***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

1 of 56

EO 12866_OW WQS RIN 2040-AF 16 NPRM FRN_20111027.

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA–HQ–OW–2010–0606; FRL_XXXX–X]

RIN 2040–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 helps 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 nation’s waters. The 

EPA is seeking comments from interested parties on these proposed revisions. The core 

of the current regulation has been in place since 1983; since then, a number of issues 

have been raised by stakeholders or identified by the 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 that new or revised 

WQS are necessary, (2) designated uses, (3) triennial reviews, (4) antidegradation, (5) 

variances 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 Docket identification (ID) No.

EPA–HQ–OW–2010–0606, 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–OW–2010–0606.

Hand Delivery: EPA Docket Center, EPA West Room 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. Special arrangements should be made for deliveries of boxed 

information by calling 202-566-2426.
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

2 of 56

Instructions: Direct your comments to Docket ID No. EPA–HQ–OW–2010–0606. 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://www.regulations.gov, including any 

personal information provided, unless the comment includes information claimed to be 

Confidential Business Information (CBI) or other information whose disclosure is 

restricted by statute. Do not submit information that you consider to be CBI or otherwise 

protected through http://www.regulations.gov or email. The http://www.regulations.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.regulations.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 and other contact 

information in the body of your comment and with any disc 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://www.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 materials, such 

as copyrighted material, will be publicly available only in hard copy. Publicly available 

docket materials are available either electronically in http://www.regulations.gov or in 

hard copy at the Office of Water Docket Center, EPA/DC, EPA West, Room 3334, 

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 

Health 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 This 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

3 of 56

B. How has the EPA Engaged the Public and Received Input in Considering 

Updates and Improvements to the 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 Determinations that New or Revised WQS are Necessary

C. Designated Uses

D. Requirements of Triennial Reviews

E. Antidegradation Implementation

F. WQS Variances

G. Provisions Authorizing the Use of Permit-Based Compliance Schedules

H. Other Changes

IV. When Does This Action Take Effect?

V. Economic Impacts on State and Tribal WQS Programs

VI. 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, Distribution, 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 This Action Apply to Me?

State and tribal governments responsible for administering or overseeing water 

quality programs may be directly affected by this rulemaking, as states and authorized 

tribes1 may need to consider and implement new provisions, or revise existing provisions, 

in their water quality standards (WQS or standards). Entities such as industrial 

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 

determining 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

4 of 56

interested in this rulemaking, although they might not be directly impacted. Categories 

and entities that may potentially be affected include the following:

Category Examples of potentially affected entities

States and Tribes States 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 intended 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 might 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 

INFORMATION 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 proposed rule. The EPA considered the views and comments received from these 

sessions in developing this proposal. The 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 comments 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 Confidential Business Information (CBI). 

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

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

information in a disc that you mail to the EPA, mark the outside of the disc as CBI and 

then identify electronically within the disc 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

5 of 56

3. Tips for Preparing Your Comments. 

When submitting comments, remember to:

Identify the rulemaking by docket number and other identifying information 

(subject heading, 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 identified.

II. Background.

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

The CWA—initially enacted as the Federal Water Pollution Control Act 

Amendments of 1972 (Pub. L. 92‒500) and subsequent amendments—establishes the 

basic structure 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 to 

achieve “wherever attainable, an interim goal of water quality which provides for the 

protection and propagation of fish, shellfish, and wildlife and for recreation in and on the 

water” (sections 101(a) and 101(a)(2)).

The CWA establishes the basis for the 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 regulation.”

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 

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

Last updated 10/27/2011.

6 of 56

(2) States 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) State and tribal standards must protect public health or welfare, enhance the 

quality of water, and serve the purposes of the Act;

(4) States 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 promulgate federal standards where the EPA finds 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 

1983.2This 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 implementing the provisions of the 

Act. The following are examples of how the regulation has interpreted and implemented 

the CWA provisions regarding standards:

Establishes procedures 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 

establishing sub-categories 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 authorizing the modification of the EPA’s national recommended 

criteria to reflect site-specific conditions, the use of criteria methodologies 

different from the EPA’s recommendations 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. These 

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 determine 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 that contains the text of WQS the EPA has promulgated to 

replace or augment state and tribal standards. 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

7 of 56

In support of the 1983 regulation, the EPA has issued a number 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, included provisions extending the 

ability to participate in the WQS program to Indian tribes. Second, in 2000 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. How Has the EPA Engaged the Public and Received Input in Considering Updates 

and Improvements 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 states, the EPA, and other 

Federal agencies in open dialogue 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 for greater clarity, focus, and improved 

implementation. The final Guidance is codified in 40 CFR part 132 and helps establish 

consistent, enforceable, and long-term protections from all types of pollutants, with shortterm emphasis on the types of bio-accumulative 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 identifying specific changes that might strengthen water quality 

protection and restoration, facilitate watershed management initiatives, and incorporate 

evolving water quality criteria and assessment science into state and tribal WQS

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.

As 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, many ANPRM 

 

3

First edition, December 1983; second edition, EPA 823-B-94-005a, August 1994.

4

First edition, EPA 440/4-85-032, September, 1985; revised edition, EPA 505/2-90-001, March 1991.
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 stakeholders and an expert panel representing different viewpoints.

5

In addition, the 

EPA held four co-regulator workshops between February 2005 and April 2006 with state, 

interstate, and tribal partners, and gathered further input and feedback on the 

establishment, 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 27

years. These requirements have provided a strong foundation 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 have recurred 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. These discussions addressed a wide range of issues, from

which a subset has been identified as significant areas of continuing concern. These 

issues and the EPA’s proposed regulatory approaches to address them are discussed in 

detail in section III below. The EPA believes that states, tribes, other stakeholders, and 

the public will benefit from clarification in 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 nation’s waters. 

The 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.gov/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/. 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

9 of 56

WQS program. As part of this process, the Agency has considered several fundamental 

questions in evaluating opportunities to improve implementation of the WQS program 

including which recurring implementation issues would benefit most from a regulatory 

clarification or update, whether there 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 effectively 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 131 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 key issue areas: (1) Administrator’s determination that new or revised 

WQS are necessary, (2) designated uses, (3) triennial reviews, (4) antidegradation, (5) 

WQS variances, and (6) compliance schedule authorizing provisions.

B. Administrator’s Determinations that 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. 

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

determine that a new or revised WQS is necessary to meet the CWA requirements, 

typically in those situations where a state fails or is unable to act in a manner consistent 

with the CWA. Such a determination is made at the Administrator’s discretion, after 

evaluating all relevant factors. An Administrator’s determination triggers the requirement 

for the EPA to promptly 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 the 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 make and did not intend to make a determination. For example, 

Agency memoranda or documents articulating areas where states’ WQS may need 

improvements have sometimes been construed or alleged by stakeholders to be official 

Administrator determinations that obligate the EPA to propose and promulgate federal

WQS for such states. 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, and 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

10 of 56

states have the opportunity to consider and evaluate the Agency’s views, without fear of 

litigation triggering a duty on the part of the EPA to propose and promulgate WQS before

either a state 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 improvements should 

be considered, without the possibility that such recommendations will be construed as a 

determination that obligates the EPA to propose and promulgate new or revised 

standards.

The public’s ability under Section 553(e) of the Administrative Procedure 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) process that a use 

specified in section 101(a)(2), or a sub-category of such a use, is not attainable, it must 

adopt the highest attainable use and the criteria that protect such a use. The EPA is also 

proposing to add the definition of HAUC, 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. WQS are the foundation for other CWA requirements 

applicable to a water body, such as WQBELs for point source dischargers, as well as 

assessment of waters and establishment of TMDLs for waters not meeting applicable 

WQS. Because designated uses play such an important role in the effective 

implementation of the CWA, the EPA believes it is essential to provide clear and concise 

regulatory requirements for 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

recurring input and questions on this issue and the potential for conflicting interpretations 

and inconsistent case by case WQS program implementation.

Under section 303 (33 U.S.C. 1313) of the CWA, states are required to develop 

WQS for waters of the United States within their state. 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

11 of 56

303(c)(2)(A)). The beneficial uses to be considered by states 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, shellfish, 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 interprets and 

implements 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 rebuttable presumption of attainability.7Thus, 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 UAA8that 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 attainment 

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 be 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 to conduct a UAA. 

States and tribes have flexibility when managing their designated uses consistent with the 

CWA and implementing regulation. 

More specifically, the current WQS regulation requires a UAA when designating 

uses that do not include the uses specified in section 101(a)(2) of the CWA, when 

removing a designated use specified in section 101(a)(2) of the Act, or when adopting 

sub-categories of such uses that require less stringent criteria. The phrase “uses 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 other 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 presumption” 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.
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 reducing 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 refined 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 §131.10(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 November 28, 1975, whether or not they are included in the water 

quality standards.” Existing 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 the 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 biological 

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 water aquatic 

ecosystem. 

3. Rationale for Revision. 

As discussed above, states 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 section 

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 with 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 environmental 

damage to correct than to leave in place.
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

13 of 56

conditions, the goals of the CWA are not achieved by simply removing the aquatic life 

use designation and applicable criteria without considering if existing water quality can 

be maintained or, where applicable, if water quality can be restored. Rather, the UAA 

must also 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 attainable use and criteria (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 

feasible to attain, as determined using best available data and information through an 

appropriate UAA.” Requiring the HAUC 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, “wherever 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 the Act. 

In determining the HAUC to adopt in place of an unattainable use, states 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 practices (BMPs) and 

associated water quality improvements;

examining the efficacy of treatment technology from engineering studies; and

using water quality models, loading calculations, and other predictive tools.

Once a state or tribe has determined the HAUC, there are several different 

approaches it may wish to consider for articulating the designated use in the relevant 

water quality standards regulations. The EPA provides the following examples of how a 

state may choose to articulate the HAUC:

1. Use a sufficiently refined designated use structure that is already adopted into state 

regulation: Because many states already 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 HAUC. 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

14 of 56

For example, consider a state 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 the 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 associated dissolved oxygen criterion reflect the HAUC despite the disturbed 

condition of the water body.

2. Revise the current designated use structure to include more refined uses and/or subcategories 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. Or, a state may 

have a refined designated use structure, but the use categories are not refined sufficiently 

enough to accurately reflect the HAUC (e.g., the HAUC may fall somewhere in between 

the sub-categories). If a state finds that multiple locations might have the same HAUC, a 

state may wish to consider revising its current designated use framework to include more 

refined uses and/or sub-categories 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 levels 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. However, intermittent 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 refined “intermittent aquatic life use” and the criteria that protect such a use to 

reflect the HAUC 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 designated 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 designated 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-specific expectations, such as a “pH limited 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

15 of 56

aquatic life use,” a “habitat limited aquatic life use,” or a “minerals limited aquatic 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 

state 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 HAUC should not to be confused with “site-specific criteria.” A sitespecific criterion is designed 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 supporting 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 HAUC where 

a use is removed or revised under part 131.10(g), the EPA recommends that states and 

tribes consider the HAUC during a triennial review. If new information becomes 

available during 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 HAUC. 

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 requiring 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 criteria, §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 

131.10(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 Reviews.

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) criteria 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. 

Sections 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 or 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 

CFR131.20. This regulation requires that states and tribes hold a public hearing to review 

applicable 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 unattainable are 

now attainable. 40 CFR 131.20(c) provides that the 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 state or tribal

water quality 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

segment 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 131.20(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 if 

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 comments 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 proposing 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 state 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

17 of 56

1. Background.

Section 101(a) of the CWA emphasizes the prevention of water pollution and 

expressly includes the objective “to restore and maintain the chemical, physical and 

biological integrity of the Nation’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 uses 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 quality necessary to support 

the CWA 101(a)(2) goals, or are Outstanding National Resource Waters (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 section, 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 that 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 antidegradation 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 greater diversity of biological species and a more complex 

community structure than other waters. These attributes confer a special degree of 

resiliency and resistance to adverse effects, particularly as the nation’s waters face an 

increasing degree of stress from anthropogenic influences. 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 contributes 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 sustainable source of water. Degradation of 

water quality results in increasing public health risks, declining aquatic communities and 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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. 

Currently, 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” protection 

(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, hereinafter 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 protection 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 antidegradation as an underused

component of water quality protection. Although the 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 quality 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 provisions, 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 protections. Moreover, state co-regulators have recognized the 

limits of substantial national antidegradation program reliance on guidance alone as the 

key driver of CWA implementation. Most recently on March 30, 2011, the 

Environmental Council of the States (ECOS) published a resolution entitled “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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

19 of 56

require compliance by states with the same in the implementation of delegated 

programs.” For these and the other reasons 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 bodyby-water body basis, as long as the state implementation methods ensure waters 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 attained” 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 attained 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 

Tier 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, shellfish, 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 

quality 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 parameters, 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 allowing 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

20 of 56

parameter 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 evaluation 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, mercury is widely prevalent in U.S. waters and is 

known to bioaccumulate 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–09–006]. If all states and tribes 

used an approach for identifying 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 parameters 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 whole 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 statement 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 intent 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 may 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 significance 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

21 of 56

statement rating system, could be useful to states and tribes 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 Selection 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 lower 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 responsibility, 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. Even if a state or tribe conducts an 

alternatives analysis, the regulation does 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 state 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 states. 

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 identifying any cost-
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 reduce the extent to which

the increased loading results in a lowering of water quality. States and tribes should tailor 

the level of detail and documentation in antidegradation reviews to the specific 

circumstances encountered. The state then uses that information 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 

alternatives to the proposed activity. Similar to the alternatives analysis provided for in 

40 CFR 132, this evaluation would include a consideration of any available nondegrading or minimally degrading pollution prevention alternatives and enhanced 

treatment techniques, 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 

reuse, 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 quality, 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 documentation 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 any other options it should consider. 

4. The EPA Proposal—Part 3: Adopting 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 the absence of such 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

23 of 56

methods reduces transparency in the implementation of states’ and tribes’ policies, and 

potentially limits the ability to ensure protection 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 outside 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, encouraged, 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 antidegradation 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 regulations 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 the 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 approval 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 

opportunity 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 are 

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 specifications, 

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 comments

on a revision to the antidegradation regulation at 40 CFR 131.12 that would require a 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

24 of 56

state or tribe to adopt antidegradation implementation methods in order to improve 

program implementation, ensure consistency with CWA, 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 quality 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 consistent 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: the 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 high quality water: the state or tribe will identify high

quality waters on either a parameter-by-parameter basis or a water bodyby-water body basis, as long as the state implementation methods ensure 

waters 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.

b) Alternatives analysis and social/economic analysis: the state or tribe will 

determine whether the lowering of water quality 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 

quality.

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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

25 of 56

requirements for all new and existing point sources and all cost-effective 

and reasonable best management practices for nonpoint source control 

when allowing a lowering of water quality.

4) ONRW protection: the state or tribe will ensure the maintenance and 

protection of water quality for waters identified as ONRWs.

5) Thermal Discharges: The 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 apply 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. 

The EPA has encouraged states and tribes to utilize WQS variances14 (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 EPA has offered input and support for variances through Office of General 

Counsel legal decisions15, 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 permanent16 designated use change, the WQS regulation lacks

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 specifies 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 downgrading 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 accordance 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 decision became 

known as adopting a “variance” to WQS. Specifically, a variance is a time-limited 

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 discharger 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 expiration 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 technologies, control practices, or other changes in circumstances, thereby 

furthering the objectives of the CWA. 

Presently, the nationally applicable WQS regulation only mentions variances in 40 

CFR 131.13. This provision indicates that variance policies are general policies affecting 

the application and implementation of WQS, and that states and tribes may include 

variances policies in their state and tribal standards, at their discretion. The EPA provided 

variance procedure requirements when it promulgated 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 does not provide specifics on variances, the EPA’s

longstanding position is that variances, as time-limited 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 variances 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 when:

Attaining the 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 use 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 upon 

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 use 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 revisions 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 address any challenges and 

uncertainties associated with attaining the designated use and the associated criterion. 

These revisions will also provide assurance that further feasible progress toward the 

designated use and criterion will be made during the variance 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/textidx?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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

28 of 56

The EPA’s proposed 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 water quality standards variance (WQS variance) is a time-limited use and 

criterion 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 

all 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). 

Where 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 

dischargers, 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 variance, the state 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 interim 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 effect. 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 are 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) and 

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 criterion, 

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 the 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 interim 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 variances 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 specify 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, variances 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 technology-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 applies, 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 comment on its proposal and on any other options it should 

consider.

2. Numeric interim requirements that apply during a variance.
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 attainable interim use and numeric criterion that 

will apply during the term of the variance or (2) an 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) 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). 

As 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 permitting regulations at 40 CFR 122.44(d)(vii)(A). 

As discussed in Section C, the EPA is proposing a requirement that a states adopts

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 

adopt 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 criterion. 

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 variance. This is 

consistent with previous EPA statements in the EPA’s WQS Handbook 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 determination 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 

identifying 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 state 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 variance 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

32 of 56

determine the condition that is both feasible to attain and closest to the protection 

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 all 

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 permittee(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, an interim numeric water quality-based 

effluent condition reflecting the levels 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 

all 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 timelimited, the EPA is proposing that 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 

have changed such that the designated use and criterion are now attainable; (2) whether 

new or additional information has become available to indicate that the designated use 

and criterion are not attainable in the future (i.e., data or information supports a use 

change/refinement); or (3) whether feasible progress is being made toward the designated 

use and criterion and that additional time is needed to make further progress (i.e., whether 

a variance may be renewed). 

 

21 A PMP is a structured process to reduce loadings of a pollutant by identifying, preventing and reducing 

loadings, improving processes and improving wastewater treatment.
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 sufficient 

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 the 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 attaining the 

designated use and criterion is not 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 attainment of the designated use and criterion while the actions 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 proposed 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 might be expected while efforts for dam removal or significant wetlands or 

stream reconfiguration/restoration efforts are underway to facilitate restoration of the 

natural physical features of a 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 remove a dam or significant wetlands or stream reconfiguration/restoration efforts are 

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

Last updated 10/27/2011.

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/economics/) 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

The state’s record for granting a variance based on “Human caused conditions or 

sources of pollution prevent the attainment of the use and cannot be remedied or would 

cause more environmental damage to correct than to leave in place”24may include, but 

not be limited to, consideration and evaluation of the following types of available 

information:

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 

environmental 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 environmental 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 that

allows 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 pollutants. 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 come 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 cross-referenced in §131.14(b)(2)(i).
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 costeffective 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 state must provide public 

notice and comment for any such documentation.

Because other sources of pollution (e.g., nonpoint sources) can have a significant 

bearing on whether the designated use and associated criterion for the entire water body 

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 could 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 

control. 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 

implementing any25 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 surface 

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 because variances are time-limited and targeted serving as a 

tool to facilitate progress toward the designated use and criterion. It is unnecessary to 

require states 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 variance. 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 typically 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) that 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 variance, 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. 

Although 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 because 

both point and nonpoint sources are contributing to the water quality challenges. It is 

 

26 63 FR 36759
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

37 of 56

essential that during the term of the initial variance 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 providing 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 

Rico in §131.34 and 131.40. Today’s proposal reflects the most efficient and transparent 

approach to ensure that variances granted by the Regional Administrator for the federally 

promulgated standards in Kansas and Puerto Rico are required to meet the same 

requirements 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 the 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 

WQBELs in NPDES permits if the state has authorized issuance of such compliance 

schedules pursuant to state law in its water quality standards 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 provisions are not themselves 

WQS but must be consistent with CWA section 502(17), the state’s EPA-approved 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 “schedule of compliance” to mean “a schedule of 

remedial measures including an enforceable sequence of actions or operations leading to 

compliance with an effluent limitation, other limitation, prohibition, or standard.” The 

EPA’s NPDES regulation at 40 CFR 122.2 defines a schedule of compliance as “a 

schedule of remedial measures included in a ‘permit,’ including an enforceable sequence 

of interim requirements...leading to compliance with the CWA and regulations.” Section 

301(b)(1)(C) of the Act specifies that there shall be achieved “...not later than July 1, 

1977, any more stringent limitation, including those necessary to meet WQS, treatment 

standards, or schedules of compliance, established pursuant to any State law or 

regulations (under authority preserved by section 1370 of this title) or any other Federal 

law or regulation, or required to implement any applicable water quality standard 

established pursuant to this chapter.”

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 state has clearly indicated in its WQS or implementing 

regulations that it intends to allow them (i.e., the state’s WQS or implementing 

regulations 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 regulation 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 compliance 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-Kist decision, a state 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 affects the way those 

designated uses and water quality criteria are implemented in permits. Compliance 

schedule authorizing provisions allow the permitting authority 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 compliance schedule 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 was 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 pursuant 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 Proposal.

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 

part 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 clarification).

§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 Proclamation. See 

http://www.presidency.ucsb.edu/ws/index.php?pid=36688#axzz1XrK7AXLN
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 pollutants” 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 with 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 regulation). Delete the phrase “EPA’s water quality 

management regulation (40 CFR 130.3(b)(6))” (nonexistent citation).

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]. Should this 

proposed rulemaking be finalized, the effective date will likely be 60 days after 

publication of the final rule in the Federal Register. For judicial review purposes, the 

effective date will likely be 60 days after publication 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 the 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 EPA’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 associated 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 requests, 

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 administer 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 Incremental 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

42 of 56

Summary of Potential Incremental Administrative Burden and Costs to the EPA

Associated with Today’s Proposal

One-time Annual

Costs to 

States and 

Tribes

(2010$ 

million)

Costs to the 

Agency1 

(2010$ 

million)

Burden Costs to States 

and Tribes

(2010$ million 

per year)

Costs to the 

Agency1 

(2010$ 

million per 

year)

Burden

Hours2FTEs3

Hours 

per 

year2

FTEs 

per year3

$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 to 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 annualization 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 million 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 today’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 efficient 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 agricultural 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 policy 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 Regulatory 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 Regulatory 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 number 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 that 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 information 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 new 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 

implementation 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 defined at 5 CFR 1320.3(b). EPA expects that the 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 data 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 average hourly wage rate of $41.

EPA estimates the incremental number of labor hours 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 revise

antidegradation implementation 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, review 

alternative analyses in antidegradation requests, review additional antidegradation 

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

and review additional variance renewal applications. Given EPA’s estimates of the 

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 

three years) of approximately $0.57 to $1.51 million and annual costs of $3.69 to $5.52 

million. These 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 CFR 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

45 of 56

has established a public docket for 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 information 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 organizations, 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 rule 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 continues to be interested in the potential 

impacts of the proposed 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 state, local, and tribal governments, in 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).
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 (Federalism).

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 state and local governments, or the EPA consults 

with state 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 action that has 

federalism implications and that preempts state law, unless the Agency consults with 

state 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 state and local officials to reevaluate or revise their standards. However, it will 

not impose substantial direct compliance costs on state or local governments, nor will it 

preempt state 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 state 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 states and intergovernmental 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 infringe on states’ flexibility in the areas of antidegradation 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 these 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 state and local governments, the EPA

specifically solicits comment on this proposed action from state 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 federal government provides the funds necessary to pay the 

direct compliance costs incurred by tribal 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 tribal law. To date, 46 Indian tribes have been approved for treatment in the 

same manner as a state (TAS) for CWA sections 303 and 401. Of the 46 tribes, 36 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 might impact all tribes because 

standards may apply to waters adjacent to the tribal waters. The EPA consulted 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 tribesonly consultation session to hear their views and answer questions 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 antidegradation implementation 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 officials.

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 required 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, 

distribution, 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 standards 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

48 of 56

permitted by law, to make environmental justice part of their mission by identifying 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 this 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 rulemaking 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 specific 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 stated 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 revising the first sentence to read as follows:

§ 131.2 Purpose.
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 revising 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 Commonwealth 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 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 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 specified 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 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)(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)(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 as 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 uses.

* * * * *

(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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

51 of 56

(j) A State 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 sufficient 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 

Regulations (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) as 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 necessary 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 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 ensure 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 cost-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) High quality waters are identified on either a parameter-by-parameter basis 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 

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) The 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 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 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 criterion 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. 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 effect 

during the term of the WQS variance and apply for CWA section 402 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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. 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 if 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:

(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 highest 

attainable interim use and interim numeric criterion or (2) an

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) 

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 demonstration 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 wetland or stream reconfiguration activities 

preclude attainment of the designated use and criterion while the 

actions are being implemented.

(3) For a waterbody variance, the state must identify and document any costeffective 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 provide 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. 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 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.

§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 standards or 

implementing 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 provisions 

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-[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 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) of 

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 accordingly. 

Similarly, where EPA has published a new or updated CWA section 304(a) criteria

recommendation, a state shall re-examine its water quality criteria to determine 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. 
***E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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 follows:

§131.22 EPA promulgation of water quality standards.

* * * * *

(b) The 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) 

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 requirements 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 – Draft – Do Not Cite, Quote, or Release During Review***

Last updated 10/27/2011.

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. 
***SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review – Draft – Do Not 

Cite, Quote, or Release During Review***

Last updated 10/21/2011.

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 stated in the preamble, the EPA proposes to amend 40 CFR part 131 as 

follows:

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 revising the first sentence to read as follows:

§ 131.2Purpose.

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 revising 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-basesd

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 purposes of the water quality standards program.
***SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review – Draft – Do Not 

Cite, Quote, or Release During Review***

Last updated 10/21/2011.

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 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;

(4) Whether the State has followed its legal procedures for revising or adopting 

standards;

(45) 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 

analyses, and

(56) 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)(56) 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)(56) 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 as follows:
***SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review – Draft – Do Not 

Cite, Quote, or Release During Review***

Last updated 10/21/2011.

3 of 8

§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 uses.

* * * * *

(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 whichis not an existing use, as defined in 

§131.3, or establish (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:

* * * * *

(j) A State 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 under 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 – Draft – Do Not 

Cite, Quote, or Release During Review***

Last updated 10/21/2011.

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 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 Regulations (40 CFR part 35130).

(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) as follows:

§ 131.12 Antidegradation Policy and Implementation Methods.

(a) The State shall develop and adopt a statewide antidegradation policyand 

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 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 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 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) High quality waters are identified on either a parameter-by-parameter basis 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 – Draft – Do Not 

Cite, Quote, or Release During Review***

Last updated 10/21/2011.

5 of 8

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) The 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 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 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 criterion 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. 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 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 if 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 – Draft – Do Not 

Cite, Quote, or Release During Review***

Last updated 10/21/2011.

6 of 8

(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 highest 

attainable interim use and interim numeric criterion or (2) an

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) 

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 demonstration 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 wetland or stream reconfiguration activities 

preclude attainment of the designated use and criterion while the 

actions are being implemented.

(3) For a waterbody variance, the state must identify and document any costeffective 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 provide 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 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 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 – Draft – Do Not 

Cite, Quote, or Release During Review***

Last updated 10/21/2011.

7 of 8

§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 standards or 

implementing 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 provisions 

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-[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 hearings for the purpose of reviewing applicable water quality standards and, 

as appropriate, modifying and adopting standards; in particular, . Aany water body 

segment with water quality standards that do not include the uses specified in section 

101(a)(2) of 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 

accordingly. Similarly, where EPA has published a new or updated CWA section 304(a) 

criteria recommendation, a state shall re-examine its water quality criteria to determine 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 hearings 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-[Amended]

12. Amend §131.22 by revising paragraph (b) to read as follows:
***SUPPLEMENTAL INFORMATION FOR E.O. 12866 Review – Draft – Do Not 

Cite, Quote, or Release During Review***

Last updated 10/21/2011.

8 of 8

§131.22 EPA promulgation of water quality standards.

* * * * *

(b) The 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) 

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 requirements 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.