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DRIVERS AND BENEFITS OF WQS REG REVISION PROPOSAL –MAY 2013

Designated Uses

1. Highest Attainable Use

Driver: To eliminate situations where a state demonstrates that a designated use is not 

attainable but does not replace that use with another. For example, we wish to avoid 

situations where a state adequately demonstrates that a warm water aquatic life use is not 

attainable based on one of the six factors, but has neither adopted another use to protect 

lesser aquatic life expectations nor demonstrated that no aquatic life use is attainable. Such 

a situation leads to an inefficient and ineffective transaction as EPA cannot approve the 

revision without one of the two state actions.

Benefits:

 Refocuses the public debate from “whether to allow a downgrade” to “what is 

achievable.” Gives the public an avenue to help develop constructive solutions 

rather than simply opposing “downgrades.” Allows states to seek public input on 

the use change and its replacement concurrently. 

 Having expectations clearly stated in the regulation will reduce the time and 

resources spent by states and EPA resolving the issue after the UAA has already 

gone through the public process and formally submitted to EPA. 

 When EPA meets its mandatory review timeframes, it is less vulnerable to 

mandatory duty lawsuits. Consequently, EPA will be able to staff better 

communication/coordination with state partners, as opposed to staffing mandatory 

duty litigation.

2. Clarifying when a UAA is or is not required 

Driver: The current uses regulations have led to a significant amount of confusion because 

40 CFR 131.10(g), (j), and (k) are not connected and, if read independently, could lead to an 

interpretation regarding when a UAA is required that is contrary to the interpretation given 

when the sections are read together. The revisions will ensure that all three provisions are 

interlinked such that there is only one common interpretation. Further, the revisions will 

provide for a more explicit connection between these sections and EPA’s interpretation of 

section 101(a)(2) of the CWA.

Benefits:

 Will make clear to States, tribes, and the public when a UAA is required and when it 

is not.

 Will increase consistency in EPA Regional responses regarding which use changes 

must be justified using one of the 131.10(g) “attainability factors.”

 Will provide states/tribes additional flexibility (grounded in the CWA) for 

removing/refining uses not specified in CWA section 101(a)(2) (e.g., public water 

supply, agricultural use, irrigation use).
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 The legal framework established in the preamble will help EPA when defending 

future litigation on use removals and variances, especially as EPA is seeing an 

increasing use of variances for uses not specified in 101(a)(2), such as for agricultural 

and irrigation uses.

 Will increase transparency to the public as we implement the existing program 

position on this issue.

Antidegradation

1. Identifying High Quality Waters

Driver: Stakeholders have expressed concern over the possible use of the waterbody – by –

waterbdy approach for identifying high quality waters, threatening legal action if EPA does 

not prohibit such an approach. EPA’s revisions use a targeted change to preserve the 

current state/tribe flexibility to prioritize certain waters for Tier 2 protection, while 

addressing a legitimate concern. 

Benefits:

 Provides regulatory protection of state flexibility that is currently used by 1⁄2 of the 

states that might otherwise be eroded in highly likely, case-specific litigation.

 Confirms longstanding guidance allowing pollutant-by-pollutant or waterbody-bywaterbody approaches or a hybrid approach, all of which are in use by states. 

2. Alternatives Analysis

Driver: Stakeholders have expressed concern that some states are either not conducting an 

alternatives analysis before authorizing a lowering of water quality, or, even if they do an 

alternatives analysis, they do not select alternatives that would have less environmental 

harm. EPA’s discussions with states have revealed that states may be conducting these 

alternatives analysis, but the existence of the analysis is not transparent to the public. 

Therefore, the revisions are intended to be explicit regarding expectations for states and 

tribes when allowing a lowering of water quality in a high quality water as required by 40 

CFR 131.12(a)(2)1, and to increase public transparency regarding such decisions, while 

maintaining as much state flexibility as possible. 

 

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131.12(a)(2) “Where the quality of the waters exceed levels necessary to support propagation of fish, shellfish, and wildlife 

and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction 

of the intergovernmental coordination and public participation provisions of the State's continuing planning process, that 

allowing lower water quality is necessary to accommodate important economic or social development in the area in which 

the waters are located. In allowing such degradation or lower water quality, the State shall assure water quality adequate to 

protect existing uses fully. Further, the State shall assure that there shall be achieved the highest statutory and regulatory 

requirements for all new and existing point sources and all cost-effective and reasonable best management practices for 

nonpoint source control.” (emphasis added)
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Benefits:

 Retains goal to ensure states select and implement an alternative, if available, that 

would cause less environmental harm than the proposed lowering, yet still allows 

states to take case specific factors into consideration.

 Increase public acceptance and efficiency of the transaction.

 Rather than specifying a rigid “alternatives analysis” procedure, the proposal builds 

on some current state practices and EPA’s longstanding guidance and only requires a 

state/tribe to identify a range of alternatives that prevent or minimize degradation. 

The proposal maintains state flexibility to choose the alternative that is “feasible” 

before allowing degradation to occur. 

 Explains how a state can utilize its flexibility to select the alternative from within the 

range and that it can select the original project proposal if other alternatives are not 

feasible.

 Preamble explicitly allows for considerations of cross-media impacts. 

 Strikes a balance between status quo and driving states to select the “least 

degrading feasible alternative” which some environmental groups advocate.

3. Adoption of Implementation Methods

Driver: Not all states have sufficient antidegradation implementation methods. EPA’s 

efforts to persuade states to establish such methods have been met with resistance. In 

addition, those states that have sufficient antidegradation methods may not have methods 

fully accessible and transparent to the public. 

Benefits:

 Provides a minimum set of expectations for what aspects of antidegradation all 

states must address in their antidegradation method, while allowing state the 

discretion to tailor their methods. EPA believes that there are States with adequate 

programs today that already meet the minimum set of expectations. 

 States and tribes retain flexibility in what form they adopt their antidegradation 

implementation methods. States and tribes could adopt them into water quality 

standards regulations, other regulations, or incorporate the methods into regulation 

by reference. 

 Working up front with the state and public on antidegradation methods that meet 

the requirements of the CWA and the regulation reduces legal vulnerability for both 

states and EPA. Currently, EPA is vulnerable to mandatory duty suits to promulgate 

methods for states, and to withdraw state NPDES delegation. 

 Responding to antidegradation litigation and petitions is a significant resource drain 

for EPA2. 

 

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EPA has received three petitions to withdraw a State NPDES program due to the state’s failure to adopt 

antidegradation implementation methods into regulation. EPA has also had 6 WQS lawsuits in the past 20 
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Variances

Driver: Variances are currently underutilized or misused, often because there is no regulatory 

framework to guide states and the public. The only framework EPA have is built on a legal 

opinion and relies on the uses regulations which are not always the right match for scenarios in 

which variances are needed. EPA has recognized that the EPA Region receiving the most 

variance requests is also the one that has an established regulatory structure for variances 

through the GLI (Region 5). EPA’s revisions are intended to provide clarity and specificity to the 

use and application of WQS variances, such that states can use them when appropriate. The 

proposal articulates the flexibility available to states when adopting variances, and provides 

sufficient accountability to ensure to the public that variances will be used to foster 

environmental improvements.

Benefits:

 Clarifies EPA’s expectations, brings transparency to the process, and helps promote use 

of variances by significantly reducing confusion, inconsistency, and mixed 

interpretations about how, when, and where variances may be used. 

 Will enhance the ability of some states to issue variances (“EPA says they’re OK”).

 Providing a direct link to CWA authority and providing separate regulations for variances

(from uses) allows EPA to be more flexible for variances than it can today. 

o For example, under the proposal, EPA could allow a variance for a point source 

even if implementing BMPs for non-point sources could potentially enable WQS 

attainment. The variance could serve as a mechanism to provide time to explore 

and implement those BMPs. In contrast, a use removal (and under today’s 

existing regulations, a variance) would be prohibited if the required prospective 

analysis showed that imposing “reasonable and cost effective BMPs for NPS 

control” would allow the current use to be achieved.3

 Provides the regulatory clarity needed to preserve a state/tribe’s ability to submit a 

variance for uses not specified in CWA section 101(a)(2) and identifies when a 

justification for a variances must be based on attainability related factors.

 

years (most in the last 10 years) that directly challenge a state’s lack of antidegradation implementation 

methods or inadequate antidegradation implementation methods in guidance. Several of which have led to 

EPA proposing or promulgating antidegradation implementation methods for states. EPA prefers to have 

states develop their own programs.

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40 CFR 131.10(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.”
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Triennial Review

Driver: There has been concern that some states may not be revising their water quality 

criteria often enough, particularly when EPA publishes new CWA 304(a) criteria. Therefore, 

EPA’s revision is intended to increase routine consideration of updated criteria and whether 

updates are needed to continue protecting the designated use. Also, outdated criteria are a 

legal vulnerability and can undermine the integrity of state standards. 

Benefits:

 Does not mandate updating of criteria. States retain the discretion to determine 

whether criteria revisions are necessary to protect the designated use.

 Encourages states to use their triennial review to preempt legal challenges by 

proactively considering EPA’s 304(a) criteria and providing adequate documentation for 

how the state’s criteria continue to protect the designated use with or without 

revisions. 

 Gives stakeholders an avenue to provide data and comments where they perceive the 

state standards have outdated criteria. 

Compliance Schedule Authorizing Provisions

Driver: Despite the Star-Kist EAB case, states may not be aware what they need to do 

administratively to legally utilize a permit compliance schedule. EPA’s revisions are intended to 

explicitly state EPA’s expectations in light of the Administrator’s 1990 decision in the Star-Kist 

EAB case.

Benefits:

 Provides an up-front transparent legal basis for future permits with WQBEL compliance 

schedules to “derive from and comply with” water quality standards as required by 

122.44(d).4

 Clarifies an individual compliance schedule is a permitting tool and is not itself 

considered a WQS. Issuing a compliance schedule continues to be the responsibility of 

the permitting authority under existing NPDES regulations.

 

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40 CFR 122.44(d)(1)(vii): “When developing water quality-based effluent limits under this paragraph the 

permitting authority shall ensure that: (A) The level of water quality to be achieved by limits on point sources 

established under this paragraph is derived from, and complies with all applicable water quality standards; ...”