( 

I 

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

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.todesignate 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. Regulatory 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. . 

Physical 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 inay 

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 mayo 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'fere 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 demonstrating 

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 includes 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 Standards., 

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.inthe,process to agree on 

, •. . 
_ 

,. 

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.aslong 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 

technically 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 ~ 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 J O tton 2, there was reater su ort for 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 classifications •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.tothe 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.asother 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. 48, No: 217, / Tuesday, Noi;rember 8, 1983 % Rules and Regulations. 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 

# 
~ 0131<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. identified or are suspected 'of 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 document.. 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 eir standards to refiect improveents in water quality. m 

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 byy 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,1Vovi'>,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. 

~ 

,. proposed ,, i < 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 reme n. -'- - ` ~ - ,, ; ., • '- '. ... . - •- .. • :., ' - , , . • - -. r `.. '. . - .. 

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

Re ulator Flexibilit g Y Y Anal sis and 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 g Y) ud es this not . 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 value 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 

technology-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 to 

reflect 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, as 

defined in § 131.3, or establish subcategories of a use if the State can 
Rederal Itegister /: Vol. 48, No.. 217 , J;Tuesday; November 8, 1883 /.Rules•. and Regula tions-- 51407 .. 

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. '11VVhete 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: 

O 4 In those cases where P otential 

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 P g effluent limits re uired . q (1) Establish numerical values based " g enerall -affectin Y g their a PP lication and 

, 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..... . . 

, Federal Itegister:/ Vol:. 48, No. '217 ~ / 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. all of the 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 ".'' q ualit 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 twaters. 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 ". . 

._ 

. 

; 

. , . 

. 

. 

. n 

~ ., 

. 

oi • 

. 

. , -. , . ~ .I 
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 la 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. This 

conveyed 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, The 

Ftnal 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- „ ~ •. 

.,.,, 

~ ,,, , ~ ' . .. ~ ~ ~~ • ~ 

f... 

IFederal Kegister / Vo1. 48, I~lo: 217 / Tiresday, f+loveriabex 8; ~1983:'[ Rules aind, _Itegulatiori's 514~31 `; 

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 ~ 

VVhile it ls theroretically possible that . 

• , 

. 

Any specific -treaty requirernienls have 

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