(



## I

t

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## 51400 Federal Regi r/ Vol. 48, / day, Novem 8, u ste No.217 Tues ber 1983 / Rules and ltegulations

ENVIRONMENTAL PROTECTION discussed in this section. We have also § 131.12) and we have eliminated the

AGENCY included a table summarizing all the benefit-cost analysis. changes. We believe that these and other 40 C1=R Parts 35,120, and 131 

# Commitment to the Goals of the Clean changes and clarifications in the Final

[WH-FRL 2466-31 

# WaterAct Rule demonstrate EPA's commitment to the objectives, goals and spirit of the

W t q lit St d d R I ti Several changes were made in the Clean Water Act. a er ua y an ar s egu a on 

## Regulation to reassure the pu8lic t gat 

# Changes in Uses AoENCY: Environmental Protection EPA is committed to achievin the oals Agency. of the Act. EPA accepted the The provisions included in

ACTioN: Final rule. recommendations for incIuding § 131.10(h)(1)-(6) of the proposed regulatory language explicitly affirming Regulations, which dealt with

SUMMARY 

## : This Regulation revises and . EPA's commitment to have standards circumstances under which uses could consolidates in a new Part 131 the move toward the Section 101(a)(2) goals be changed, received substantial existing regulations now codi£ied in 40 of the Act and to use standards as a comment. Many commenters objected CFR Parts 120 and 35 that govern the basis of restoring and maintaining the that the change in the phrase "States development, review, revision and integrity of the Nation's waters. must demonstrate" to "States must approval of water quality standards A"Purpose" section (§ 131.2) has determine" that certain conditions exist under Section 303 of the Clean Water been added to the Regulation. The would mean that EPA would require less Act (the Act). The Regulation was Purpose states that standards are to rigorous analyses for changing a use. revised to reflect the experiences gained protect public health or welfare, _They indicated that "determine" merely . in the program by both EPA and the enhance the quality of water and connotates a political process whereas States.114ore explicit information is provide water quality for the protection "demonstrate" implies substantial proof included in the Regulation on what EPA and propagation of fish, shellfish and supported by exacting analyses. EPA expects as part of State water quality wildlife and recreation in and on the believes that structured scientific and standards reviews. The Regulation also water, as well as for agricultural and technical analyses should be requi;ed to clatifies that in promuigating Federal' industrial purposes and navigation. In justify removing or modifying standards,;EPA is subject to the same addition, this section describes the dual designated uses that are included in requirements as the States. role of water quality standards in Section 101(a)(2) of the Act or to justify

EFFECTIVE DATE 

## : December 8,1983. establishing the water quality goals for a continuation of standards which do not

FOR FURTHER INFORMATION CONTACT 

## : specific water body and in serving as include these uses, EPA agrees, that the
David K. Sabock,, Environmental the regulatory basis for the word "demonstrate" better reflects Protection Agency, Chief, Criteria establishment of water quality based Agency policy and has made that
33ranch (WH-585), 401 M Street SW., treatment controls and strategies change (see § 131.10(g)). Washington, 20460 (202) 245-3042. beyond'that level of treatment required Some commenters asked whether

atJPPLEMENTARY tNFORMATiON• The by sections 301(b) and 306 of the Act. modifications„in water quality


## Environmental Prqt,ection Agency (EPA) The final regulation also clarifies that standards, such as defining a level of
propased changes to 40 CFR 120 and 35 when a State changes the designated protection for aquatic life or setting

on October 29, 1982 (47 FR 49234) anrl uses of its waters such that the uses of seasonal standards, were changes in 

## Invited co,mments until February 10, the water body do not include the uses standards subject to the public
1983. Eleven public meetings were held sPecified in the Section 101(a)(2) goals participation requirements of § 131.20(b)
nationwide on the proposed revisions. of the Aet (i.e., the protection and of the regulation. Yes, any moc`iification
1Vine hundred twenty people attended propagation of fish, shellfish, and or change that a State makes in its
those meetings. EPA received 1405 wildlife and recreation in and on the standards is subject.to those
letters and statements on the proposal water), the State will have to requirements.
prlor to the closing of the public demonstrate, through a use attainability Many commenters also objected to , comment period. Comments received on analysis, that these uses_are not the iztclusion of a benefit-cost the proposed Regulation maybe attainable based on physical,,chemical, assessment in justifying changes in uses. inspected `at the Environmental biological or economic factors. This use Historically, e-conomic considerations Protection Agency, Room 2818M, 401 M attainability analysis is required for• have been a part of water quality ' Streel, SW., Washington, D.C. 20460 future changes that the State may make standards decisions. Senate Report No. during the Agency's normal working and for previous actions that tlie S.tate 10 on the Federal Water Pollution hours of 8:00 a.m. to 4:30 p.m. For further took.to designate usea for a water body Control Amendments of 1965, 89th

Information contact the individual listed which did not include the uses specified Congress, 1st Session, iincluded the

above, in Section 101(a)(2). Where water

. statement that "Economic, health, Inforniation in this preamble is

. °yuality improvements result in new esthetic, and conservation values which organixed as follows: uses, States must revise their standards contribute to the social and economic

A. Major changes made in the Proposed Rula to reflect these new uses (See weifare of an area must be taken into

D. R eg 

## ulatory Tmpact Analyses, Regulatory § 131.10(i)). This provision continues an account in determining the most

~ 

## 7exibility Act and Papericork Reduction. . existing EPA requirerrient although it appropriate use or uses of a stream".
Aet Requirements was omitted from the proposed Section 303(c)(2)' of the Act provides that C. I.iat of Subjects tn 40

, CFR 131 Regulation. standards shall be established 

## Appcndix A®Response to Public Comments In addition, as discussed below, we taking into consideration their use and

A. Major Changes Made In the Proposed have revised the proposed . Antidegradation Policy to provide value for. ..." various water uses. Under the 1975 regulation governing the RegulatIon

1, 

## special protection #'or high quality establishment of standards in Part The major additions and deletions ' waters and waters which constitute an. , § 35.1550(c)(1), States were to ". .. take made In the proposed Rule are outstanding National resource (See into consideration environmentai,

t

•, •

~

, . .

. „ . .

# Federal: Register / Vol. 48, No. 217 /- Tuesday, Noveinber 8, .1983 / Rules and Regulations 51401

technological, social, economic,'and ` institutional factors" in determinitig.the attainability of standards foe any' .` ' particular water segment. In addition,s

there is and has been a"n economic consideration in the antidegrad2+ion policy. The Agency recognizes that there are inherent difficulties in a balancing of the benefits,of achieving the ; Section 101(a)(2) goals of the Act with the costs. As a resuit, the Agency was persuaded 

## that the provision in the existing rule allowing changes in designated-uses

where there would be substantial and widespread economic impact better' - reflected the process required by the Act. For these reasons, the wording of = the existing regulation has beeri

retained. Several commeriters objected #o proposed § 131.10(h)(5) ivhich allowed : States to rerinove or to modify designated uses which are not attainable based onphysical factors. After_considering the comments, the 

## Agency decided to limit the reference to physical factors to aquatic life protection uses and to cjarify the existing policy. . Phy sical factors niay be important in evaluating whether uses are"attainable. ' Hoinrever, physical limitations of the stream may not necessarily be azi overriding factor: Common sense and good judgment play an important role in setting appropriate uses-and criteria: In setting criteria and uses, States must assure the, attainment of downstream. standards. The downstream uses_may not be affected by the same physical limitations as the upstream uses. There aie instances where,non-water ,quality.. related factors preclude the attainment of uses regardless of improvements in" water quality. This is particiularly true for fish and wildlife protectiomuses where the lack of a proper substrate may preclude certain forms of aquatic life from using the stream for propagation, or the lacic of cover, depth, ,flow,.pools, riffles or impacts frorn' channelization, dams,:diversions ina y preclude'particular forms of aquatic life from the stream altogether. El?A recognizes thatwhile physical factors also affect the-recreational uses. . _ appropriately designated for a water body. States need to give consideration to the incidental uses which may be made of the water body. EvT -though it 

## may r<ot make sense to encoitrage use of a stream for swimming because of the flow, depth or the velocity of the water, tlie States and EPA must recognize that swimming and/or wading ma y o uccur anyway.-In order to protect pubiic: health, States must set criteria to reflect recreational uses if it appears that recreation will in fact occiur ir,i the.

stream.. In keeping with the pu'r,pose§ of the Act, the wordin of § 131.10(}

~ 

## )(4) of t he proposed Rule now § 131.10(!;)(4))was - modified so that changes in uses could only occur if dams, diversions: or other types of hydrologic modificati ons 

## preclude rather than just inter'fe re with. " the attainment of the,designated uses. It should also be pointed out theit if .: 

## physical limitations of the wa,ter body . were_ used as 1he basis of not iiacluding . uses for a water body that arel specified in Section 101(a)(2) of the Act, those 

## physical factors must be reviewed every three. years. While many coinmenters olijected to

the number of reasons the States could use in justifyfng changes in uses, the Agency decided to keep the six factors, 

## with the changes described above; .. because they better explain w!hen changes may.be made.'1'he te

~ 

## rse Wording of the existing Rule does not adequately explaiin when chajiges can

be made.

A number of comments related to use attainability.analyses. In demonstrat ing that a use is not attainable, States will be required to prepare and sul:)mit to EPA a use attainability anal,y;iis. A use ' attainability analysis is a muliti-step

scientific asses

~ 

## ment of the physical,"
chemical , biological and econo,mic 

## factors. affecting the attainment of a use.
It inc ludes a water body survE

~ 

## y and assessment, a wasteload allocation, and an economic analysis; i€ apprcipriate. A water body survey and a;isessment examines the physical, chemii;al and biological cliaracteristics of

- the water 

## body to: identify and define th,e existing uses of that water body; deter:mine : whether the designated uses iii the State water quality standards are inipaired, and the reasons for the impairihent; and assist States in projecting the potential uses that the water body could support in the absence of pollution. A wasteload + allocation utilizes-mathematical models to_predict the amount o

_ f reduction 

## necessary in pollutant loadings to achieve the designated use. Ecionomic analyses are appropriate in dEitermining whether the more stringent retjuirements would cause substantial and ; widespread economic and social impact. These analyses should addres's the ' iperemental effects of water q•pality standards beyond technology-based or other State requirements. The Agency's guidance suggests that States consider effects due to compliance by piriv.ate and municipal dischargers. If the requirements are not demonst:rated to

have a substantial and widesFiread impact on the affected cocnmunity, the standard must be maintained or made 

## coinpatible with the goals of the Act. -.

There was considerable comment on whether the use attainability analyses "- should be reyuired, and if so`when In keeping with section $10 of the Act, EPA

is not requiring States.to conduct and submit a use attainability analysis if adding a use specified in Section 101(a)(2) of the Act or a use requiring more stringent criteria. In the final rule,

EPA

- is requiring that States conduct and 

## submit to EPA a use attainability analysis if the State (a) is designating uses for the water body such that the water body wiill not have all uses which are included in Section.101(a)(2) o€ the . Act, (b) maintaining"uses for the water lioiiy which do not include all o£ the

us.es in. Section 101(a)(2) of the Act; (c) removing a use included,in Section 101(a)(2) of the Act or (d) modifying a. use included in Section 101(a)(2) of the Act to require less stringent criteria. A State need only conduct a use attainability once for a givein water bbdy and set of uses. During subsequent triennial review,.States will be required to review the basis of not including-uses for-the water body that are specified in Section 101(a)(2) of the Act to show that circumstances have not changed'and that protection and propagation of fish,

shellfish and wildlife and/or recreation

in and on the water remain.



## unattainable. If such uses have become attainable, the standard must be revised accordingly (See § 131.20(a))♦ 

## However, States may wish to conduct a use attainability analysis, even where not required, if they believe that there ivill . be questions as to whether the protection and propagation of fisb,
shellfish and wildlife and recreation in and on the water is, in fact, attainable. The guidance on conducting the water body survey and assessment is included
in the Water Quality St

andards.,
Nandbook. The earlier draft of the
Handbook'has been revised and expanded. Test cases illustratingthe water body survey and assessment guidance have been completed and are included in the Handbook. In addition, the Agency has published a Technical Support Manual.• Water Body Surveys and Assessments far Conducting a Use AttainabilityAnalyses. These ' publications may be o,btained by writing or calling David K. Sabock at the 

## address and phorie number listed under

"FOR FURTLiER INFORMATION CONTACY. 

## By publishing guidance on conducting use attainability analyses, EPA is not • requiring that

specific approaches, methods or procedures be used. Rather, States are encouraged to consult with EPA earty.in the,process to agree on

, •.

._

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# 51402 Federal Register / Vol. 48, No. 217 / Tuesday, November 8, 1983 / Rules and Regulations

appropriate methods and procedures for toxic poliutant in the water is at a level • Background water quality eonducting any of the analyses before to warrant concern. States are expected parameters, such as pH, hardness the analyses are initiated and carried to conduct such reviews beginning with temperature, suspended solids, etc., out. Stxtes will have the flexibility of an in-depth analysis of water bodies appt:ar 4o differ significantly from the tailoring the analyses to the specific with known toxic pollutant problems. laboratory water used in developing the water body being examined.as long as States are to adopt numerical or Section 304(a) criteria; or the methods used are scientifically and narrative criteria for those toxic • The types of local aquatic technicall y 

## supportable. pollutants of concern. Numerical criteria organisms in the region differ EPA will review the adequacy of the are appropriate where a few specific significantly from those actually tested data, the suitability and appropriateness. pollutants have been identified as the in developing the Section 304(a) criteria. of the analyses and how the analyses concern, or where human health rather T'he protocols for establishing site- , rrsere applied. In eases where the than aquatic life is the controiling factor. specific criteria; as well as the test cases analyses are inadequate, EPA will To implement such criteria, models are illustrating use of the protocols, are identify how the analyses need to be used to transiate the specific criterion included_in the WaterQuality #mproved and will suggest the type of on a chemical-by-chemical basis into a 3tandar'a's Flandbook. EPA also has a evaltiation or data needed. When the wasteload allocation to obtain a specific limited number of copies of State has initially consulted EPA on the permit limit. Recalculation of State Taxic Criteria analyses to be used, EPA will be able to However, where the effluent or using the family recalculation procedure. expedite its review of the State's ambient conditions are complex, due to These publications may be obtained by analyses of any new or revised State multiple dischargers or multiple writing or calling David K. Sabock at the slandard. pollutants, toxic pollutant limits may be address and phone number listed under

Criteria more appropriately,set through narrative FOR FURTHER INFORMATtON CONTACT at 

## criteria (such as the "free from the beginning of this Rule: EF'A has revised the section qn statements"). Where narrative criteria t:riteria (§ 131,12 #n the proposal; are adopted, the State should indieate as Antidegradation Policy reilunibered to § 131.11 in the final rule) part of its water quality standards The preamble to the' proposed rule In several respects. First, EPA has submission, how it intends to regulate discussed three options for changing the. accepted'the recommendation tha,t the the diseharge of the toxic pollutants. existing antidegradation policy. Option phrase' cr#teria are compatible with" Biological monitoring is one mechanism 1, the proposed option, provided simply protecttng a designated use is confusing « to test compliance with "free from" that uses attained would be maintained. and unnecessary and should be narrative criteria. Biological monitoring Option 2 stated that not only would uses removed. The provision now reads: may include periodic sampling of the

„ attained be maintained but that high 5tates must adopt those water quality ecosystem, trend monitoring and/or criteria that protect the designated use:' periodic bioassays using the effluent, quality waters, i.e. waters with quality

In addition, EPA consolidated parts of Acute and chronic toxicity testiing better than that needed to protect f#sh

the provisions and stated more methods have been developed that and wildlife ; would be maintained (that

conclsel • the basis of EPA's review of p is, the existing antidegradation policy

the a rct riateness of State criteria, enable a ermit wr#ter to ensure that the minus the "outstanding natural resource pP P discharge will not be toxic to aquatic Section 131.11(a) now reads: "Such life. When usin biolo ical monitorin to waters" provision)

. 

## Option 3 would have

criteria mus,t be t

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## ased,on sound test compliance with a rrative criterta, allowed changes in an existing use if

scientific rationele and must contain reference should be made to the maintaining that use would effectively

sufficient parameters or constituents to maximum acceptable levels of toxicity prevent any future growth in the
protect the designated use. For waters and the basiG means by which thesecommunity or if the benefits of with tnultiple use designations, the levels are to be measured or otherw#se maintaining the use do not bear a
criter#a shall support the most sensitive determiined. reasonable relationship to the costs.

use," eliminatin the need for ro osed Although there was support for

g P p Both the pollutant-by-pollutant and O tton 2, there was reater su ort for 

# J 131,12(c) (1)— 

# ( 3). biological methods are being refined and p g pp A number of_comments concerned need to be applied in a conservative retaining the full existing policy, criteria for toxic pollutants. Some fashion. They hold great promise and including the provision on outstanding questioned EPA's commitment to are relatively inexpensive. In many National resource waters. Therefore, controlling toxic pollutants based on the cases a combination of biological EPA has retained the existing
fact that EPA was not "requiring" States monitoring and a chemical-by-chemical antidegradation policy (Section 131.12) to adopt specifie numerical toxic approach will provide the best toxic because it more accurately reflects the polltttant criteria. EPA has made a pollutant control. degree of water quality protection nuntber of changes to more clearly Finally, a number of comments dealt desired by the public, and is consistent reflect our comntitment. For example, with site-specific criteria. It was \ with the goals and purposes of the Act.

EPA ltaas tried to restructure apparent from the comments that some In retaining the policy EPA made £our § 131.11(a)(2) on toxic pollutants to commenters had the mistaken changes. First, the provisions on assist States-in providing the most impression that EPA was advocating maintaining and protecting existing et•fective contro# of toxic pollutants as that States use site-specific criteria instream uses and high quality waters possible. All States have a requirement development procedures for setting alI were retained, but the sentences stating
in their standards that their waters b'e criteria as opposed to using the national that no further water quality free from toxic pollutants in toxic Section 304(a) criteria. Site-sp_ecific degradation which would interfere with
amounts. States are to review their criteria development procedures are not or become injurious to existing instream water quality data and information on needed in all situations. Many of tlie uses is allowed were deleted. The discharges to identify specific water procedures are expensive. Site-specific deletions were made because the terms bodies where toxic pollutants may be criteria development appears most "interfere" and "injurious" were subject adversely impacting water quality or the appropriate on water quality limited to misinterpretation as precluding any

g t ly. des#gated uses or where the level of a water bodies where: activity which mi ht even momentar'

. ~ . .

. •

## quality necessary to protecl:

- those uses must be maintained and prcitected. This 

## provision establishes the al;isolute floor of water quality in all waters;of the United States: The second lsvel (Section 131.12(a)(2)) provides proter.tion of 

## actual water quality in area''s where the. quality of the waters exceed levels necessary to support propagation of fish, shellfish, and "wildlife and r'screation •in and on the water ("fishable/ swimmable"): There are prcivisions '

contained in this subsection:.to allow some limited water quality degradation after extensive public invohiement, as long as the water quality reinains adequate to be "fishable/sviiirnmable:' Finally § 131.23(a)(3) provides special protedtion of waters for which the ordinary use class

ifications •and water quality criteria do not suffice, denoted "outstanding National resonirce water." Ordinarily most people vievi this subsection as protecting anci maintaining the highest qua:tity cvaters of the United States: that is clearly'the thrust of the provision. It does, hotivever, also offer special protection.for waters of "ecological significance,." These ace water bodies which are important, unique; or sensitive ecologicall,y, but : whose water quality as measured by the traditional parameters (dissislved oxygen, pI-I, etc.) may not be

~ 

## particularly high or whose character cannot be adequately described by these
parameters.

General Pollcies

Except for a general stateinent that ' States may adopt policies af'fecting.the application and,implementa

- fion of standards and that such poli,cies are . subject to EPA review and approval, all other elements of proposed ;3ection 131.13 have been deleted, including the detailed statements on mixiiig zones, low flow exemptians, and viiriances. Specific subsections on mi,xing zones, low flow exemptions and variances were deleted b,ecause, as the: public comments suggested,'they were not regulatory in nature and therefore were 

## more appropriately addresseid in guidance. More detailed info.rmation on these subjects is included as guidance in

the 

## Water Quality Standard,g
Handbook. ; Many objected.to the temFiorary variance policy because it appeared to be outside the normal water:quality standards setting process and because the test for gcanting a variance was " " different from that.applied tci changing a designa'ted use. While a variance does not change a standard persE, there was concern thatYsuch a policy would stimulate "pollution shopping" or woutd unfairly penalize firms that h,ad mainaged tlieir operations to mainta'in a, profit While. installing pollution control equipment, to the advanta.ge of those -

that had not. -
EPA has approved State-adopted variances in'the past and will continue

to do so if: each individual variance is included as part of the water quality standard, subject to the same public

review.as other changes in water quality

standards and if each individual variance is granted based on a demonstratioin that meeting the:standard

would cause substantial and : widespread economic and social impact,

the same test as if the State were changing a use based on substantial and vyidespread social and economic impact. EPA,will review €or approval individual variances, not just an overall State variance policy. A State may wish to 'include a variance as part of ; a vvater quality standard rather than change the

standard because the State believes that the standard ultimately can be attained. By maintaining the standard rather than changing it; the State wiIl assure further, progress is made in improving water quaiity and attaining the standard. With the variance provision, NPDES permits may be written such tha't reasonable progress is mad® toward attaining the `- standards without violating Section 402(a)(1) of the Act which states that NPDES_permits must meet the . applicable water quality standards.

State Review

Section 131:20(a).was changed from 

## the proposal in several respects. These changes were made in response to the publie's concern that the language in the proposed regulation either removed or diluted the Act's requirement to review 

## all standards every three years and

. that EPA.'s proposed regulatory language did not provide adequate recognition of the goaIs of the Act. First, the language on• the 3-year review requirement was ' changed to read exactly as the Act. It now reads that"the State shall, from time to, time, but at least:once every three years, hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, mod"ifying and adopting standards:' Senond, a mandatory review and . upgrading requirement has been added. On segments with water quality

, 

## standards that do "not include all of the: uses specified in Section.101(a)(2) of the Act, States mustreexamine thebasis of that decision every three years ta " determine whether any new inforniation, technology, etc. has

become available that would warrant. adding the protection and propagation 

# Rederal Register

. /-Vol. 4 8, No: 217, / Tuesday, Noi; 

# rember 8, 1983 % Rules and Regulatio n 

# s. 51403

add pollutants to the water, Moreover,

we"believe the delete.d"sentence:was intended merely as a restatement of the basic policy. Since the rewritten ., provision, with the addition of a phrase on water quality described in the next , sentence, stands alone as expressing the

basic thrust and intent of the antidegradation policy, we deleted the confusing phrases. Second, in § 131.12(a)(1) a phrase was added 

## requiring that the level of water quality necessary to proteot an existing use be maintained and protected. The previous • policy required only that an existing use be maintained. In § 131.12(a)(2) a phrase 

## was added that "In allowing such degradation or lower'water quality, the State shall assure water quality adequate to protect existing uses fully".

This means that the full use must continue to exist even if some change in water quality may`be permitted. Third, in the first sentence of § 131.12(a)(2) the wording was changed from 

## significant economic or social developrrient . . ." to ". . . important economic or social development. . . ''. In the context of the antidegradation poiicy the word "important" strengthens the intent of protecting higher quality, waters. Although common usage of the words may imply otherw4se, the correct

definitions of the two terms indicate that the greater degree of environmental protection is afforded by the word "important." Fourth, § 131.12(a)(3) dealing with the 

## designation of outstanding National resource waters (ONRW) was changed to provide a limited exception to the absolute "no degradation" requirement.
EPA was concerned that waters which properly could have been designated as ONRW were not being so designated because o.f the flat no degradation provision, and therefore were not being given special protection. The no degradation

- provisiori was sometimes interpreted as prohibiting any activity (including temporary or short-term) from being conducted. States may allow some
limited activities which result in temporary and short-term changes in water q:uality. Such activiti:es are considered to be'consistent with the , intent and purpose of an®NRW. Therefore, EPA has rewritten the provision to read ". .. that water quality shall be maintained and protected," and removed the,phra_se "iqo degradation shall be allowed: . .
In its entirety, the antidegradation 

## policy represents a three-tiered approach to maintaining and protecting various levels of water quality and uses. At its base (Section 131,12(a)(1)), all existing uses and the level,of water

r

#

# ~ 0 131<11 i' 13111

13112 

# 51404 Federal Register / Vol. 48, No. 217 / Tuesday, November 8, 1983 / Rules and Regu lations

oJ' fish, shellfish and wildlife and/or implementation of the technology-based bodies should be incorporated into the

recreation in and on the water. requirements of the Act. f,actors which State's Continuing Planning Process.
Third, EPA has retained the concept may cause a State to select a water There were numerous comments

of allowing a State to select specific body for review include areas where either advocating mechanisms to ensure

water bodies for an in-depth review of advanced treatment and combined the right of dischargers to petition the

the appropriateness of the water quality sewer overflow funding decisions are . $tate.to review particular standards or advocating the burden of proof be on the stttndard. This was done in order to

make maximum use of limited resources pending, major water quality-based permits are scheduled for issuance or discharger to justify any changes in

And ensure that the most critical renewal, toxic pollutants have been standards. EPA does not believe that it should dictate particular administrative environmental problems are addressed. 'of identified or are suspected precluding mechanisms that States use to tnitiate 'This review could include an the attainment of water quality the review of standards onparticular fdxamination of the use, the existin g standards. This list is not meant to be all • water bodies. However, we do, believe tvater fauality criteria, and the need for inclusive, and a State may have other that whatever mechariism the State revised or additional criteria on reasons for examining a particular uses, it should be.made known to the segments where the standards are not standard. The procedures established public and included in the State's proJected to be achieved with for identifying and reviewiixg such water Continuing_Plann ng

, Process docum ent.. m 

## ;

SUMMARY OF THE CHANGES MADE IN THE PROPOSED R EGULATION

S®csion 

### No 

# M secbon

fiitte 

# ~ Nfe f 

# ~ eguf

~ a ' Uoft

~ tal

~ orl

131.1 131.1 Scope..,.....„

131.2 Purpese......

13112 131.3 Defmrtwns..,

13113 131.4 State Autho

131.4- 131.6 EPA Authon

13f6 131,6 M+nnwm Requiremonts

fer Waler Quality StdS,

Submissions.

131 to 131.10 Dosignation of

Uses. Summary of changos

No change made.

New sectian 

### Purpose. Derrnes the duat purpose of water quality standards. Standards establish the water quality goals for a specof'ic vrater body and serve as a regutatory basis tor the establishment of ovater quatity based controls beyond the technology requited under the Act eoThsistent wilh Section 101(a)(2) and 303(c) ot the Act Mmor changes made in the definitions of "criteria", "Section 304(a) criteria" and °water quality standards". Definition of "uses" and "attain" were
removed. A definition of a"Use Attainability Analysis"was added. Word "reviewing" added to sentence "States are responsible for reviewing, estabiishing and revising water quality standards. Tha wording of this seclion has been • stightty revised to show that EPA maPes a determination of "whether" State standards meel lhe five eriteda. Subsection (c) ievised to read "whether the State has followed its legal procedures for revising or 

### adopting standards. Subsection (d) modified to read ° whether the State standards are based on appropriate teehnical and scienGffe data and analyses" rather than
whether the decision making process is based on appropriaie technicat and scientifie data and analyses. Subsection (e) added to include minimum requirements for State submission. ` 4 Undar (d) the statement now reads: "An Antidegradation policy consistent with § Under (e) aftar Attorney General the phrase-"or other appropriate legal authodty witthin the State" was added

Statement addotf to (a) prohibiting designating a stream for waste transport or assimilation.

Added a new (b) that in designating uses of a water body amf the appropriate criteria. States are to ensure the attainmont and maintenanc® of

downstream standards. Removed (c). Tfle Anbdegradation Policy Is now described in § 131.iZ Section (b) renumbered (c), removed (e), Section (t) rerwmbered (e), and Section (g) renumbered (f). Paragraph (h) now (g) has been changed. It now requires that a State must demonsbate that the designated use, which is not an existing use, is
not attainable. Items 4 and 6 were also reworded. Item 4 now reads that changes in uses can be justiffed if dams, diversions or other types o'f hydroiogic modirx.ations preclude the attainment of a use rather than just,interfere with the attainment of a use. Item fi Ilmits the consideration

, of physicai factors to aquatic life protection uses. Item 6 has beon lotally changed. It now reads that changes in uses can be made if controls nrore stringent than those required by Section 301(b) and 306 of the Acl would result in substantial and widespread economic and social impact. In paragraph O now (h), (2) and (3) are consoiidated. Subparagraph (4) has been eliminated because of the revision to the Antidegradation Policy (see § 131.12). Subparagraph (5) now appears in § 131.6(b). Now paragraph p) requires States to revise th m eir standards to refiect improveents in water quality. In paragraph (n, EPA has defined that States must conduct a.Use Attainability Analysis if designating uses not specified in Section 101(a)(2) of the Ad, when removing a use specified in Section 101(a)(2) or if modifying uses specified in Section 101(a)(2) by requiring less stringent criteria. Paragraph (k) clarifies that States are not required to conduct a Use Attainability Analysis when designating uses specified in Section 101(a)(2)

of tha Act.
Anatyses for Etimated. 

### chatiOng a

.,, Modifying Usos.

Cnteda ....... .... ._...... Etiminated, Undar (a)(1) the phrase "are compatibte wlth" has been removed and following the 6rst sentence the fobowirrg has been added: "SJch critoda
must be based on sound scientific rationale and must contain suffcient parameters or constitutents to-protect the designated use. For watbr with multipfe use designations, the cdteria shall support the most sensitive use." Subpamgraph (a)(2) has been revised to read that Stales must review water quality data and information and where toxid poltutarits rriay be- adversely affecting the attainment of 

# ~ the water quality or the attainment of the designatod use or wher® the levets of loxie p'oliutants are at .a,
tevel to warrant concem must adopt criteria for the toxic pollutants. Where States adopt narrative criteria for toxic pollutants, the State inust adopt a policy indenGfying the method by y which the State intenils to regWate point source discharges based on such nanaGve criteria. Subparts (b)(2) and (3) were combined. Paragraph (c) has been removed because the concepts are now inciuded in paragraph (a).

- The Antidegradation Policy found in the former 40 CFR 35.1550(e) has been adopted into the finat Regulation with several modifications. The ' phrase "interfere weth or become injurious to" was removed, a phrase was added in (a)(1), (2), and (3) to maintain and proteet instream water quaiity to protect exisffng uses, in (a)(2) "important" replaces "significant" in the phrase oh economic and sodal devefopment, and "no degradation" was deleted from (a)(3). ofxuas...:,, Paragraph (a) revised to dadfy that G.eneral Policfes it adopted are to be included in a State's water quality standards and are subject to EPA

review and approvai. Subsections (b)(c)(d) removed. 131,12 AniWagradatlon

Po6cy,

131 13 131.13 Gonorai P

131.20 

# ~ 13120

I State Review and Paragraph (a) State Review has been rewdtten to track the wording in the Act on the three. year review of water quafity standards. States are

Revfsion of requited to review every three years State standards on segments that do rtot include uses specified in Section 101(a)(2) of the Act to Watar Ouali€y , determine whether these standards a re stiil appropriate. FinatEy a-statement has been added that procedures States use to identify water bodies Sfandards, for review should be incomorated into their. Confinuing Planhing Process document.

.0'

i

## Federal Register / VoI.- 48, No:

- 217 / Tuesday, 1V 

## o v 

## i'>,mber 8, 1983 / Rules and Regu la 

# tions 52465

SUMMARY OF THE GHANGES MADE tN THE PROPCSED REGULATION—Co[ltinueta -

Section
No. in

. Section ;
the ' "

~ Nd:in the liqal T tte '. " ;'

. .., , 8umma ot changes.

~ ,. i < proposed

,,

re ulation' g 

### r regulation

• 131.21 131,21 ' EPA Review and No Change.

- Approvat ot
Water 0ualitY i

Standards. -.
' 131.22 ':131.22 EPA'Promulgation Paragraphs (a) and (b) vi©re ctarified to indicate-Administrator may,promulgate.as well as just propose standards_

- - - .- - of Water Ouality Under paragraph (c), a requirement was added 'that EPA ui, promulga.,ng water quality standards is, also subject to the • pubEic paNcipation Standards,

, ` ~

requints of this Regulatio -'-

- - ,, ;

., • '- '.

... . - •-

.. • :., '

- , , . • - -. r `.. '.

. - reme n.

..



## B. Regulatory Impact Analysis and List of Subjects Subpart c—proceduresfor Revfew and

Re ulator Flexibilit Anal sis and g Y Y Y 40 CFi

~ 

## Part 35 RevEsion of Water Qualtty Statedards:

I'a _ perwork Rsduction Act Requirements i' Sec.

Under Executive Order 12291, EPf3 Water pollution control. 131.20 State Review and Revision of Water Quality Standards. must 'ud e whether a Re ulation is 1 g g 

## 40 CFI

~ 

## Part 12u ,•- ; I31.21', EPA Review and`Approval of Watet 

## "inajor" and therefore subject to the Water pollution control quality Standards. require>rient of aRegdlatory Impact 131.22 EPA Promulgation of Water Quality Analysis. It is difficult for EPA to assess 40 CFR Part 131 : Standards:

" the likeiy net cost of this Regulation Water pollution control .' Authority: Clean Water Act, P.L. 92-500, as

because of the affsetting character of its' Intergovernmental relations,', -' amended : 33 U.S.C.1251 

## et seq. `. 

## basic provisions:'I`he Regulation does Administrative practices andl ., establish new obligations on the States procedures, Reporting and record Subpart A— GV°fteral PPOviSlot7S 

## fo'r co"ntrol of toxic pollutants. However, keeping. § 131:1 Scope. tlie Regulation also increase the ability

of the States to deterniine the Dated: November 2,19e3 This part describes .the requirements 

## attainability of strea Witliam

m uses,: to set site- D. Ruakelshaus,

- and rocedures for develo in P. P g
, specific criteria sufficient to protect Administrator, 

## reviewing, revising and approving water

those uses, and to focus limited State and Federal resources on reviewing PART 35—STiATE At

~ 

## tD LQCRIL quality standards by the States as '

authorized b Section 303 c

y O of the
standards for priority water quality ASSISTANC>c

! 

## , Clean Water Act. The reportin or 

## g limited segments. These changes are § 35.1550 . IRemovedl recordkeeping (information) provisions,
designed to enable States to better use 1. Section - 35.1550 is removed. in this rule were approved:by the Office
water quality standards as a.pragmatic ; of 1Vianagement and 13udget under
tooI in-improving water quality where

_ PART 120—HYATER "Ql)ALITh' 3504(b) of the Paperwork Reduction Ac4

necessary to protect water uses. For STAPiDARDS of, 1980, U.S.C. 3501 

## et seq. (approval

these reasons the A enc ud es this not . g Y) g §§ 120.1-i20.3 IReiTt®vssdl 

## number 2040-

~ 

## 449j.

.

. to be a major Regulation under

Executive Order 12291. 2. Sections 120.1 through 1, 1 .0.3 are § 13i,2 Purp®se.

This notice was submi tted to.the removed . . A water quatity standard defines the Office of Management and Budget §§ 120.27 and 120.43 [Reinove;d] water quality goals of a water body, or (OMB) for review as required by 3. Sections 120.27 anti 120:9E3 are ,portion thereof, by designating the use

, Executive Order 12291. Any.coinmen#s removed. ' ' or uses to be made of the yvater and by from OMB to EPA and any EPA 4: Part 131 is added as, set forth below: '' setting criterio necessary to protect the response to those comments are 4A. Subparts A, B; and C a're,added as, , uses. States adopt water qutility

" available for public inspection through follows: standards to protect public health or contracting the person listed at the welfare; enhance the quality of water beginning of this notice. PART ,131--VlrATER Qfl1ALlTiY and serve the purposes of the Clean

. Under the Regulatory Flexibility Act, 5 STANDARDS Wate.r Pict(the Act). "Serve the U.S.C. Section 601 et seq., EPA must Subpar4 A

— 

### Generat Provisions ' 

## purposes of the Act" (as defined in

, prepare a Regulatory FIexibility Sections 101(a)(2) and 303(c) of the Act) Analysis for alI proposed r.egulations Sec. 

## ' 131,1 

## Scope. means that water quality standards that have a significant impact on a 131.2 Purpose. 

## should, wherever attainable, provide substantial number of small entities. _ 131•3 Definitions: water quality for the prtitection and EPA has determined that, for reasons .131:4 

## State authority. propagation of fish, shellfish`and discussed above, this Rule does not 131.5 EPA authority. wildlife and for recreation in and on" the

- ' have significant adverse impact on 131.8 Mininlum requirements fo,r weier

--
~ 

## water-aSld takefnto considera4ion their

small entities. quality standards submissioli. use and val ue of public water supplies,

The

- information collection provisions Subpart S—Eutabltshment of W,ater Qualitgf propagatioii of fish, shellfish, and in this rule have been approved by OMB Standards wildlife, recreation in and•on the water under the Paperwork'Reduction Act of 131•1 0 Designation of uses. and.agricultura'I, industrial, and other
1980, 44 U.S.C. 3501 et seq., and have 131:11 Criteria. purposes including navigation.

, been assigned-control number 2040 -, 13i.1z Antidegradation pohcy.;i, Such standards serve the dual

0049. 131.13 General policies. purposes of establishing the w ater '



## - ° •

_ _ _. ~ 

### ---...-.__ 

## - _ - - - - - '

. ~ 

## .':1

. . _

-
. . . - '

_ .• -
. . . . . . _ -

. . , . • ,.

. . . , .

# 51406 Federal Register / Vol. 48, No: 217 / Tuesday, November 8, 1983 / Rules and Regulations

quality goals for a apecific water body Commonwealth of Puerto Rico, Virgin (f) General information which wiil aid and serve as the regulatory basis for the Islands, American Samoa, the Trust the Agency in determining the adequacy establishment of water-quality-based Territory of the Pacific Islands, and the

- of the scientific basis of the standards treatsnent controls and strategies Commonwealth o£ the Northern Mariana which do not include the••uses

- specified b+syond the technology-based levels of

, 

## Islands. in Section 101(a)(2) of the Act as well as treatment required by sections 301(b) information on general policies and 306 of the Act, § 131.4 State authority. applicable to State standards which States are responsibie for reviewing, may affect their application and §_131.3 Definttiona. establishing and revising water quality implementation. 

# (a) ?`he Act means the Clean Water standards. Under Section 510 of the Act, A,ct (Public Law 92-500, as amended, (33 States may develop water quality U.S.C.1251 et seq.)). 

## standards more stringent than required (b) Criteria 

## are elements of State by this regulation. water quality standards, expressed as constituent concentrations, levels, or narratlYe statements, representing a quality of water that supp_orts a particular use. When criteria are met, water quality will generally protect the
desi nated use. 

# (c 

# ~ Section 304(a) criteria are developed by EPA under authority of Section 304(a) of the Act based on the

latest scientific information on the relationship that the effect of a

constituent concentration has on particular aquatic species and/or human

health. This information is issued periodically to the States as guidance for use In developing criteria. 

# (d) Toxic pollutants are those poliutants listed by the Administrator under Section 307(a) of the Act. 

# (e) Existing uses are those uses actually attained in the water body on ®r after November 28, 1975, whether or not they are included in the water quality standards. 

# (f) Designated uses are those uses specified in water quality standards for each water body or segment whether or not they are being attained. 

# (g) Use Attainability Analysis is a
structured scientific assessment of the factors affecting the attainment of the use which may include physicai, chemical, biological, and economic factors as described in § 131.10(g). 

# (h) i<t'ater 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
technolo g 

## y-bases effluent limitations required by Sections 301(b) and 306 of

the Act. 

# (i) V1Aater quality standards are provisions of State or Federal law which consist of a designated use or uses for

the waters of the United States and water quality criteria for such waters based upon such uses. Water qualiiRy standards are to protect the pubiic health or welfare, enhance the quality of water-and serve the purposes of the AcL (1) States 

## inelude: the 50 States, the District of Columbia, tyuam, the § Under S c n tio horit ( Y



## . )

303 c of the Act, EPA is to review and to approve or disapprove State-adopted water quality
standards. The review involves a determination of: (a) Whether the State has adopted water uses which are consistent with the requirements of the Clean Water Act; (b) whether the state has adopted criteria that protect the designated water uses; (c) whether the State has foilowed its legal procedures for revising or adopting standards; (d)

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 (e) whether the State submission meets the requirenaents included in Section 131.6 of this part. If EPA determines that State water quality

standards are consistent with the factors listed in (a)—(e) of this subsection, EPA approves the standards. EPA must disapprove the State water quality standards and promulgate
Federal standards under Section '303(c)(4) of the Act, if State adopted

standards are not consisient with the factors listed in (a)—(e) of this subsection. EPA may also promulgate a

new or revised standard where necessary to meet the requirements of
the Act.

§ 131.6 Minimum requirements for vrater quatity standards submission.

- 

## The foilowing elements must be included in each State's water. quality

standards submitted to EPA for review: (a) Use designations cons'istent with the provisions of Sections 101(a)(2) and 303(c)(2) of the Act. d • (b) Methods used and analyses conducted to support water quality

standards revisions. ,(c) Water quality criteria sufficient to pr.otect the designated uses. (d) An antidegradation policy consistent with § 131.12. (e) Certification by the State Attorney General or other appropriate legal authority within the State that the water quality standards were duly adopted pursuant to State law. Subpart B—Establishment of VUater 

## Quaiity Standards

§ 131.10 Designation of uses.



## (a) Each State must specify 

## appropriate water uses to be achieved and protected. The classification of the
waters of the State must take into
consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation. In no case shall a State adopt waste transport or waste assiriWation as a designated use for any waters of the United States. (b) In designa{ing uses of a water body and the appropriate criteria for those uses, the State shall take into consideration the water quality

standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality
standards of downstream waters. (c) States may adopt sub-categories of a use and set the appropriate criteria toreflect varying needs of such subcategories of uses, for ins : tance, to differentiate between cold water and
warm water fisheries. (d).At a minimum, uses are deemed attainable if they can be achieved by the imposition of effluent limits required under Sections 301(b) and 306 of the Act

and cost-effective and reasonable best management practices for nonpoint

source control.
(e) Prior to adding or remaving any use, or establishing sub-categories of a use, the State shall provide notice and an opportunity for a public hearing under § 131.20(b) of this regulation. (f) States may adopt seasonal uses as an alternative to reclassifying a water body or segment thereof to uses requiring less stringent water quality criteria. If seasonal uses are adopted, water quality criteria should be adjusted to reflect the seasonal uses, however, ' such criieria shall not preclude the


## attainment and maintenance of a more protective use in another season. (g) States may remove a designated
use which is 

# not an existing use, asdefined in § 131.3, or establish subcategories of a use if the State can

## Rederal Itegister /: Vol. 48, No.. 217

, J;Tuesday; Nove 

# mber 8, 1883 /.Rules•. and Regu l 

# a t 

# io n 

# s-- 5 1407 ..



## demonstrate that attaining the Regulation whenever designating uses (2) Where-the quality of the waters

.. designated use is not feasible because: which include those specified in Sectiorl exceed levels necessary to'support ° (1) Naturally occurring polhitant ' 101(a)(2) of the Act. propagation of fisfi, shellfish, and concentrations.prevent.t.he attainment of wildlife and recreation in-and on the the use;, or ' § is1.11 Criteria.

_- water; that.quality shall be maintained. (2) Natural, ephecneral; intermittent or. (a) Inclusion of pollutants '. and pro.tected unless `the State.finds, low flow conditions.or water levels (1) States must adopt tho4water after full satisfaction of the' , prevent the•attainment of the use; unless quality criteria that protect th'e

. intergovernmental coordination and y

. these conditions may be compensated . designated use. Such criteria ,tnust be publ'ic participation provisions of the ` for by the discharge of sufficient volume based on sound scientific rationale and State's continiuing planning process, that of effluent discharges without

~ 

## ziolating . must contain sufficient param

~ 

## eters or allowing ldrder waterrquality is State water conservation requirements ... constituents to protect the dei4ignated ., necessary to accommodate importarit

- to enable uses to be met; or use. For waters with multiple;use economic or social development in the (3) Human caused conditions ort desig'nations, the criteria shall support area in which the waters are located. Iu sources of pollution p,revent the the most sensitive use. allowing such degradation or'lower ° attainment of the use and cannot be (2) Toxic Pollutants=State.l must `.avater quality, the Stat'e sh'all assure

_ remedied or would-cause inore . review cvater quality data anil water quality, adequate.to protect environmental damage to correct than to , information on discharges to i:dentify. ; -' existiug uses fully.'Further; the State leave in place; or - specific water bodies where toxic shall assure ihat there shalf be achieved : (4) Dams, diversions or other types of pollutants may be adversely affecting the highest statufory and regulatory hydrologic modifications preclude the

~,~ 

## ,ater quality or the attainmerit of the requirements for all, new and existing attainment of the .use, and it is not designated water use or where the " ` point sources and all cost-effective and feasible to restore the water-body to its levels of toxic pollutants are iit a level to - reasonable best management practices original condition or to operate such Warrant concern arid must ad

~ 

## opt criteria for nonpoint source,control. '

, modiffcation in-a way thatwould result in the attainment of the use; or for such toxic pollutants applicable to (3) Where high quality waters

(5) Physical conditions-related to the the water• bod sufficient to

~ y p,rotect the designated use. '11VVhe 

# t e a Stati; ad'opts oonstitute an outstanding National resource; such : as waters of Nationa) and natural features of the water body; such .as the lack of a proper substrate, cover, narrative criteria for toxic pol)utants to State parks and:wildlife.refuges and

fiow,.depth, pools, riffles, and the like, " protect ile'signated uses; the State niust provide information identifying the waters o£ exceptional recreational or: - ecological significance ; that water unrelated to v

~ 

## rater quality, preclude attainment of aquatic life protettion meth od by which the State ini:ends to quality sh'all be maintained and regulate point source dischar€;es''of toxic uses; or
(6)

. 

## Controls more stringent than those : pollutants on water quality lir.nited . segments based on such narraitive P rotected:

4 In those cases where otential O P requred by Sections 301(b) •and 306:of ,'

the Act would result in substantial and criteria. Such information ma

~ 

## i be ' $vater quality impairment associated

- eniith a-thermal discharge is involved, the

, widespread economic and social-impact. included as part of the standaids or may , be included in documents generated by 

## antidegradationpolicy and (h) States may not remove designated


## uses if: - the State in response to the W'ater imple.menting method s_hall be .°



## consistent with section 316 of the Act.

. , (1) They are existing uses, as defined Quality Planning and Manage,knent

in Section 131.3, unless a use requiring Regulations (40 CFR Part 35). ;- -. § 131.13 General poiacies..

more stringent criteria is added; or (b) Form of criteiia: In establishing 

## criteria, StaCes should: J States may, at their discretion, include- 

## (2) Such uses will be attained by in their State standards, policies
im lementin effluent limits re uired . P g q (1) Establish numerical values based " enerall -affectin their a lication and g Y g PP

, under Sectioris 301(b) and 306 of the Act on implernentation, such as mixing zones,: ' and by implementing cost-effective and • (i) 304(a), Guidance; or low flows and variances:

~ 

## Such policies reasonable best management practices (ii) 304(a) Guidance modifieii to reflect aresubject to EPA review and approval. for nonpoint source control. site-specific conditions; or (i) Where existing water quality • (iii) other scientifically defensible Subpart C-Prooedures for Review .

, standards specify designated uses less methods; and Fl;evision of VIlater Quality than those which are presently being . (2) establish narrative criteria or.

. Standards attained, the State shall revise its criteria based upon biomonito'ring standards to r.eflect the uses actually methods where-numerical critieria § 131.20 State review and revision of water quaiity standards.

, being attained. cannot be established or to supplement (j) A State must conduct a use , numerical criteria. (a) State Reviewi The State shall from attainability analysis as described in time to-time, butat least once every ° § 131.3(g) whenever: ..' § 131.a2 dlntidegradation polic

~ 

### i.



## . -. three years, hold public.hearings for the (1)'The State designates or has (a) The State shall develop tind adopt

. purpose of,reviewing applicable water . designated uses that do not include the . a statewide

- antidegradation policy and qualify standards and, as appropriate, uses specified in Section 101(a)(2) of the .: identifythe methods for implementing modifying and adopting stan.dards. Any . Act, or- such policy:pursuant to this-subpart. The. water body segment with yvater quality (2) The State wishes to remove a:. antidegradation policy and standards that do not,include the uses designated use that is specified in implementation methods shall'; at a, sp.eci£ied ' an Section 101(a)(2) of the Act " Section 101(a)(2) of the Act or to adopt minimum, be consistent with the shall be re-examined every three years siibcategories of uses specified in following: to determine if any new information has Section 101(a)(2) of the Act which (1) Existing instream water'jises. and. become available..If such new

,-. rerluire less stringent criteria. ;- the level pf water quality necessary to information indicates that the uses (k) A State is not required to conduct protect the existing-uses shall be,

-- specified in.Section 101(a)(2) of the Act

a : use attainability analysis under this, : maintained and pro.tected $ are'attainable, the State shall revise its-

, ~ -.



# 51408 FederaI Register 

# / Vol. 48, No. 217 / Tuesday, November 8, 1983 / Rules and Regulations

standards accordingly. Procedures States establish for identifying and reviewing water bodies for review should be incorporated into their Continuing Planning Process. (b) PuGlic Particrpalion: The State shell hold a public hearing for the purpose of reviewing water quality standcirds, in accordance with provisions of State law, EPA's water quality management regulation (40 CFR 130.3(b)(6)) and public participation regulation (40 CFR Part 25). The proposed water quality standards revision and supporting analyses shall be made avvilable tq the public prior to lhe het+ring. (e) StrGmittal to EPA: The State shall submit the results of the review, any stipporting analysis for the use attainability analysis, the methodologies used for site-specific criteria development, any general policies applicable to water quality standards and any revisions of the standards to the Regional Administrator for review and approval, within 30 days of the Finai State action to adopt and certify the revised standard, or if no revisions are made as a result of the review, within 30 days of the completion of the review.

$131.21 EPA rsvi®w and approval of water 

## quality standards.
(a) After the State submits its officially adopted revisions, the Regiona[ Administrator shall either: (1) notify the State within 60 days that the revisions are approved, or , (2) notify the State within 90 days that the revisions are disapproved. Such notifieation of disapproval shall specify the changes needed to assure compliance with the requirements of the Act and this regulation, and shall expluin why the State standard is not in compliance with such requirements. Any

new or revised State standard must be aceompanled by some type of supporting analysis. (b) The Regional Administrator's approval or disapproval of a State water quality standard shall be based on the requirements of the Act as described in , §§131.5, and 131.6. (c) A State water quality standard, remains in effect, even though disupproved by EPA, untiI the State revises It or EPA promulgates a rule that supersedes the State water quajity
standard. (d) EPA shall, at least annually, pttblish in the Federal Register a notice of approvals under this section.

1131.22 EPA 

## promulgation of water 

## quaitty standards.
(a) If the State does not adopt the changes specified by the Regional Administrator within 90 days-after notification of the Regional' Administrator's disappr.oval, the Administrator shall promptly propose and promulgate such standard. (b) The Administrator may also propose and promuigate 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. (c) In promulgating water quality standards, the Administrator is subject to the same policies, procedures, analyses, and public participation requirements established for States in ' these regulations.

§§ 120.12 

## and 120.34 

## 1Redesignated as

§§ 131.31 

## and 131.331



## 4B. Sections 120.12 and 120.34 are redesignated as §§ 131.31 and 131.33 respectively and constitute Subpart D, of new Part 131. The heading of new § 131.31 is revised to read "§ 131.31 Arizona". The table,9f contents for new Subpart D is set forth below:

Subpart t?—Federally Promulgated Water Quality Standards

131.31 

## Arizona
131.33 Mississippi. 

## Authority: Clean Water Aet, Pub. L. 92-500, 

## as amended; 33 U.S.C.1251 et seq,


## 5. The heading for Part 120 

# is removed

and reserved. [Note.—Appendix A will not appear in the CFR.]

Appendix A—Response to Public

Comments



## The public comments and statements , submitted to EPA on the proposed Water Quality Standards Regulation before the close of the comment period are summarized in a separate publication, "Summary of Public Comments on the Proposed Water Quality Standards Regulation," March 11, 1983. Limited numbers of the Summary are available from David K.
Sabock at the address listed under

FOR FURTHER INFORINAATION CONTACT. 

## This appendix describes EPA's response to the recommendations for changes in the proposed Regulation.
Similar recommendations have been grouged together. Major additions and deletions made in the Rule in response to public comments are described in greater detaif in the Preamble. Subjects discussed in the Preamble, along Ywith EPA's rationale for accepting or rejecting the public's suggestions include: commitment to the goals of the Clean Water Act, changes in uses (including comments on benefit-cost assessments), criteria, the antidegradation policy, general policies,

and State review.



# Definitions

Several commenters asked what waters were included in the,Standards program. We changed the term "navigable waters" to "waters of the United States" in the Regulation to

avoid confusion. The CWA defines "navigable waters" as "waters of the United States," a broader class of waters than considered "navigable"

under some other statutes.

A number of recommendations were made to improve the series of definitions relating to uses. The terms

"uses" and "attain" were removed from the list of definitions as being unnecessary to define. A definition of- "Use Attainability Analysis" was added as a means of providing a common basis for understanding this analysis. This definition is derived from the language of the existing Regulation. The

recommendation that the definition of "water quality limited segment" be

moved from the Preamble of the proposed Rule to the definition section of the final Rule was accepted. The definition is important to understanding certain provisions of the Rule and is, therefore, logically part of the Rule. Several suggestions were offered regarding the definition of."criteria"

which resulted in the addition of "or
narrative statement" after

"concentration or level" and the
deletion of the final sentence to remove the erroneous implication that only numerical values may be established. However, we rejected the suggestion
that we include in the definition of

criteria a statement that criteria are purely scientific determinations and do not consider the availability of treatment technology or the costs or economic impact of such treatment requirements, because to do so would be misleading. Section 304,(a) criteria developed by EPA are purely scientific determinations, published as guidance for the State's use. They are not enforceable. Criteria adopted as part of State water quality standards are set taking into consideration the protection of a particular designated use, and thus may indirectly reflect a judgment as to the availability of treatment ' technologies needed to attain that use and the associated economic impacts:' Such criteria, adopted as part of a State standard, are_enforceable.

State Review of 

## Water Quality

StandardsThere was considerable public comment on the subject of State Review

# . _ . ~ 

# a.....

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# , Federal Itegister:/ Vol:. 48, No. '217

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# / Tuesday;.lVovetiiber 8,° 1983'/ Rules and Regulations 514®9'

of Water Quality Standards, 

# primarily Priority lists are viewed as fle'xible was being tnade ift'a Sfate's water directed to the apparent lack of:EPA's ' working documents, not as fn;indatory quality standard. Although that commitment to the goals and philosophy

. lists. Public involvemenYiri"de,'veloping- statement was technically accurate, it ' of the Clean Water Act and the .

- these lists is encouraged. i.. '.: left the mistaken impressionthat all
substitution of a review of standards for

, 

## Although there:were:suggestions that public participation was removed from ° a limited number of priority water EPA define for States the prociesses that the discussions on high quality waters

- bodies in lieu of a Statewide. review of should be used in establishing; the list of and that is not.correct. A NPDES p.ermit standards at least once every 3 years. priority water bodies, the Act, does not would have to be issued or a 208 plan These concerns.were addressed in detail require such guidance :and EPA does not . amended for any deterioration in water in the Preamble and will only be briefly believe it is appropriate to,do'so: quality to be "allowed'.'. Both actions_ discussed here. However, whatever procedurE:s States ' require notice and an opportunity for Because of the.overwhelming support establish should be incorporai:ed info public.comment: However,-EPA retained

.. for the Section 101(a)(2) goals of the Act, the States Continuing Plannin;';Process. .' the existing policy 'so this issue is moot EPA added a requirement that any .' document and be made known to 4he Other changes iri the pol'icy affecting stream segment with uses notspecified public=at-large." QNRW are discussed in the Preamble. ' in Section 101(a)(2) of the Act be.reexamined every 3 years by the State to `. 

# Antide radation Polic g 

# y Designatiort of ,ilses

determine_if new information has

. become available. If such new EPA's:proposal,•which woulfd have limited the antidegradation pe`licy to the The question of whether there is a

information indicates that the uses maintenance of existing uses, plus three bierarchy of

. uses
, generated much discussion._Many indicated there is no " specified in Section 101(a)(2) are : alternative policy statements described hierarchy of uses since none of the uses attainable, the State shall r.evise its in the preamble to the proposEil notice,. mentioned in Section 303(c) of the Clean standards acc.ordingly. This provision in generated extensive public coj:nnient. Air Water Act ara ranked or were put effect established a mandatory. ,

' requirement to "upgrade`' water quality EPA's response is described iri the

Preamble to this final rule and-includes into any order of priority, However,

standards as a balance to the provisions, a response to both the subsfaritive and others believed that fish; wildlife and recreation or potable water supply allowing the "downgrading" of standards. This policy also removes philosophical comments offered. Publie , comments overwhelmingly supported clearly have precedence. The'short

problems dealing with equity

_ ~ 

## retention of the existing policy and EP

~ 

## . answer is that Congress, in setting the " goals in Sectiozi 101(a)(2),.established

- considerations among competing dischargers. D'ischargers on a stream did so in the final rule. r EPA's response to,several cummerits '' that, where attainable, water quality

. 

## wiih an unduly "low" designated use , dealing with the antidegradatiori policy, «shall provide. for:the protection of fish, " shellfish, ivildlife and recreation in and should not be given an

. advantage over dischargers on.streams whose which were noCdiscussed indie

Pieamble are discussed below: ort the water:

- . .":Therefore,_EPA hasdesignated uses and criteria were. properly set to reflect attainable uses. Optionthree"contained in the Agencys proposal would havei allowed " `revised the proposed regulation to•better emphasize the uses specified in"the

We have retained the statutory 3-year review requirement. The proposed the possibility of exceptions tci maintaining existing uses. This option Section 101(a)(2) goals of the Act. Under the finalregulation, ; wlierever States

regulation was intended to implement was either.criticized for being illegal or have set or set uses for a water body
which do not include. of the

all uses ` that requirement, but subsequent statements on priority'water bodies in ° was supported because it provaided additional flexibility for economic specified in Section 101(a)(2) of the.Act,

that siibsection of the proposal and' growth: The latter commenters. believed mey must conduct a use attainability :

discussions' in the Preamble and 

# Water that allowances:should be macle for " analysis to demonstrate that these uses



# Q"uallty standards Handbook_(ended to confuse the issue. Many commenters carefully defined exceptions tci the absolute requirement that uses attained are not attainable. Of course, if they are " not-attainable,-the State must select one

-thought EPA was attempting to delete or must be maintained. EPA rejec,ts this or more of the. otlier uses included in

rriinimize that`requirement. This is not contention as being totally,inciinsistent 303(c)(2). While the States need only

EPA's intention.. dvith the spirit and intent of both the conduct a use attainability analysis" .

EPA has changed the language in part Clean Water E1ct and the undeilying once, every three years States will have

131.20 to

- emphzsize the statutory nature philosophy of the antidegradation to review the

~ 

## basis.of prior decisions to

of the 3-year review of all State policy. Moreover, although theyAgency designate, uses a water body which do ;

standards. However, EPA continues. to specifically asked for examples of not include ud'es

- specified -in

, Section
believe that the concept of focusing where the existing antidegradaition 101(a)(2) of"the,Act to determine if there
limited State resources on specific water policy had precluded.growth, rio :- is ; any inforynation which would-warrant
bodies is an appropriate management examples were provid'ed. Therefore, . a:change in the standards. This change
tt:chnique to ensure that the most evholly apart from technieal legal responds positively to the criticism that,
critical environmental problems are : concerns, th'ere appears to be no the proposed regulation settled.for the <., .
adequately addressed. The Preamhle ' justification for adopting Optie!n 3, status quo.and did not"adequately

discusses this in more detail: Most critics of the proposed '' support the improvement.of water

-In addition ; many commenters antidegradation policy objecte+d to ".'' ualit q Y" erroneously assumed that EPA was removing the public's ability te

~ ~ 

## affect The provision in the proposal aliowing .' proposing a.rigid system for determining . decisions on high quality waters and. - States to des,igna#e subcategories of.

_ priority water bodies. EPA has:no rigid outstanding national resource i t waters. In aquatic, use; (Sectionj31:10(b)) has be.en , ..'priority system in mind other than attempting to explain how-the:proposed.. changed slightly in.the final rule assuming the States will address known antidegradation policy would.be (Section 131.10(c)):in response to ."" problems first. Rather ; EPE1 views ``iniplemented, the Preamble to i:he _ suggestions made by various

, setting priorities as a basic management proposed rule stated that no ptiblic comznenters. EPA is attempting ta' tool and a necessary step for States to participation would "be necessairy in convey the concept that someuse make the best use of limited xeso.urces." certain instances because no change ::" '

.. 

## classifications included in the Act and ". .

._

. ;

. , .

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. n ~ .,

.

oi • .

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# 51410 Federal Register / Vol. 48, No. 217 / Tuesday, November 8, 1983 / Rules and Regulations

in State standards are so broad that they do not adequately describe to the public the actual use to be protected. The final rule provides that a State may, because of physical, chemical, biological, and economic factors, wish to adopl sub-categories of a use and set criteria appropriate to protect 

# a partieular use sub-category. The a`Iteration of the language from the proposal to the final rule specifically follows suggestions that uses other than aquatic life protection should be covered, and that factors other than economics should be considered, in designating particular sub-eategories of

uses.Many of the comments on setting subcategories of uses levels of aquatic protection, and seasonal uses were similar, focusing primarily' on the availability of guidance and the adequacy of information on how to establish levels of protection or

seasonal uses. Guidance is available in

the 

## b'Vater Qttalily Standards Fiandbook

on what considerations are involved in determining levels of protection and seasonal uses to designating appropriate uses for a water body. The availability of information will vary depending on

the site involved. EPA intends to eontinuaily improve the scientific and technical basis of the guidance and to • revise such guidance from time to time. Moreover, EPA will not approve standards unless they are based on sound scientific and technical analysis. Establishing sub-categories of uses and seasonal uses are optional considerations on the part of the State. Several conunenters suggested that .

EPA establish a minimum level of protection. EPA believes iC 

## provides the

basie scientific information on various levels of protection with the water quality criteria reeommendations under Section 304(a) of the Act. However, for

EPA to mandate certain levels of ' aquatic life protection within a use would override the primary authority of the State to adopt use classifications and supporting criteria through public hearings. EPA does not believe as being valid the concern expressed by the public that when establishing various levels of protection that the most sensitive species wiil not be protected. The degree of protection may vary depending upon wbat life stage of the most sensitive species the public wishes to protect. For example, water quality criteria necessary to protect spawning of aquatic life generally requires more stringent water quality criteria than does protection of the species during other stages of its life cycle. If spawning is not part of a designated use for a specific water body, then less stringent criteria levels may be established and they will be adequate to protect the use fully. The public also was concerned that uses or sub-categories of uses would not be based on original habitat conditions.

It has never been the intention of the water quality standards program to bring all waters to a pristine condition or necessarily to set standards based on original habitat conditions. In the first instance, some waters are naturally of "poor" quality, and in the second, man has changed the environment and there are instances where an attempt to

correct or control some sources of pollution either simply cannot be

effected or wouid cau'se more environmental damage to correct than to leave in place. In response to comments that the provision on seasonal uses was too loose, we revised the wording to clarify that the criteria may not be adjusted in a way that precludes a more protective

use in another season. A basic policy of the standards program throughout its history has been that the designation of a water body for the purposes of waste transport or waste assimilation is unacceptable. At the public's suggestion, an explicit statement of this policy has been added to § 131.10(a). The objective is to prevent water bodies from being used as open sewers. Thus, this "no waste transport" policy does not mean that wastes cannot be conveyed by barge or boat; such activity is encompassed by the navigation use designation.



## Use Attainability Analysis

Because of the wide range of comments on the use attainability analysis; EPA revised the regulation to better define when such an analysis is appropriate. The changes were

described in the Preamble:

EPA 

## also reworded the proposed concept of the use attainability analysis to ihclude, where appropriate, an analysis of the economic impacts of attaining a use consistent with or more stringent than the Section 101(a)(2) goals of the Act. EPA agrees wiih the

comments • that attainability and affordability are integral components of the same analyses. This is consistent with the previous regulation, which provided that, in determining attaiinability, States were to consider economic factors (§ 35.1550(c)(1)). In the proposed Rule, EPA recommended conducting a benefit-cost assessment in determining whether the bc.nefits-of attaining a use bear a reasoriable relationship to the

- costs. That concept has been removed from . the finai Rule. As explained in the preamble, the Agency was persuaded by the arguments that there are inherent conceptual and procedural difficulties in 

## balancing the benefits of achieving the Section 101(a)(2) goals versus tlie costs. The final regulation avoids these - problems while still recognizing the

relevance of economic factors in determining attainability. The Agency has retained the concept that economic analysis be judged on substantial and widespread economic and social impact.



## Defining Attainable Uses

Several recommendations were made to delete references to Section 301(c)

from"the definition of the minimum baseline technology defining when a use

is considered attainable and cannot be modified or removed. They also suggested making 301(c) waivers subject - to the requirements of proposed § 131.13(c). The Agency believes that it is appropriate to use ali applicabie sections of the Act in defining_the minimum technology based requirements of the Act; section 301(c) 

# is

one such section. In addition, Section 301(c) prescribes the eligibility requirements for a Section 301 waiver. Therefore, EPA has not made the suggested changes relating to Section 301(c).
Others pointed out that the proposed rule did not, but shouid, allow a mix of point and nonpoint source controls in determining whether a use is attainable. It was not EPA's intent to prevent that type of analysis, and the final regulation has been clarified by combining the two paragraphs on point and nonpoint

source controls with the. word "and" in § 131.10(h) Other comments on nonpoint sources focused on the use of the terminology

"cost e£fective and reasonable best management practices." EPA used the

term "cost effective and reasonable best manageinent practices" to cover the development of nonpoint source controls with Section 205(j) funding. We believe generally that nonpoint source controls, developed as part of a State's water quality management plan are cost effective and reasonable. If a designated use can be attained through such BMPs; it would_be inconsistent to allow a change in the use. Some comments also expresseci concern that the Agency was forcing a mandatory regulatory program for nonpoint source controls through the Water Quality Standards Regulation. The Agency dees not believe that the wording will irinpose any new requirements for the development of regulatory programs for nonpoint'souice controls; rather, the regulation simply

## Eederal Register /- Vol. 48, N,o: 2

. 

## 17. Tuesday,' Novei?nber 8, 1983 '/" Rules- an& Regulations 51411

iakes into account those programs

, identify where toxic pollutants may be. include a.discussion of mixing zones,

which exist in asce

rtaining"the minimum adversely affecting the attaininent of low flows; variance and other general requirements. States are still free to

. designated water use,s.and "niust"adopt program policies in a guiflance review and revise their non-point source . criteria to ensure the protectii?n of the. .: document, as has beeri done since 1975. " requirements in accordance.with 208, designated uses, Furthermore,: where , Detailed guidance on these optional 303(e); and 205(j). States adopt narrative state"ments for policies is included in the Water Quality One commenter recommended that ,, toxic pollutants, EPA is requiring,that Standards Handbook. the Agency_include in thesection on use States submit al®ng with their standards Resource.Capabilities

-- attainability a discussion of the submission information identifying the relationship between best management , method by" which the State ini:ends to The issue of re§ources was of concern practices and waterquality 'standards regulate point source dischargies of toxic . to many. While some States over the similar to thatin U.S. EPA; State and, pollutants base&on the narra.l'.ive

- years have collected the.scientific and : Areawide Memorandum, Number 32, provisions. For example, Stateis may technical information'to set appropri

. ate Nov.14,1978. EPA has included that require biological_monitoring

~ 

## if water quality standards, others have ` memorandum in the chapter on "Water dischargers' effluerits such thsit a done:significantly less data,collection. : Body Survey and Assessments for, particular tolerance or LC5o v

~ 

## llue is not EPA recognizes that use attainability Conducting Use Attainability Anaiyses" exceeded. EPA made these changes analyses and site specific"criteria

=- in the Water Quality Standards because it agrees that more'erhphasis studies may.require some States tio ' Hondbook: needs to be placed on the con'trol of

toxic dischar ers: Information on program more resou-tces for §etting.thei'r Ghonges in_ Uses g implementing niethods will en'sure that- water quality standards than in the past.` However, the use, attainability analyses EPA received'substantial comment.on § 131.10(h)(1)-(6) atid (i)(1)=(6) of the EPA and State have a commoii understanding of-whatthe naimative apply only to water, quality, liniited

proposed regulation, which

- deal with criteria really mean, and ovill facilitate segments—segments where standards . N

, ill notbe attained even,with the circumstances under which changes . may (or may not) be made in designated permit writing on water quality limited

streams. t implementation,of technology-based

uses. These sectioris have been revised; " The regulatiori provides.several ways controls of the Act, where.the State wishes to justify uses less,than

. the sh`an es are discussed in

. Section A" $ of the Preamble. of establishing water quality criteria; iiicluding criteria develop'menl! based on "fishable/swimmable'.'. MQreover, ,

Criteria " 

## site-specific characteristics E]?A _ 's field nothin m the uidance, or:in the

requir ment for conducting use

.- We accepted the comment that the tests of the proposed guidance' :

su ortin the.conce t of devftloping

, attainability analyses suggests that
added test of criteria being _ compatible .. with" protecting a'designated use might site speci

~ 

## c criteria, the comnients ` received during the public revi;ew;'and every anaiysis be simiiar in scope and

~ 

## detail or that they must.be intrinsically raise the possibility o£ unnecessary

, . the review conducted by the A

~ 

## gency's expensive and difficult. EPA expects debate over what is ooinpatible with Science Advisory B"oard identified quite,the opposite to be true; the protecting a'designated use. The ._= difficulties with the prdposed guidance: " analyses only ineed to be sufficiently

: senterice was revised to read "States must adopt water quality criteria that The final'guidance_has been carefully

revised to reflect the concerns and detailed to.supportthe specific-, standards: decisionin question." protect-a designated use:' In

- response to corriments received to ensure that the Consequently, when attempting.to `
several comments, EPA also added mechanisms used to develop site=

. ,. establish appropriate aquatic protection : language to clarify that criteria must, be specific criteria are scientificaaly use"s it dirill, for example, be relatively ,- based on sound scientific rational and credible. Research will also continue on siniple to demonstrate to EPA that , must contain sufficient parameters or constituents to protect the designated : improved,techniques, and as validated m ey will be made available to

~ 

## the certain aquatic life,forms.will be unable to exist in an area because of physical use. Some commenters apparently States. factors regardless of the level of water believe that the Agency continues to quaiity attained, i.e.; no level of water have a policy of "presumptive General Policies quality will induce fish to spawri in applicability" applied.to the FederaI While many commenters supported areas where-the bottom strata are iiot water quality criteria or that the including the General Policies provision What the particular species requires for proposed Regulation recreated that (Section 131.13) in the framew6rk of the spawning. In other instances, given the policy. That policy existed from July 10, Regulation, others recommended environmental problems,number of 1978 to Nov. 28,1980, when it was deleting the General Policies section people involved, the cost of pollution rescinded. No such policy now exists from the Regulation and includ.ing it in control to municipalities and industries, . .,_ nor is intended in, the final rule. While

. guidance documents. Since muph of the and the political aspects of the situation, States are.free to draw on EPA's 304(a) language in that proposed part was in' the use attainability analyses may be

_ N criteria as support for State criteria, they

, . fact guidance; EPA decided to delete quite eostly. Because

. resources eire and are equally free to use any other criteria paragraphs (b)-(d):.Only the first part of will likely continue to be a problem; for which gthey have `sound "scientifie the, section which recognizes that States EPA recommends that States set
support. do adopt policies that impact on the priorities'for conducting these analyses. . Comments received from the public implementation and applicatio'.h of water The Agency also belieyes that it is clearly indicated concern that the quality sfandards and that sucli policie.s, appropriate for States to enlist the proposed rule did not appear to'provide : if adopted,. are subject to EPA review cooperation and resources of sufficient emphasis on the control of and Lapproval was retained: ; dischargers in conducting, tlaese toxic pollutants: The proposed I EPA believes that it is.importantfor analyses. EPA continues to believe that paragraph on toxic pollutants was

. the public to understand that mihile the there is considerableexpertise and data

" therefore strengthened" toprovide tltat adoption of these policies is optional ; if " available from various State°agencies States ,"must" review: water quality data adopted they are subject to EPA review that can be. tapped to assist iri
" and information on dischargers to and approval. EPA will continiie to `- establishing attainable stan,dards. This

# 51412 Federal Register / Vol. 48, No. 217 % Tuesday, November 8, 1983 / Rules and Regu l 

# a tions "

expertise does, of course, vary from

State to State but that situation exists under any regulation EPA may promulga te.

In addition to the technical concerns on the development of site-specific

criteria addressed earlier in both the Preamble and this Appendix, the public expressed concern with the cost of the procedttres and the availability of State personnel to conduct and manage such procedures. Because it is a new concept in terms oF application in a regulation, the Preamble to the proposed rule discussed the procedures in detail. Thisconveyed the impression that sitespeci£ic criteria development would be the basic metliod of setting water quality criteria. EPA believes the States

will continue to base most of their standurds on EPA developed Section 304(a) criteria because o£ the resource qttestion and because of the fact that site-specilic criteria will not be necessary in most water bodies, TheFtnal ltule allows States to develop sitespeciiic criteria; it does not require them to do so. As_with use attainability analyses, States should set priorities and enlist the assistance of dischargers in conducting site specific criteria. EPA will be providing training seminars for Slate personnel in applying site-specific criteria development procedures. EPA is also developing simpler and improved techniques.



## StateOFeder+el Roles

There were a number of diverse "

comments on the sections of the proposed rule dealing with "State Review and Revision of Water Quality Standards", "EPA Review and Ap.proval of Water Quality Standards" and "EPA Promulgation of Water Quality

Standards". Several comments on § 131.20 of the proposed regulation "State Review and Revision of Water Quality Standards", requested specific mechanisms be included In the regulation on how States shotild generate data and information, how to involve local government and industry in the data colIection and decision making, how permittees could request a review of inappropriate water quality standards and how the public participates in the water quality standards revision process. All of these

comments were evaluated but few changes were made other than those in $131.20 which were described earlier. States are responsible, within the guidelines of Section 303(c) of the Act and the Water Quality Standards Regulation, for setting water quality

standards. EPA does not believe it is appropriate to specify particular

administrative mechanisms States must use in that process. Ensuring such administrative uniformity would be disruptive to the States without yielding any significant environmental benefit.

There was also a recommendation to include in the rule the policy statetnent that was in the preamble to the proposal on the relationship of Section 

## 24 of the "Municipal Waste Water Treatment

Construction Grant Amendments of


## 1981" (Pub. L. 

## 97-117, December 

## 29, 1981, •33 U.S.C. 1313(a)), to water quality standards reviews. The Agency chose not to do so because, for the purposes of Section 24, water quality standards reviews are synonymous with the water quality standards reviews under Section 303(c) of the Act and the one final rule.

A ntunber of letters and statements expressed concern that the various EPA Regional Offices will interpret the - regulation differently. It is recognized that with•10 Regional Offices responsible for the review and approval of State water quality standards, there is potential for inconsistencies between Regions on recommended data and analyses. Of course, since water quality problems in different regions may vary considerably, the regions must also be able to respond to those problems in ways that make the most sense under the particular circumstances. However, it is believed that EPA's guidance and Headquarters evaluations of the Regional Offices 

# will, to the extent . possible, minimize inconsistencies in the interpretation of the Regulation by our ` Regional Offices. There were suggestions that EPA change the rule to read that the State water quality standards go into effect only after EPA approval. Standards are adopted by States under State law. Consistent with the Clean Water Act, EPA's policy has always been that a State standard goes into effect when adopted by the State and remains in effect, even if disapproved, until the

State revises its standards 

# or EPA promulgates a Federal standard. This interpretation is necessary because

otherwise there would be no standard at all until Federal action was conipleted. A State rescinds its prior standard whenever it adopts a revised standard. In addition, EPA approval of a standard should not be interpreted as superseding the State's right to amend its own laws. a By the same token, if EPA promulgates a Federal standard, the State is obliged to apply that standard in its pollution contr`ol programs or until the State adopts a State standard identieal to or more stringent than the Federal

standards. EPA proposed to publish a notice of approvals of State water quality standards in the Federal Register at least annually. One letter requested that EPA publish the notice of approvals at the time the Agency take aGtion. EPA believes that this actioa is unnecessary since public.ation of these notices (or any delay in publishing them) in no way affects the legal standing of"the.

standards or the status of EPA's ' approval action. When a State adopts a standard, it publishes a notice under

State law. This should be sufficient to ensure that the regulated community is informed of any changes in State water quality standards. EPA's annual publication will serve as a convenient

check. A number of respondents recommended that in promulgating State standards, EPA move expeditiously to avoid excessive delays. EPA's approach in disapproving State standards is to

work with the State to assist the State in revising its standard to meet the Act's requirements. Only as a last resort will EPA promulgate Federal standards. In working with a State to revise its standard, EPA will try to do so within the timeframe of the Act. However, this may not always be possible depending

on State administrative and/or legislative procedures. However, we intend to try harder to eliminate unnecessary delay. In response to a number of questions raised, the final'rule clearly states that in promulgating State standards, the Administrator will be subject to the same public participation policies and procedures established for States.



## Interstate/International Water Quality

Standards Issues

Iri the Preamble to the proposed water quality, standards regulation, EPA

discussed its role in interstate and international water quality standards

issues. There were those that believed

that EPA should include in the regulation specific proc.edures for resolving interstate/international conflicts and require States to adopt standards that meet treaty requirements.

Sinoe these issues have been associated with the standards program since its inception and have been adequately resolved previously without the need for regulatory language, EPA sees no need to include such language in the Final

Rule.

When interstate/international conflicts arise, EPA will play a stronger role in the standards process in addition to the ordinary review and approval procedures described in the regulation. First, if an interstate conflict occurs between States in the same EPA region, the EPA Regional Administrator is in a_ _ _ ~

.. I-

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# IFederal Kegister / Vo1. 48, I

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# iabex 8;

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# 1983:'[ Rules aind, _Itegulatiori's 514

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# 31 `;

position ta help resolve the dispute- two States might have incompatible the force of law. Therefore,

- State water through the ability to review and . standards; both of which meet the quality standards.will have to meet any: approve each State's.standards and by . requirements of the Act and ttiis . treaty.requiremen#s. participating.in •the standards reguiatiori, such as situation is likely to F'inally,-in response"to commenters',
development process:

_ be rare. If it occurs, EPA will dssist the suggestion§,.w.e hape:made some '•

Interstate an.d interregionaI States'in resolving the inconsistency. editorial, and format changes to clarify

organizations can also play a positive The exact procedures will depend upon the regulation. In addition, the substantive changes made io role an this situation; 5econd, if tlie issue involves more than one EPA region and ` the specific circumstances: Therefore

, 

## we do not beiieve it is appropriate to -, demonstrate the Agency s comtnitment

the EPA regions are unable to resolve include specific. procedures in !the Vilater to the goals of the Act should aisahelp clarxfy the regulation. the issues, then the EPA Administrator Quality Standards Regulation to resolve` - can be requesfed to render a judgment, interstate conflicts

. (FR Doc. 83 80233 Filed 1}-0 83; 8:95 am
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## VVhile it ls theroretically possible that .

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## Any specific -treaty requirernienls have

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