effluent limits required under sections 301(b) and 306 of the Act and cost

- effective and reasonable best management practices for nonpoint source

contro l. The EPA’s current position is that before removing a designated use states must first evaluate the impact that point and nonpoint source controls might have on water quality. When conducting such an evaluation, states should consider the impacts from im plementing any 25 cost

- effective and reasonable BMPs for nonpoint source controls water body wide. In situations where it can be demonstrated that a use is precluded by

non

- anthropogenic stressors (e.g., high levels of a naturally occurring metal in a surfac e
water body), the EPA does not expect states to evaluate nonpoint source controls, as controlling nonpoint sources would not lead to attainment.

The EPA’s proposed requirement for waterbody variances differs from those applicable to designated use becaus e 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 to demonstrate that the designated use and criteria are unattainable even if cost effective and reasonable 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 varianc e. Instead, a requirement to identify and document cost

- effective and reasonable BMPs for other sources will assist states 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.

25 i.e., not just those that may already be required by state regulations.***E.O. 12866 Review

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36 of 56 The EPA invites comment on its proposal and on any other options it should consider.

c. Part 3

— Implementing Variances

. The EPA is proposing to add paragraph (c) at 40 CFR 131.14 specifying that variances serve as the basis of a WQBEL included in a NPDES permit for the period the variance is in effect

. Any activities required to implement the variance shall be included as conditions of the NPDES permit for the permittee (s) subject to the variance.

When variances are adopted and approved, they serve as the basis of a WQBEL included in a NPDES permit during the variance period . However, any specific actions that will be necessary for the discharger to implement the variance and make such feasible progress are typica lly at the discretion of the permitting authority. Therefore, the EPA is proposing regulatory language similar to §131.34(c) and §131.40 (c) linking the requirements of variances to the NPDES permitting process, specifically 40 CFR 122.44(d)(1)(viii)(A) th at requires the permitting authority to establish limitations that derive from and comply with the applicable WQS. The EPA believes the proposed regulatory requirement will ensure proper accountability when implementing variances to accomplish the goals of the Act. The proposed provision reflects the provisions in the “Water Quality Guidance for the Great Lakes System” ( §132, Appendix F, Procedure 2).

The EPA invites comment on its proposal and on any other options it should consider.

d. Part 4

— How to Renew a Variance

. The EPA is proposing to add paragraph (d) at 40 CFR 131.14 to specify that to obtain the EPA ’s approval of a variance renewal, the state must meet the requirements of §131.14 and provide appropriate documentation of the steps taken to meet the requirements of the previous variance. Renewal of the variance may be disapproved if the applicant did not comply with the conditions of the original variance, or otherwise does not meet the requirements of this section. For renewal of a waterbody varianc e, the state

must also include documentation of whether and to what extent cost

- effective and reasonable BMPs have been implemented to address the pollutant(s) subject to the variance and the water quality progress achieved during the variance period.

Al though the EPA is proposing to establish a maximum single variance term of no more than 10 years, it recognizes that there may be circumstances in which a renewal of a variance is both necessary and appropriate. The EPA’s 1998 ANPRM articulates the EPA’s current position that variances are WQS and should be continued or extended only where the initial conditions for granting the variance still apply

. 26 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 option for the state to consider.

The EPA is providing an additional requirement for waterbody variances becau se both point and nonpoint sources are contributing to the water quality challenges

. It is

26 63 FR 36759***E.O. 12866 Review

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37 of 56 essential that during the term of the initial v ariance the state works with the contributing sources to make progress toward the designated use and criterion

. Today ’s proposed regulation explicitly provides that the EPA may disapprove a renewal of the variance if the applicant did not comply with the conditions of the original variance, or otherwise does not meet the requirements of §131.14

. The EPA is specifically p roviding itself the flexibility to determine whether to disapprove a variance because it recognizes that circumstances out of the permittee or state’s control may impact the ability to meet the specific conditions and requirements of the variance, even if all required actions to implement the variance were completed. If the EPA disapproves the variance renewal, then the state must implement its water quality program to meet the applicable designated use and associated criteria or conduct a UAA to justify a revision to the designated use and associated criteria.

The EPA invites comment on its proposal and on any other options it should consider.

e. Part 5

— Variances for the EPA

- Promulgated Designated Uses

. The EPA is proposing to delete detailed variance procedures promulgated by the EPA in 40 CFR 131.34(c) and 131.40(c) and replace them with language specifying that the appropriate Regional Administrators may grant variances from the EPA

- promulgated regulations for Kansas

, and Puerto Rico consistent with today’s proposed requirements at §131.14.

The EPA promulgated variance procedures that the Regional Administrator could use to grant variances from the specific WQS the EPA promulgated for Kansas and Puerto Ric o in §131.34 and 131.40

. T oday’s proposal reflects the most efficient and transparent approach t o ensure that variances granted by the Regional Administrator for the federally promulgated standards in Kansas and Puerto Rico are required to meet the same

re quirements as the rest of the United States once the EPA finalizes the nationally applicable revisions to 40 CFR part 131.

The EPA invites comment on its proposal and on any other options it should consider

. G. Provisions Authorizing the Use of Permit

- Based Compliance Schedules

. 1. The EPA Proposal

. The EPA is proposing to add a new regulatory provision at §131.15 to codify the decision of the EPA Administrator in In t he Matter of Star

- Kist Caribe, Inc. (1990 WL 324290 (EPA), 1990 EPA App. LEXIS 45, 3 EAD 172 (April 16, 1990))

. This provision would clarify that a permitting authority may only issue compliance schedules for WQBEL s in NPDES permits if the state has authorized issuance of such compliance schedules pursuant to state law in its water quality standar ds or implementing regulations. Any such compliance schedule authorizing provision is a WQS subject to the EPA ’s review and approval. The proposed provision would also clarify that individual compliance schedules issued pursuant to such authorizing pro vis ions are not themselves WQS but must be consistent with CWA section 502(17), the s tate’s EPA

- approved***E.O. 12866 Review

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38 of 56 compliance schedule authorizing provision

, and the requirements of 40 CFR § §122.2 and 122.47

. 2. Rationale for Revision

. CWA section 502(17) defines “schedu le of compliance” to mean “a schedule of remedial measures including an enforceable sequence of actions or operations leading to compliance with an effluent limitation, other limitation, prohibition, or standard.” The EPA’s NPDES regulation at 40 CFR 1 22. 2 define s a schedule of compliance as “a schedule of remedial measures included in a ‘permit,’ including an enforceable sequence of interim requirements...leading to compliance with the CWA and regulations.” S ection 301(b)(1)(C) of the Act specifie s that th ere shall be achieved “... not later than July 1, 1977, any more stringent limitation, including those necessary to meet WQS , treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by s ection 1370 of this title) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter. ”

In In the Matter of Star

- Kist Caribe, Inc. , the EPA Administrator (in an appeal of an
EPA

- issued NPDES permit) interpreted CWA 301(b)(1)(C) to mean that ( 1) after July 1, 1977, permits must require immediate compliance with (i.e., may not contain compliance schedules for) effluent limitations based on WQS adopted before July 1, 1977, and ( 2 ) permit compliance schedules are allowed for effluent limitations based on WQS adopted after that date only if the s tate has clearly indicated in its WQS or implementing regulations that it intends to allow them (i.e., the s tate’s WQS or implementing

regu lations must contain a provision authorizing the use of permit

- based compliance schedules). The latter requirement ensures that a permit including such a compliance schedule still meets WQS pursuant to CWA section 301(b)(1)(C)

. The EPA’s current WQS regul ation is silent regarding compliance schedules and compliance schedule authorizing provisions. As a result, despite Star

- Kist

, the EPA is concerned that state/tribal permitting authorities may be including compliance schedules in permits, thus delaying co mpliance with a WQS

- based WQBEL, even though the state may not have authorized the use of such compliance schedules in its WQS or implementing regulations.

Consistent with the Star

- K ist decision, a s tate or tribe has the discretion to include a compliance schedule authorizing provision in its WQS or implementing regulations. Such a provision may also be codified in a state or tribe’s NPDES regulations. However, regardless of where it appears, a compliance schedule authorizing provision adopted pursuant to state law is considered a WQS subject to the EPA ’s approval under CWA section 303(c)(3). Although a compliance schedule authorizing provision does not describe the desired condition or level of protection of the water body in exactly the same way as a designated use or water quality criteria, it significantly affect s the way those designated uses and water quality criteria are implemented in permits. Compliance schedule authorizing provisions allow the permitting autho rity to provide a permittee additional time to comply with a WQBEL that derives from and complies with the applicable WQS beyond the date of permit issuance, which is the date upon which a permittee is otherwise required to comply with its WQBEL. Thus, a c ompliance schedule***E.O. 12866 Review

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39 of 56 authorizing provision allows the state to delay when the applicable WQS will be met. In addition, as articulated in the Star

- Kist decision, states may only allow this delay if the applicable WQS that authorizes the compliance schedule w as adopted, revised, or newly interpreted after July 1, 1977.

When states and tribes authorize the use of compliance schedules in their WQS or implementing regulations, they ensure that WQBELs subject to appropriately issued compliance schedules are “fully consistent with, and therefore ‘meet,’ the requirements of the State or tribal water quality standard

, as contemplated by [CWA] 301(b)(1)(C).”
Star

- Kist at 175. Once approved pursuant to CWA 303(c)(3), the compliance schedule authorizing provision itself becomes part of the applicable WQS; therefore, any delay in compliance with a WQBEL pursuant to that permit compliance schedule would be consistent with state/tribal WQS . A compliance schedule , as defined by section 502(17) of the Act, that is granted pu rsuant to a state’s approved compliance schedule authorizing provision is , on the other hand, a permitting tool and is not itself considered a WQS. The EPA has implemented section 502(17) of the Act in the context of the NPDES permitting program at 40 CFR 122.2 and 122.47 . Any compliance schedule, itself, must be consistent with these provisions.

The EPA invites comments on the proposed addition of §131.15

. The EPA also invites comment on any other options it should consider

H. Other Changes

. 1. The EPA Propo sal

. In the course of developing today’s proposal, the EPA identified several spelling mistakes, grammatical errors and/or inconsistencies , and incorrect citations in 40 CFR

p art 131, as well as the need for various conforming edits (e.g., provisions that need to be

re

- numbered or re

- lettered based on a regulatory addition or deletion outlined in today’s proposal)

. The EPA is proposing the following changes:

§131.2: Change “...necessary to protect the uses” to “... that protect the designated uses” (consistency with terminology in §131.11).
§131.3(h): Change “technology

- bases” to “technology

- based” (spelling mistake). §131.3(j): Delete “the Trust Territory of the Pacific Islands.” 27 Insert the word “the” in front of “water quality standards program” (grammatical c larification).
§131.5( a) ( 1 ) : Change “...has adopted water uses” to “...has adopted designated water uses” (grammatical clarification).
§131.5(a) (2): Insert “...based on sound scientific rationale” (consistency with language in §131.11). §131.10(j): Insert “and §131.10(g)” before the word “whenever” (consistency with proposed revisions to §131.10(g)).

27 “The Trust Territory of the Pacific Islands” became the “Commonwealth of the Northern Mariana Islands” in 1986 via Presidential Pro clamation. See http://www.presidency.ucsb.edu/ws/index.php?pid=36688#axzz1XrK7AXLN***E.O. 12866 Review

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40 of 56 §131.10(j)(2): Insert “, to remove a subcategory of such a use,” after the first instance of “...specified in section 101(a)(2) of the Act” (legal clarification that a UAA is also required when removing a subcategory of a use specified in section 101(a)(2) of the Act without adopting another use in its place).
§131.11(a)(2): Delete “ Toxic p ollutants ” to be consistent with the format of §131.11(a)(1) and to prevent the erroneous interpretation that the regulation only requires states to adopt criteria for toxic pollutants

. Change reference from “40 CFR part 35” to “40 CFR part 130” to reflect the correct citation.
§131.11(b): Italicize “Form of criteria” (consistency wi th formatting in §131.11(a)) and change “ States should” to “ States shall” (legal clarification that criteria must be narrative or numeric ).
§131.12(a)(2): Insert “the protection and” into the phrase “propagation of fish, shellfish and wildlife” to be consistent with CWA 101(a)(2) and the rest of the WQS regulation at part 131

. Change “assure” to “ensure” (grammatical clarification).
§131.20(b): Change “hold a public hearing” to “hold public hearings” and add “or revising” after “reviewing” (consistency with CWA 303(c) and §131.20(a)). Insert “EPA’s” in front of “public participation regulation” (clarification that 40 CFR part 25 is the EPA’s reg ulation). Delete the phrase “EPA’s water quality management regulation (40 CFR 130.3(b)(6) ) ” (n onexistent c itation )

. The EPA invites comments on the proposed amendments described above

. The EPA also invites comment on any other options it should consider.

IV. When Does This Action Take Effect?

Comments on this proposed rulemaking must be received on or before [INSERT DATE 60 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]

. S hould this proposed rulemaking be finalized, the effective date will likely be 60 days after publication of the final rule i n the Federal Register

. For judicial review purposes, the effective date will likely be 60 days after publi cation of the final rule in the Federal Register.

The EPA is proposing to require states and tribes to meet the requirements of the final rule on the effective date of the final rule

. The EPA’s expectation is that, where a new or revised requirement necessitates a change to state or tribal WQS, such changes will occur within the next triennial review that the state initiates after the EPA ’s publication of the final rule

. The EPA invites comments on the proposed effective dates

. The EPA also invites comment on any other options it should consider.

V. Economic Impacts on State and Tribal WQS Programs

. The EPA evaluated th e potential incremental administrative burdens and costs that may be associated with today’s proposal. Incremental burden and costs are those above and beyond the burden and costs associated with implementation of current WQS regulations. Because today’s proposal will not establish any requirements directly***E.O. 12866 Review

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41 of 56 applicable to regulated entities, the focus of the EPA’s economic analysis is to estimate the potential administrative burden and costs to state, tribal, and territorial governments, and the EPA. The EP A’s economic analysis is documented in Economic Analysis for the Water Quality Standards Regulatory Clarifications (Proposed Rule) and can be found in the docket for today’s proposal.
The EPA assessed the potential incremental burden and costs associated with today’s proposed revisions by first identifying those elements of the proposed revisions that may be associated with incremental burdens and costs. The EPA estimated the incremental number of labor hours potentially required by states and tribes to comply with those elements of the proposed regulations, and then estimated the costs associated with those additional labor hours. The EPA identified four areas where incremental burdens and costs may be anticipated: (1) one

- time burden and costs associa ted with state and tribal rulemaking activities because states and tribes may need to adopt new or revised provisions into their WQS, (2) annual costs associated with designating uses because identifying the highest attainable use when performing a UAA may require additional labor hours, (3) one

- time and annual costs associated with antidegradation implementation including developing or revising antidegradation implementation procedures and reviewing a greater number and more complex antidegradation request s, and (4) annual costs associated with additional development and documentation of variance requests. Incremental burden and costs were estimated for all 50 states, the District of Columbia, 5 territories, and the 36 Indian tribes authorized to administe r a WQS program with WQS approved by the EPA.
The incremental administrative burdens and costs to state and tribal governments potentially associated with today’s proposal are summarized in the following table:

Summary of In cremental Administrative Burden and Costs to State and Tribal Governments Associated with Today’s Proposal

Provision One

- time Annual

Burden (hours) Cost

(2010$ millions) Burden

(hours/year) Cost (2010$

millions/year) Rulemaking Activities 9,200

- 46,000 $0.38

- $1.89

-- -- Designated Uses

-- -- 240

- 1,200 $0.01

- $0.05 Antidegradation 32,400

– 64,800 $1.33

- $2.66 86,000

- 129,000 $3.49

- $5.26
Variances

-- -- 4,620

- 5,310 $0.19

- $0.21
National Total 41,600

- 110,800 $1.71

- $4.54 90,860

- 135,510 $3.69

- $5.52

‘

-- ‘ = not applicable

In addition to the potential burden and costs to state and tribal governments, today’s proposal may be associated with incremental burden and costs to the EPA. Estimates of the incremental administrative burden and costs to the EPA are summarized in the following table:***E.O. 12866 Review

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42 of 56 Summary of Potential Incremental Administrative Burden and Costs to the EPA

Associated with Today’s Propos al
One

- time Annual
Costs to States and Tribes (2010$ million) Costs to the

Agency 1 (2010$ million) Burden Costs to States and Tribes (2010$ million per year) Costs to the

Agency 1 (2010$ million per year) Burden

Hours 2 FTEs 3 Hours

per year 2 FTEs

per year 3

$1.71

- $4.54 $0.34

-

$0.91 4,570

-

12,190 2.2

- 5.86 $3.69

- $5.52 $0.74

- $1.11 9,890

- 14,820 4.75

-

7.13 1. Assuming that the incremental costs to the EPA are equal to 20% of the costs to states and tribes. 2. Total costs to the Agency divided by hourly wage rate ($74.56 per hour). 3. Burden hours to the Agency divided by hours worked by full

- time equivalent (FTE) employees per year (2,080 hours per year).

A summary of the combined estimated costs t o all potentially affect states, tribes, and the EPA are summarized in the following table

. Summary of Potential Incremental Administrative Burdens and Costs Associated with the

Proposed Rule to States, Tribes, and the EPA

Entities One

- time Annual

Burden (hours) Cost

(2010$ millions) Burden

(hours/year) Cost (2010

$millions/year)

States and tribes 41,600

- 110,800 $1.71

- $4.54 90,860

- 135,510 $3.69

- $5.52 Agency 4,570

- 12,190 $0.34

- $0.91 9,890

- 14,820 $0.74

- $1.11
Total 46,170

- 122,990 $2.05

- $5.45 100,750

- 150,330 $4.42

- $6.63

To estimate the total annual cost of today’s proposal including both one

- time costs and recurring costs, the EPA annualized the one

- time costs over a period of 20 years. Using a 20

- year annu a lization period and a discount rate of three percent

, total annual costs for today’s proposal are estimated to range from $ 4.56 million to $ 7.00 millio n per year. In addition to estimating potential burden and costs, the EPA also evaluated the potential benefits associated with today’s proposal. States, tribes, stakeholders, and the public will benefit from toda y’s clarifications of the WQS regulations by ensuring better utilization of available WQS tools that allow states and tribes the flexibility to implement their WQS in an efficient manner while providing transparency and open public participation. Although associated with potential administrative burden and costs in some areas, today’s proposal has the potential to partially offset these costs by reducing regulatory uncertainty and consequently increasing overall program efficiency

. Furthermore, more effici ent and effective implementation of state and tribal WQS has the potential to provide a variety of economic benefits associated with cleaner water including the availability of clean, safe, and affordable drinking water, water of adequate quality for agric ultural and industrial use, and water quality that supports the commercial fishing industry and higher property values. Nonmarket benefits of today’s proposal***E.O. 12866 Review

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43 of 56 include the protection and improvement of public health and greater recreational opportunities. Complete details on how the EPA evaluated burden, costs, and benefits are documented in Economic Analysis for the Water Quality Standards Regulatory Clarifications (Proposed Rule) included in the docket for today’s proposal.

The EPA invites comments on its economic analysis. Specifically, the EPA invites comments on the accuracy of the burden and costs estimates presented in this proposed rulemaking, and any actual state data that may help to refine these estimates.

VI. Statutory and Executive Order Reviews

. A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

. Under Executive Order (E

. O

. ) 12866 (58 FR 51735), this action is a “ significant regulatory action ” that raises novel legal or polic y issues, arising out of a legal mandate

. Accordingly, the EPA submitted this action to the Office of Management and Budget (OMB) for review under E

. O

. s 12866 and 13563 (76 FR 3821) and any changes made in response to OMB recommendations have been documented in the docket for this action.
In addition, EPA prepared an analysis of the potential costs and benefits associated with this action

. This analysis is contained in “ Economic Analysis for the Proposed Revisions to Water Quality Standards Regulato ry Revisions

. ” A copy of the analysis is available in the docket for this action and the analysis is briefly summarized in Section V of the preamble.

B. Paperwork Reduction Act

. The information collection requirements in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document prepared by EPA has been assigned EPA ICR number 2449.01

. EPA is proposing the WQS Regul atory Clarifications Rule to improve the regulation’s effectiveness in helping restore and maintain the chemical, physical, and biological integrity of the nation’s waters. The core of the current regulation has been in place since 1983; since then, a numb er of issues have been raised by stakeholders or identified by EPA in the implementation process that will benefit from clarification and greater specificity. The proposed rule addresses the following key program areas: (1) Administrator’s determinations t hat new or revised WQS are necessary, (2) designated uses, (3) triennial reviews, (4) antidegradation, (5) variances to WQS, and (6) compliance schedule authorizing provisions. This mandatory information collection will ensure EPA has the needed informatio n to review standards and make approvals or disapprovals in accordance with provisions in the proposed Water Quality Standards Regulatory Clarifications Rule.
Under the Clean Water Act (CWA), EPA is responsible for reviewing and approving or disapproving n ew and revised WQS submitted by states and tribes. EPA will use the information required by this proposed rule to carry out its responsibility under CWA. In reviewing state and tribal standards submissions, EPA considers whether submissions are consistent with the WQS regulation at part 131. The WQS Regulatory Clarifications Rule***E.O. 12866 Review

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44 of 56 will add new requirements to part 131. If the information collection activities in the WQS Regulatory Clarifications Rule are not carried out, specific improvements in the implemen tation of the WQS program will not take place. In some cases, implementation and control steps such as total maximum daily loads and National Pollutant Discharge Elimination System permits may not be as protective as necessary under the CWA.

Burden is defi ned at 5 CFR 1320.3(b). EPA expects that t he proposed rule will lead to incremental burden hours and labor costs in the following areas: rulemaking activities

, designated uses, antidegradation, and variances to WQS. EPA estimates the cost of labor from dat a on state government hourly wage rates (data are not available for tribes). The labor categories chosen as applicable to WQS regulatory revision efforts are Environmental Scientist, Department Manager, Environmental Engineer, and Economist. Given the 2009 labor rates for these categories, inflated to October 2010 dollars using the Bureau of Labor Statistics (BLS) Employment Cost Index for professional and related state and local government workers (113.3/111.1 = 1.02), and accounting for benefits using the BLS Employer Cost for Employee Compensation for state and local professional government workers (31.7% of total compensation is attributable to benefits), EPA calculated an a verage hourly wage rate of $41.

EPA estimates the incremental number of labor hou rs using historical information and data, and the historical knowledge and best professional judgment of EPA personnel with experience administering the WQS program. A total of 92 governmental entities are potentially affected by the proposed rule : 50 states, the District of Columbia, 6 territories, and 36 tribes that have authority to administer WQS programs

. Rulemaking activities and proposed antidegradation provisions that require affected entities to develop or revis e antidegradation implementat ion methods result in one

- time (nonrecurring) burden and

costs . Note that these one

- time activities will occur over an initial three

- year period

. The proposed rule will also require affected entities to undertake the following activities each year: conduct use attainability analyses to determine the highest attainable use, r eview

a lternative a nalyses in a ntidegradation r equests

, review additional antidegradation requests for high quality waters, comply with new submission requirements for variances

, and rev iew additional variance renewal applications. Given EPA’s estimates of t he number and frequency of labor hours associated with each of the proposed provisions, the total one

- time incremental burden (during each of the first three years) associated with the proposed rule ranges from 13,870 hours to 36,930 hours, while the annual incremental burden ranges from 90,860 hours to 135,510 hours. Given an hourly wage rate of $41, these labor hours lead to total one

- time costs (incurred during each of the first thre e years) of approximately $0.57 to $1.51 million and annual costs of $3.69 to $5.52
million. The se incremental burden and costs are associated with a total of 31 one

- time responses per year during the initial three

- year period for rulemaking activities. In addition, the number of annual responses is 1,306 responses. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CF R are listed in 40 CFR part 9.
To comment on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, EPA***E.O. 12866 Review

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45 of 56 has established a public docket f or this rule, which includes this ICR, under Docket ID number EPA

- HQ

- OW

- 2010

- 0606. Submit any comments related to the ICR to EPA and OMB. See ADDRESSES section at the beginning of this notice for where to submit comments to EPA. Send comments to OMB at the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after [Insert date of publication in the Federal Register.] , a comment to OMB is best assured of having its full effect if OMB receives it by [Insert date 30 days after publication in the Federal Register.]

. The final rule will respond to any OMB or public comments on the i nformation collection requirements contained in this proposal.

C. Regulatory Flexibility Act

. The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities

. Small entities include small businesses, small organiz ations, and small governmental jurisdictions.
For purposes of assessing the impacts of today ’ s rule on small entities, small entity is defined as (1) a small business as defined by the Small Business Administration’s (SBA) regulations at 13 CFR 121.201; (2 ) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not

- for

- profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of today’s proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities

. This proposed r ule will not impose any requirements on small entities

. State and tribal governments responsible for administering or overseeing water quality programs may be directly affected by this rulemaking, as states and tribes may need to consider and implement new provisions, or revise existing provisions, in their WQS. Small entities, such as small businesses or small governmental jurisdictions, are not directly regulated by this rule. The EPA continue s to be interested in the potential impacts of the propos ed rule on small entities and welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

. This rule does not contain a Federal mandate that may result in expenditures of $100 million or more for s tate, local, and tribal governments, i n the aggregate, or the private sector in any one year. The EPA estimates total annual costs to states and tribes to range from $ 3

, 690 ,000 to $ 5

, 520 ,000

. Thus , this rule is not subject to the requirements of sections 202 or 205 of the Unfunded Mandates Reform Act of 1995 ( UMRA )

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46 of 56 This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

E. Executive Order 13132 (Feder alism)

. Under section 6(b) of E

. O

. 13132, the EPA may not issue an action that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by s tate and local governments, or the EPA consults with s tate and local officials early in the process of developing the proposed action

. In addition, under section 6(c) of E

. O

. 13132, the EPA may not issue an act ion that has federalism implications and that preempts s tate law, unless the Agency consults with

s tate and local officials early in the process of developing the proposed action.

The EPA has concluded that the action may have federalism implications

. The EPA is proposing changes to provide clarity and transparency in the WQS regulation that may require s tate and local officials to reevaluate or revise their standards

. However, it will not impose substantial direct compliance costs on s tate or local governm ents, nor will it preempt s tate law. Thus, the requirements of sections 6(b) and 6(c) of the E

. O

. do not apply to this action.

Consistent with the EPA’s policy, the EPA nonetheless consulted with s tate and local officials early in the process of developing the proposed action to allow them to provide meaningful and timely input into its development

. In August and September 2010, the
EPA consulted with representatives from s tates and intergovernmenta l associations to hear their views on the proposed regulatory changes

. Participants expressed concern that the proposed changes may impose a resource burden on state and local governments, as well as infring e on s tates’ flexibility in the areas of antidegr a dation and designated uses

. The EPA’s view is that such changes would codify the EPA ’s current practice and provide clarity of expectations to state and local regulators

. Participants urged the EPA to ensure that states with satisfactory regulations in th ese areas are not unduly burdened by the proposed changes.
Keeping with the spirit of E

. O

. 13132, and consistent with the EPA’s policy to promote communications between the EPA and s tate and local governments, the EPA specifically solicits comment on this proposed action from s tate and local officials.

F. Executive Order 13175

. Subject to the E

. O

. 13175 (65 FR 67249)

, the EPA may not issue a regulation that has tribal implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the f ederal government provides the funds necessary to pay the direct compliance costs incurred by triba l governments, or the EPA consults with tribal officials early in the process of developing the proposed regulation and develops a tribal summary impact statement.

The EPA has concluded that this action may have tribal implications

. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt t ribal law

. To date, 4 6 Indian tribes have been approved for treatment in the

same manner as a state (TAS) for CWA sections 303 and 401

. Of the 4 6 tribes , 36***E.O. 12866 Review

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47 of 56 have federally approved WQS in their respective jurisdictions. All of these authorized tribes are subject to this proposed rule

. However, this rule m ight impact all tribes because standards may apply to waters adjacent to the tribal waters

. The EPA co nsulted with tribal officials early in the process of developing this regulation to allow them to provide meaningful and timely input into its development

. In August 2010, the EPA held a tribes

only consultation session to hear their views and answer quest ions of all interested tribes on the targeted areas the EPA is considering for regulatory revision

. Tribes expressed the need for additional guidance and assistance in implementing the proposed rulemaking, specifically for development of antidegr a dation im plementation methods and determination of the highest attainable use

. The EPA has considered the burden to states and tribes in developing the proposed option and

, when possible

, has chosen the option providing sufficient direction while allowing state or tribal resources to be spent addressing other aspects of their WQS programs. The EPA also intends to release updated guidance in a new edition of the WQS Handbook

. The EPA specifically solicits additional comment on this proposed action from tribal officia ls.

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks

. The EPA interprets E

. O

. 13045 (62 FR 19885) as applying only to those regulatory actions that concern health or safety risks, such that the analysis requir ed under section 5

- 501 of the E

. O

. has the potential to influence the regulation

. This action is not subject
to E

. O

. 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

. This action is not a “significant energy action” as defined in E

. O

. 13211 (66 FR 28355), because it is not likely to have a significant adverse effect on the supply, dis tribution, or use of energy.

I. National Technology Transfer and Advancement Act

. Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Pub

. L

. 104

– 113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary

consensus st andards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies

. NTTAA directs the EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards. Therefore, the EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low

- Income Populations

. E

. O

. 12898 (59 FR 7629) establishes federal executive policy on environmental justice

. Its main provision directs federal agencies, to the greatest extent practicable and***E.O. 12866 Review

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48 of 56 permitted by law, to make environmental justice part of their mission by identifyin g and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low

- income populations in the United States.

The EPA has determined that thi s proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low

- income populations because it does not affect the level of protection provided to human health or the environment

. This proposed rule making does not directly establish water quality standards for a state or tribe

. In addition, this proposed rulemaking is national in scope, and therefore is not s pecific to a particular geographic area (s).
List of Subjects in 40 CFR part 131

. Environmental protection, water quality standards, regulatory revision , designated uses, antidegradation, variances, triennial reviews, water quality criteria, compliance schedule authorizing provisions.

________________________ Dated: [Insert Date]

____ _________________________ Lisa P. Jackson, Administrator.

For the reasons s tated in the preamble, the EPA proposes to amend 40 CFR part 131 as follows: [ The text below shows only the provisions affected by the revisions proposed in this rule and how they would read after publication of the final rule. It does not represent the entirety of the Part 131 regulations nor does it indicate that all of the language below is new. ]

PART 131

— WATER QUALITY STANDARDS

1. The authority citation for part 131 continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

Subpart A

- [Amended]

§131.2

- [Amended]

2. Amend § 131.2 by revis ing the first sentence to read as follows:

§ 131.2 P urpose
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49 of 56 A water quality standard defines the water quality goals of a water body

, or portion thereof, by designating the use or uses to be made of the water and by setting criteria that protect the designated uses.

§131.3

- [Amended]

3. Amend § 131.3 by revis ing paragraphs (h) and (j), and adding paragraph (m), to read as follows:

§131.3 Definitions

. * * * * * (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. * * * * * (j) States include: The 50 States , the District of Columbia, Guam, the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the Commo nwealth of the Northern Mariana Islands, and Indian Tribes that EPA determines to be eligible for purposes of the water quality standards program. * * * * * (m) Highest attainable use and criteria is the aquatic life, wildlife, and/or recreation use and th e criteria that protect such a use that are found to be both closest to the uses specified in section 101(a)(2) of the Act and attainable, as determined using best available data and information through an appropriate use attainability analysis defined in §131.3(g).

§131.5

- [Amended]

4. Amend § 131.5 as follows:

a. Revise paragraphs (a)(1) and (a)(2):

§131.5 EPA Authority

. (a) * * * (1) Whether the State has adopted designated water uses which are consistent with the requirements of the Clean Water Act; (2) Whether the State has adopted criteria that protect the designated water uses based on sound scientific rationale ; * * * * *

b. Add paragraph (a)(3) and re

- designate paragraphs (a)(3) through (a)(5) as (a)(4) through (a)(6): * * * * * (3) Whether the State has adopted an antidegradation policy and implementation methods consistent with §131.12;***E.O. 12866 Review

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50 of 56 (4) Whether the State has followed its legal procedures for revising or adopting standards;
( 5 ) Whether the State standards which do not include the uses specif ied in section 101(a)(2) of the Act are based upon appropriate technical and scientific data and analyses, and ( 6 ) Whether the State submission meets the requirements included in §131.6 of this part and, for Great Lakes States or Great Lakes Tribes (as def ined in 40 CFR 132.2) to conform to section 118 of the Act, the requirements of 40 CFR part 132. (b) If EPA determines that the State's or Tribe's water quality standards are consistent with the factors listed in paragraphs (a)(1) through (a)( 6 ) of this se ction, EPA approves the standards. EPA must disapprove the State's or Tribe's water quality standards and promulgate Federal standards under section 303(c)(4), and for Great Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or Tribal adopted standards are not consistent with the factors listed in paragraphs (a)(1) through (a)( 6 ) of this section. EPA may also promulgate a new or revised standard when necessary to meet the requirements of the Act.

* * * * * 5. Amend § 131.6 by re vising paragraph (d) to read a s follows:

§131.6 Minimum requirements for water quality standards submission.

* * * * * (d) An antidegradation policy and implementation methods consistent with §131.12.

* * * * *

Subpart B

- [Amended]

§131.10

- [Amended]

6. Amend § 131.10 by revising paragraphs (g) and (j) and removing paragraph (k) as follows:

§131.10 Designation of u ses. * * * * * (g) States may either (1) remove a designated use that is specified in section 101(a)(2) of the Act or a sub

- category of such a use, that is not an existing use, as defined in §131.3

, or (2) adopt sub

- categories of a use specified in section 101(a)(2) of the Act that require less stringent criteria

, if the State can demonstrate that attaining the designated use is not feasible through a use attainability analysis as described in §131.3(g). If the state revises its water quality standards based on such a demonstration, the state shall adopt the highest attainable use and the criteria that protect such a use. States conducting

a use attainability analysis pursuant to §131.10(j) can demonstrate that attaining the designated use is not feasible because: * * * * ****E.O. 12866 Review

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51 of 56 (j) A S tate must conduct a use attainability analysis as described in §131.3(g)

, and §131.10(g)

, whenever: * * * * * (2 ) The State wishes to remove a designated use that is specified in section 101(a)(2) of the Act, to remove a subcategory of such a use, or to adopt subcategories of uses specified in section 101(a)(2) of the Act which require less stringent criteria.

* * * * * (k) [deleted]

§131.11

- [Amended]

7. Amend § 131.11 by revising paragraphs (a)(2) and (b) to read as follows:

(a) * * * * * * * * (2)States must review water quality data and information on discharges to identify specific water bodies where toxic pollutants may be adversely affecting water quality or the attainment of the designated water use or where the levels of toxic pollutants are at a level to warrant concern and must adopt criteria for such toxic pollutants applicable to the water body suffi cient to protect the designated use

. Where a State adopts narrative criteria for toxic pollutants to protect designated uses, the State must provide information identifying the method by which the State intends to regulate point source discharges of toxic pollutants on water quality limited segments based on such narrative criteria

. Such information may be included as part of the standards or may be included in documents generated by the State in response to the Water Quality Planning and Management Regulat ions (40 CFR part 130). (b) Form of criteria: In establishing criteria, States shall:

* * * * * §131.12

- [Amended]

8. Amend § 131.12 by revising the section heading and paragraphs (a) and (a)(2) and adding paragraph (b) a s follows:

§ 131.12 Antidegradation Policy and Implementation Methods

. (a) The State shall develop and adopt a statewide antidegradation policy. The antidegradation policy shall, at a minimum, be consistent with the following: (1) * * * (2) Where the quality of the waters exceed levels nece ssary to support the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and pu blic participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lo wer water quality, the State shall ensure***E.O. 12866 Review

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52 of 56 water quality adequate to protect existing uses fully. Further, the state shall ensure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all c ost

- effective and reasonable best management practices for nonpoint source control.

* * * * * (b) The State shall develop and adopt statewide methods for implementing the antidegradation policy adopted pursuant to paragraph (a) of this section . A State ’s antidegradation implementation methods shall be designed to achieve antidegradation protection consistent with paragraph (a) of this section . Such methods must ensure that: (1) H igh quality waters are identified on either a parameter

- by

- parameter basis or on a water body

- by

- water body bas is. A water body

- by

- water body approach must not exclude any water body from high quality water protection based solely on the impairment of a single parameter or group of parameters if any of the uses specified in CWA section 101(a)(2) s attained; and (2) T he State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this section , after conducting an alternatives analysis that evaluates a range of non

- degrading and minimally degrading alternatives that have the potential to prevent or minimize the degradation associated with the proposed activity. Any decision to authorize lowering of high water quality will reflect implementation of a feasible alternative that eith er prevents or minimizes degradation associated with the activity.

§131.14

- [Added]

9. Add §131.14 to subpart B to read as follows:

§131.14 Water Quality Standards Variances. States may, at their discretion, grant variances subject to the provisions of this section and public participation requirements at §131.20(b). A water quality standards variance (WQS variance) is a time

- limited designated use and criteri on for a specified pollutant(s), permittee(s), and/or water body or waterbody segment(s) that re flect the highest attainable condition during the specified time period. WQS variances are water quality standards subject to EPA review and approval or disapproval and must be consistent with this section . Any such WQS variances adopted after [insert effective date of the final rule] must be consistent with this regulatory section. (a) Applicability: (1) All applicable WQS not specifically addressed by the WQS variance remain applicable. (2) (i) Where a state adopts a WQS variance, the State regulations must continue to reflect the designated use and criterion unless the state adopts and EPA approves a revision to the designated use and criterion consistent with §131.10 or §131.11.
(ii) The interim requirements specified in the WQS variance are in effec t during the term of the WQS variance and appl y for CWA section 402***E.O. 12866 Review

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53 of 56

permitting purposes and in issuing certifications under section 401 of the Act for the permittee(s), pollutant(s), and/or water body or waterbody segment(s) covered by the WQS variance. Fo r these limited purposes, the interim requirements will be the standards applicable for purposes of the CWA under 40 CFR 1 31.21(c)

- (e).
(3) A WQS variance shall not be granted if the designated use and criterion addressed by the proposed WQS variance can be ac hieved by implementing technology

- based effluent limits required under sections 301(b) and 306 of the Act. (b) Submission Requirements: (1) A WQS variance must specify the following: (i) Identifying information: A WQS variance must identify the pollutant(s), permittee (s), and/or the water body or waterbody segment(s) to which the WQS variance applies. (ii) WQS that apply during a variance for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act : A WQS variance must specify (1) the h ighest attainable interim use and interim numeric criterion or (2) a n interim numeric water quality

- based effluent condition that reflects the highest attainable condition for a specific permittee(s) during the term of the variance. Neither (1) nor (2) sha ll result in any lowering of the currently attained water quality unless a time

- limited lowering of water quality is necessary during the term of a variance for restoration activities, consistent with paragraph (b)(2)(ii) of this section

. (iii) Date the WQS var iance will expire: States must include an expiration date for all WQS variances, consistent with paragraph (b)(2) of this section . WQS variances must be as short as possible but expire no later than 10 years after state adoption. (2) The state must submit a d emonstration that attaining the designated use and criterion is not feasible during the term of the WQS variance because: (i) One of the factors listed in §131.10(g), or (ii) Actions necessary to facilitate restoration through dam removal or other significant wetl and or stream reconfiguration activities preclude attainment of the designated use and criterion while the action s are being implemented. (3) For a waterbody variance, the state must identify and document any cost

effective and reasonable best management pract ices 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. A State must provide public notice and comment for a ny such documentation. (c) Implementing variances in NPDES permits: Consistent with paragraph (a)(2)(ii) of this section, a WQS variance serves as the basis of a water quality

- based effluent limit included in a NPDES permit for the period the variance is in effect

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54 of 56 Any activities required to implement the WQS variance shall be included as conditions of the NPDES permit for the permittee(s) subject to the WQS variance. (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. For a waterbody WQS variance renewal, the state must also pro vide documentation of whether and to what extent the 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. Renewal of a WQS variance may be dis approved if the applicant did not comply with the conditions of the original WQS variance, or otherwise does not meet the requirements of this section.

§131.15

- [Added]

10. Add § 131.15 to subpart B to read as follows:

§131.15 Compliance Schedule Authorizing Provisions

. A State may, at its discretion and consistent with state law, authorize schedules of compliance for water quality

- based effluent limits (WQBELs) in NPDES permits by including a compliance schedule authorizing provision in its water quality standa rds or imp lementing regulations . Any such provision is a water quality standard subject to EPA review and approval and must be consistent with sections 502(17) and 301(b)(1)(C) of the Act. Individual compliance schedules issued pursuant to such authorizing provisi ons are not themselves water quality standards. Individual compliance schedules must be consistent with CWA section 502(17), the state’s EPA

- approved compliance schedule authorizing provision, and the requirements of § 122.2 and § 122.47

.
Subpart C

- [Amende d]

§131.20

- [ Amended ]

11. Amend § 131.20 by revising paragraphs (a) and (b) to read as follows:

§131.20 State review and revision of water quality standards

. (a) State Review

. The State shall from time to time, but at least once every 3 years, hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards; in particular, any water body segment with water quality standards that do not include the uses specified in section 101(a)(2) o f the Act shall be re

- examined every 3 years to determine if any new information has become available

. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingl y

. Similarly, where EPA has published a new or updated CWA section 304(a) criteri a recommendation, a s tate shall re

- examine its water quality criteri a to determine if any criteria should be revised in light of the new or updated 304(a) recommendation to as sure that the designated use continues to be protected

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55 of 56 (b) Public Participation

. The State shall hold public hearings for the purpose of reviewing or revising water quality standards, in accordance with provisions of State law and EPA’s public participation regulation (40 CFR part 25)

. The proposed water quality standards revision and supporting analyses shall be made available to the public prior to the hearing.

* * * * * §131.22

- [Amended]

12. Amend § 131.22 by revising paragraph (b) to read as fo llows:

§131.22 EPA promulgation of water quality standards.

* * * * * (b) T he Administrator may also propose and promulgate a regulation, applicable to one or more States, setting forth a new or revised standard upon determining such a standard is necessary to meet the requirements of the Act

. To constitute an Administrator determination, such determination must (1) be signed by the Administrator or his or her duly authorized delegate

, and (2) contain a statement that the document constitutes an Administrator’s determination under section 303(c)(4)(B) of the Act.

* * * * * Subpart D

- [Amended]

§131.34

- [Amended]

13. Amend § 131. 34 by revising paragraph (c) and removing paragraphs (c)(1) thr ough (c)(5) to read as follows:

§131.34 Kansas

.

* * * * * (c) Water quality standard variances

. The Regional Administrator, EPA Region 7, is authorized to grant variances from the water quality standards in paragraphs (a) and (b) of this section where th e req uirements of §131.14 are met

.

§131.40

- [Amended]

14. Amend § 131. 40 by revising paragraph (c) and removing paragraphs (c)(1) through (c)(5) to read as follows:

§131.40 Puerto Rico

.

* * * * ****E.O. 12866 Review

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56 of 56 (c) Water quality standard variances

. The Regional Administrator, EPA Region 2, is authorized to grant variances from the water quality standards in paragraphs (a) and (b) of this section where the requirements of §131.14 are met

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1 of 8 EO 12866_OW WQS RIN 2040

- AF 16 NPRM FRN_20111027 Supplemental Redline&Strikeout Rule Text.

NOTE: THE FOLLOWING REGULATORY TEXT IS ANNOTATED WITH STRIKEOUTS (PROPOSED TEXT TO BE DELETED) AND UNDERLINES (PROPOSED TEXT TO BE ADDED) TO ASSIST REVIEWERS. BEFORE FINALIZING, THE STRICKEN TEXT AND UNDERLINES WILL BE REMOVED.

For the reasons s tated in the preamble, the EPA proposes to amend 40 CFR part 131 as follows:

PART 131

— WATER QUALITY ST ANDARDS

1. The authority citation for part 131 continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

Subpart A

- [Amended]

§131.2

- [Amended]

2. Amend § 131.2 by revising the first sentence to read as follows:

§ 131.2 P urpose. A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria

necessary that to protect the designated uses.

§131.3

- [Amended]

3. Amend § 131.3 by revis ing paragraphs (h) and (j), and adding paragraph (m), to read as follows:

§131.3 Definitions. * * * * * (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

- base s d effluent limitations required by sections 301(b) and 306 of the Act. * * * * * (j) States include: The 50 States , the District of Columbia, Guam, the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the Trust Territory of the Pacific Islands, the Commonwealth of the Northern Mariana Islands, and Indian Tribes that EPA determines to be eligible for purpos es of the water quality standards program.***SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review

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2 of 8 * * * * * (m) Highest attainable use and criteria is the aquatic life, wildlife, and/or recreation use and the criteria that protect such a use that are found to be both closest to the uses specified in section 10 1(a)(2) of the Act and attainable, as determined using best available data and information through an appropriate use attainability analysis defined in §131.3(g).

§131.5

- [Amended]

4. Amend §131.5 as follows:

a. Revise paragraphs (a)(1) and (a)(2):

§131.5 EPA Authority

. (a) * * * (1) Whether the State has adopted designated water uses which are consistent with the requirements of the Clean Water Act; (2) Whether the State has adopted criteria that protect the designated water uses based on sound scientific rationale ; * * * * *

b. Add paragraph (a)(3) and re

- designate paragraphs (a)(3) through (a)(5) as (a)(4) through (a)(6): * * * * * (3) Whether the State has adopted an antidegradation policy and implementation methods consistent with §131.12 ; (4) Whether the State has followed its legal procedures for revising or adopting standards;
( 4 5 ) Whether the State standards which do not include the uses specified in section 101(a)(2) of the Act are based upon appropriate technical and scientific data and

an alyses, and ( 5 6 ) Whether the State submission meets the requirements included in §131.6 of this part and, for Great Lakes States or Great Lakes Tribes (as defined in 40 CFR 132.2) to conform to section 118 of the Act, the requirements of 40 CFR part 132. ( b) If EPA determines that the State's or Tribe's water quality standards are consistent with the factors listed in paragraphs (a)(1) through (a)( 5 6 ) of this section, EPA approves the standards. EPA must disapprove the State's or Tribe's water quality standards and promulgate Federal standards under section 303(c)(4), and for Great Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or Tribal adopted standards are not consistent with the factors listed in paragraphs (a)(1) through (a)( 5 6 ) of this section. EPA may also promulgate a new or revised standard when necessary to meet the requirements of the Act.

* * * * * 5. Amend § 131.6 by revising paragraph (d) to read a s follows:***SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review

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3 of 8 §131.6 Minimum requirements for water quality sta ndards submission.

* * * * * (d) An antidegradation policy and implementation methods consistent with §131.12.

* * * * *

Subpart B

- [Amended]

§131.10

- [Amended]

6. Amend § 131.10 by revising paragraphs (g) and (j) and removing paragraph (k) as follows:

§131.10 Designation of u ses. * * * * * (g) States may either (1) remove a designated use that is specified in section 101(a)(2) of the Act or a sub

- category of such a use, that which is not an existing use, as defined in §131.3, or establish (2) adopt sub

- c ategories of a use specified in section 101(a)(2) of the Act that require less stringent criteria, if the State can demonstrate that attaining the designated use is not feasible through a use attainability analysis as described in §131.3(g). If the state revises its water quality standards based on such a demonstration, the state shall adopt the highest attainable use and the criteria that protect such a use. States conducting a use attainability analysis pursuant to §131.10(j) can demonstrate that attain ing the designated use is not feasible because: * * * * * (j) A S tate must conduct a use attainability analysis as described in §131.3(g)

, and §131.10(g)

, whenever: * * * * * (2) The State wishes to remove a designated use that is specified in section 101(a)(2) of the Act , to remove a subcategory of such a use, or to adopt subcategories of uses specified in section 101(a)(2) of the Act which require less stringent criteria.

* * * * * (k) A State is not required to conduct a use attainability analysis u nder this regulation whenever designating uses which include those specified in section 101(a)(2) of the Act.

§131.11

- [Amended]

7. Amend §131.11 by revising paragraphs (a)(2) and (b) to read as follows:

(a) * * * * * * * ****SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review

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4 of 8 (2) Toxic Pollutants

. States must review water quality data and information on discharges to identify specific water bodies where toxic pollutants may be adversely affecting water quality or the attainment of the designated water use or where the levels of toxic pollutants are at a level to warrant concern and must adopt criteria for such toxic pollutants applicable to the water body sufficient to protect the designated use

. Where a State adopts narrative criteria for toxic pollutants to protect designated uses, the State must provide info rmation identifying the method by which the State intends to regulate point source discharges of toxic pollutants on water quality limited segments based on such narrative criteria . Such information may be included as part of the standards or may be includ ed in documents generated by the State in response to the Water Quality Planning and Management Regulations (40 CFR part 35 130 ). (b) Form of criteria: Form of criteria: In establishing criteria, States should shall :

* * * * * §131.12

- [Amended]

8. Amend § 131.12 by revising the section heading and paragraphs (a) and (a)(2) and adding paragraph (b) a s follows:

§ 131.12 Antidegradation Policy and Implementation Methods

. (a) The State shall develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy pursuant to this subpart

. The antidegradation policy and implementation methods shall, at a minimum, be consistent with the following: (1) * * * (2) Where the quality of the waters exceed levels necessary to support th e protection and propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State ’ s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower water quality, the State shall assure

ensure water quality adequate to protect existing uses fully. Further, the state shall assure

ensure 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.

* * * * * (b) The State shall develop and adopt statewide method s for implementing the antidegradation policy adopted pursuant to paragraph (a) of this section. A Stat e’s antidegradation implementation method s shall be designed to achieve antidegradation protection consistent with paragraph (a ) of this section . Such methods must ensure that: (1) High quality waters are identified on either a parameter

- by

- parameter basi s or on a water body

- by

- water body basis. A water body

- by

- water body approach must not exclude any water body from high quality water protection based solely on the***SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review

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5 of 8 impairment of a single parameter or group of parameters if any of the uses specified in CW A section 101(a)(2) s attained; and (2) T he State will only make a finding that lowering high water quality is necessary, pursuant to paragraph (a)(2) of this section , after conducting an alternatives analysis that evaluates a range of non

- degrading and mi nimally degrading alternatives that have the potential to prevent or minimize the degradation associa ted with the proposed activity. Any decision to authorize lowering of high water quality will reflect implementation of a feasible alternative that either prevents or minimizes degradation associated with the activity.

§131.14

- [Added]

9. Add §131.14 to subpart B to read as follows:

§131.14 Water Quality Standards V ariances

. States may, at their discretion, grant variances subject to the provisions of this section and public participation requirements at §131.20(b). A wa ter quality standards variance (WQS variance) is a time

- limited designated use and criterion for a specified pollutant(s), permittee(s ) , and/or water body or waterbody segment(s) that reflec t the highest attainable condition during the specified time period. WQS v ariances are water quality standards subject to EPA review and approval or disapproval and must be consistent with this section

. Any such WQS variances adopted after [insert effecti ve date of the final rule] must be consistent with this regulatory section

. (a) Applicability : (1) All applicable WQS not specifically addressed by the WQS variance remain applicable

. (2) (i) Where a state adopts a WQS variance, the State regulations must continue to reflect the designated use and criterion unless the state adopts and EPA approves a revision to the designated use and criterion consistent with §131.10 or §131.11.
(ii) The interim requirements specified in the WQS variance are in effect during the term of the WQS variance and apply for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act for the permittee( s)

, pollutant(s) , and/or water body or waterbody segment(s) covered by the WQS variance. For these limited purposes, the interim requirements will be the standards applicable for purposes of the CWA under 40 CFR 131.21(c)

- (e).
(3) A WQS variance shall not be granted i f the designated use and criterion addressed by the proposed WQS variance can be achieved by implementing technology

- based effluent limits required under sections 301(b) and 306 of the Act

. (b) Submission Requirements : (1) A WQS variance must specify the following:***SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review

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6 of 8

(i) Identifying i nformation: A WQS variance must iden tify the pollutant(s), permittee(s), and/or the water body or waterbody segment(s) to which the WQS variance applies. (ii) WQS that apply during a variance for CWA section 402 permitting purposes and in issuing certifications under section 401 of the Act : A WQS variance must specify (1) the highest attainable interim use and interim numeric criterion or (2) a n interim numeric water quality

- based effluent condition that reflects the highest attainable condition for a specific permittee(s) during the term of the v ariance. Neither (1) nor (2) shall result in any lowering of the currently attained water quality unless a time

- limited lowering of water quality is necessary during the term of a variance for restoration activities, consistent with paragraph (b)(2)(ii) of this section

. (iii) Date the WQS variance will expire: States must include an expiration date for all WQS variances, consistent with paragraph (b)(2) of this section . WQS variances must be as short as possible but expire no later than 10 years after state adoption

. (2) The state must submit a d emonstration that a ttaining the designated use and criteri on is not feasible during the term of the WQS variance because : (i) O ne of the factors listed in §131.10(g)

, or (ii) A ctions necessary to facilitate restoration through d am removal or other significant wetland or stream reconfiguration activities preclude attainment of the designated use and criteri on while the action s are being implemented. (3) For a waterbody variance, the state must identify and document any 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. A State must pro vide public notice and comment for any such documentation. (c) Implementing variances in NPDES permits: Consistent with paragraph (a)(2)(ii) of this section, a WQS variance serves as the basis of a water quality

- based effluent limit included in a NPDES permit for the period the variance is in effect. Any activities required to implement the WQS variance shall be included as conditions of the NPDES permit for the permittee(s) subject to the WQS variance. (d) WQS v ariance renewals : EPA may approve a WQS variance re newal 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 . For a waterbody WQS variance renewal, the state must also provide documentation of whether and to what extent the 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. Renewal of a WQS variance 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.***SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review

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7 of 8 §131.15

- [Added]

10. Add § 131.15 to subpart B to read as follows:

§131.1 5 Compliance Schedule Authorizing Provisions

. A State may, at its discretion and consistent with state law, authorize schedules of compliance for water quality

- based effluent limits (WQBELs) in NPDES permits by including a compliance schedule authorizing provision in its water quality standa rds or implementing regulation s . Any such provision is a water quality standard subject to EPA review and approval and must be consistent with sections 502(17) and 301(b)(1)(C) of the Act. Individual compliance schedules issued pursuant to such authorizing provisions are not themselv es water quality standards. Individual compliance schedules must be consistent with CWA section 502(17), the state’s EPA

- approved compliance schedule authorizing provision, and the requirements of § 122.2 and § 122.47

.
Subpart C

- [Amended]

§131.20

- [Amended]

11. Amend § 131.20 by revising paragraphs (a) and (b) to read as follows:

§131.20 State review and revision of water quality standards

. (a) State Review. The State shall from time to time, but at least once every 3 years, hold public hearing s for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards ; in particular

, . A a ny water body segment with water quality standards that do not include the uses specified in section 101(a)(2) of th e Act shall be re

- examined every 3 years to determine if any new information has become available. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall revise its standards accordingly. S imilarly, where EPA has published a new or updated CWA section 304(a) criteri a recommendation

, a state shall re

- examine its water quality criteria to d etermine if any criteria should be revised in light of the new or updated 304(a) recommendation to

assure that the designated use continues to be protected. (b) Public Participation. The State shall hold a public hearing s for the purpose of reviewing or revising water quality standards, in accordance with provisions of State law

, EPA’s water quality management regulation (40 CFR 130.3(b)(6)) and EPA’s public participation regulation (40 CFR part 25). The proposed water quality standards revision and supporting analyses shall be made available to the public prior to the hearing.

* * * * * §131.22

- [Ame nded]

12. Amend § 131.22 by revising paragraph (b) to read as follows:***SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review

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8 of 8 §131.22 EPA promulgation of water quality standards.

* * * * * (b) T he Administrator may also propose and promulgate a regulation, applicable to one or more States, setting forth a new or revised standard upon determining such a standard is necessary to meet the requirements of the Act

. To constitute an Administrator determination, such determination must (1) be signed by the Administrator or his or her duly authorized delegate, and (2) co ntain a statement that the document constitutes an Administrator’s determination under section 303(c)(4)(B ) of the Act.

* * * * * Subpart D

- [Amended]

§131.34

- [Amended]

13. Amend § 131. 34 by revising paragraph (c) and removing paragraphs (c)(1) through (c)(5) to read as follows:

§131.34 Kansas

.

* * * * * (c) Water quality standard variances

. The Regional Administrator, EPA Region 7, is authorized to grant variances from the water quality standards in paragraphs (a) and (b) of this section where the req uirements of this paragraph (c) §131.14 are met

.

§131.40

- [Amended]

14. Amend § 131. 40 by revising paragraph (c) and removing paragraphs (c)(1) through (c)(5) to read as follows:

§131.40 Puerto Rico

.

* * * * * (c) Water quality standard variances

. The Regional Administrator, EPA Region 2, is authorized to grant variances from the water quality standards in paragraphs (a) and (b) of this section where the requirements of this paragraph (c) §131.14 are met.