```

[Federal Register Volume 80, Number 162 (Friday, August 21, 2015)]
[Rules and Regulations]
[Pages 51019-51050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-19821]

[[Page 51019]]

Vol. 80

Friday,

No. 162

August 21, 2015

Part IV

 Environmental Protection Agency

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40 CFR Part 131

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 Water Quality Standards Regulatory Revisions; Final Rule

Federal Register / Vol. 80 , No. 162 / Friday, August 21, 2015 / 
Rules and Regulations

[[Page 51020]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2010-0606; FRL-9921-21-OW]
RIN 2040-AF16

Water Quality Standards Regulatory Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: EPA updates the federal water quality standards (WQS) 
regulation to provide a better-defined pathway for states and 
authorized tribes to improve water quality and protect high quality 
waters. The WQS regulation establishes a strong foundation for water 
quality management programs, including water quality assessments, 
impaired waters lists, and total maximum daily loads, as well as water 
quality-based effluent limits in National Pollutant Discharge 
Elimination System (NPDES) discharge permits. In this rule, EPA is 
revising six program areas to improve the WQS regulation's 
effectiveness, increase transparency, and enhance opportunities for 
meaningful public engagement at the state, tribal and local levels. 
Specifically, in this rule EPA: Clarifies what constitutes an 
Administrator's determination that new or revised WQS are necessary; 
refines how states and authorized tribes assign and revise designated 
uses for individual water bodies; revises the triennial review 
requirements to clarify the role of new or updated Clean Water Act 
(CWA) section 304(a) criteria recommendations in the development of WQS 
by states and authorized tribes, and applicable WQS that must be 
reviewed triennially; establishes stronger antidegradation requirements 
to enhance protection of high quality waters and promotes public 
transparency; adds new regulatory provisions to promote the appropriate 
use of WQS variances; and clarifies that a state or authorized tribe 
must adopt, and EPA must approve, a permit compliance schedule 
authorizing provision prior to authorizing the use of schedules of 
compliance for water quality-based effluent limits (WQBELs) in NPDES 
permits. In total, these revisions to the WQS regulation enable states 
and authorized tribes to more effectively address complex water quality 
challenges, protect existing water quality, and facilitate 
environmental improvements. The final rule also leads to better 
understanding and proper use of available CWA tools by promoting 
transparent and engaged public participation. This action finalizes the 
WQS regulation revisions initially proposed by EPA on September 4, 
2013.

DATES: This final rule is effective on October 20, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-OW-2010-0606. All documents in the docket are listed on the 
http://www.regulations.gov Web site. Although listed in the index, some 
information is not publicly available, e.g., confidential business 
information or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the Office of Water Docket Center, EPA/DC, William Jefferson Clinton 
West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC 
20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
for the Public Reading Room is (202) 566-1744, and the telephone number 
for the Office of Water Docket Center is (202) 566-2426. To view docket 
materials, call ahead to schedule an appointment. Every user is 
entitled to copy 266 pages per day before incurring a charge. The 
Docket Center may charge $0.15 for each page over the 266-page limit, 
plus an administrative fee of $25.00.

FOR FURTHER INFORMATION CONTACT: Janita Aguirre, Standards and Health 
Protection Division, Office of Science and Technology (4305T), 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington 
DC 20460; telephone number: (202) 566-1860; fax number: (202) 566-0409; 
email address: WQSRegulatoryClarifications@epa.gov.

SUPPLEMENTARY INFORMATION: The supplementary information section is 
organized as follows:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What is the statutory and regulatory history of the federal 
WQS regulation?
    C. What environmental issues do the final changes to the federal 
WQS regulation address?
    D. How was this final rule developed?
    E. When does this action take effect?
II. Rule Revisions Addressed in This Rule
    A. Administrator's Determinations that New or Revised WQS Are 
Necessary
    B. Designated Uses
    C. Triennial Reviews
    D. Antidegradation
    E. WQS Variances
    F. Provisions Authorizing the Use of Schedules of Compliance for 
WQBELs in NPDES Permits
    G. Other Changes
III. Economic Impacts on State and Authorized Tribal WQS Programs
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act (CRA)

I. General Information

A. Does this action apply to me?

    The entities potentially affected by this rule are shown in the 
table below.

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                                               Examples of potentially
                 Category                         affected entities
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States and Tribes.........................  States and authorized tribes
                                             responsible for
                                             administering or overseeing
                                             water quality programs.\1\
Industry..................................  Industries discharging
                                             pollutants to waters of the
                                             United States.
Municipalities............................  Publicly owned treatment
                                             works or other facilities
                                             discharging pollutants to
                                             waters of the United
                                             States.
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    This table is not exhaustive, but rather it provides a guide for 
entities that may be directly or indirectly affected by this action. 
Citizens concerned with water quality and other types of entities may 
also be interested in this rulemaking, although they might not be 
directly impacted. If you have questions

[[Page 51021]]

regarding the applicability of this action to a particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.
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    \1\ Hereafter referred to as ``states and authorized tribes.'' 
``State'' in the CWA and this document refers to a state, the 
District of Columbia, the Commonwealth of Puerto Rico, the U.S. 
Virgin Islands, Guam, American Samoa, and the Commonwealth of the 
Northern Mariana Islands. ``Authorized tribes'' refers to those 
federally recognized Indian tribes with authority to administer a 
CWA WQS program.
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B. What is the statutory and regulatory history of the federal WQS 
regulation?

    The Clean Water Act (CWA or the Act)--initially enacted as the 
Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92-500) 
and subsequent amendments--determined the basic structure in place 
today for regulating pollutant discharges into waters of the United 
States. The objective of the CWA is ``to restore and maintain the 
chemical, physical, and biological integrity of the Nation's waters,'' 
and to achieve ``wherever attainable, an interim goal of water quality 
which provides for the protection and propagation of fish, shellfish, 
and wildlife and provides for recreation in and on the water'' (CWA 
sections 101(a) and 101(a)(2)).
    The CWA establishes the basis for the water quality standards (WQS 
or standards) regulation and program. CWA section 303 addresses the 
development of state and authorized tribal WQS that serve the CWA 
objective for waters of the United States. The core components of WQS 
are designated uses, water quality criteria that support the uses, and 
antidegradation requirements. Designated uses establish the 
environmental objectives for a water body and water quality criteria 
\2\ define the minimum conditions necessary to achieve those 
environmental objectives. The antidegradation requirements provide a 
framework for maintaining and protecting water quality that has already 
been achieved.
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    \2\ Under CWA section 304(a), EPA publishes recommended water 
quality criteria guidance that consists of scientific information 
regarding concentrations of specific chemicals or levels of 
parameters in water that protect aquatic life and human health. CWA 
section 303(c) refers to state and authorized tribal water quality 
criteria that are subject to EPA review and approval or disapproval.
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    CWA section 301 establishes pollutant discharge restrictions for 
point sources. Specifically, it provides that ``the discharge of any 
pollutant by any person shall be unlawful'' except in compliance with 
the terms of the Act, including industrial and municipal effluent 
limitations specified under CWA sections 301 and 304 and ``any more 
stringent limitation, including those necessary to meet water quality 
standards, treatment standards, or schedule of compliance, established 
pursuant to any [s]tate law or regulations.''
    The CWA gives states and authorized tribes discretion on how to 
control pollution from nonpoint sources. Although the CWA includes 
specific requirements for the control of pollution from certain 
discharges, state and authorized tribal WQS established pursuant to CWA 
section 303 apply to the water bodies themselves, regardless of the 
source(s) of pollution/pollutants. Thus, the WQS express the desired 
condition and level of protection for a water body, regardless of 
whether a state or authorized tribe chooses to place controls on 
nonpoint source activities, in addition to point source activities 
required to obtain permits under the CWA. Section 303(c) of the Act 
also requires that states and authorized tribes hold a public hearing 
to review their standards at least once every three years (i.e., 
triennial review), and that EPA review and approve or disapprove any 
new or revised state and authorized tribal standards. Furthermore, if 
EPA disapproves a state's or authorized tribe's WQS under CWA sections 
303(c)(3) and 303(c)(4)(A), or if the Administrator makes a 
determination under CWA section 303(c)(4)(B) that a new or revised WQS 
is necessary, EPA must propose and promulgate federal standards for a 
state or authorized tribe, unless the state or authorized tribe 
develops and EPA approves its own WQS first.
    EPA established the core of the WQS regulation in a final rule 
issued in 1983. That rule strengthened provisions that had been in 
place since 1977 and codified them as 40 CFR part 131.\3\ In support of 
the 1983 regulation, EPA issued a number of guidance documents, such as 
the Water Quality Standards Handbook (WQS Handbook),\4\ that provide 
guidance on the interpretation and implementation of the WQS regulation 
and on scientific and technical analyses that are used in making 
decisions that would impact WQS. EPA also developed the Technical 
Support Document for Water Quality-Based Toxics Control \5\ that 
provides additional guidance for implementing state and authorized 
tribal WQS.
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    \3\ 54 FR 51400 (November 8, 1983).
    \4\ First edition, December 1983; second edition, EPA 823-B-94-
005a, August 1994.
    \5\ First edition, EPA 440/4-85-032, September 1985; revised 
edition, EPA 505/2-90-001, March 1991.
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    EPA modified the 40 CFR part 131 regulation twice since 1983. 
First, in 1991 pursuant to section 518 of the Act, EPA added Sec. Sec.  
131.7 and 131.8 which extended to Indian tribes the opportunity to 
administer the WQS program and outlined dispute resolution 
mechanisms.\6\ Second, in 2000, EPA finalized Sec.  131.21(c)-(f), 
commonly known as the ``Alaska Rule,'' which specifies that new and 
revised standards adopted by states and authorized tribes and submitted 
to EPA after May 30, 2000, become applicable standards for CWA purposes 
only when approved by EPA.\7\
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    \6\ 56 FR 64893 (December 12, 1991).
    \7\ 65 FR 24641 (April 27, 2000).
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    In 1998, EPA issued an Advance Notice of Proposed Rulemaking 
(ANPRM) to discuss and invite comment on over 130 aspects of the 
federal WQS regulation and program, with the goal of identifying 
specific changes that might strengthen water quality protection and 
restoration, facilitate watershed management initiatives, and 
incorporate evolving water quality criteria and assessment science into 
state and authorized tribal WQS programs.\8\ Although EPA chose not to 
move forward with a rulemaking after the ANPRM, EPA identified a number 
of high priority issue areas for which the Agency developed guidance, 
provided technical assistance, and continued further discussion and 
dialogue to ensure more effective program implementation. This action 
is part of EPA's ongoing effort to clarify and strengthen the WQS 
program.
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    \8\ 63 FR 36742 (July 7, 1998).
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C. What environmental issues do the final changes to the federal WQS 
regulation address?

    Since EPA first established the WQS regulation in 1983, the 
regulation has acted as a powerful force to prevent pollution and 
improve water quality by providing a foundation for a broad range of 
water quality management programs. Since 1983, however, diverse and 
complex challenges have arisen, including new types of contaminants, 
pollution stemming from multiple sources, extreme weather events, 
hydrologic alteration, and climate change-related impacts. These 
challenges necessitate a more effective, flexible and practicable 
approach for the implementation of WQS and protecting water quality. 
Additionally, extensive experience with WQS implementation by states, 
authorized tribes, and EPA revealed a need to update the regulation to 
help meet these challenges.
    This rulemaking revises the requirements in six program areas: (1) 
Administrator's determination that new or revised WQS are necessary, 
(2) designated uses, (3) triennial reviews, (4) antidegradation, (5) 
WQS variances, and (6) permit compliance schedule authorizing 
provisions.
    The provisions related to designated uses help states and 
authorized tribes restore and maintain resilient and

[[Page 51022]]

robust ecosystems by requiring that states and authorized tribes 
evaluate and adopt the highest attainable use when changing designated 
uses. The rule provides clearer expectations for when an analysis of 
attainability of designated uses is or is not required. Such clarity 
allows for better and more transparent communication among EPA, states, 
authorized tribes, stakeholders and the public about the designated use 
revision process, and the appropriate level of protection necessary to 
meet the purposes of the CWA.
    This rule ensures better protection and maintenance of high quality 
waters that have better water quality than minimally necessary to 
support propagation of fish, shellfish, and wildlife, and recreation in 
and on the water. Through protection of habitat, water quality, and 
aquatic community structure, high quality waters are better able to 
resist stressors, such as atmospherically deposited pollutants, 
emerging contaminants, severe weather events, altered hydrology, or 
other effects resulting from climate change. This rule strengthens the 
evaluation used to identify and manage high quality waters and 
increases the opportunities for the public and stakeholders to be 
involved in the decision-making process. Specifically, there must be a 
transparent, public, robust evaluation before any decision is made to 
allow lowering of high quality water. Thus, this rule will lead to 
better protection of high quality waters.
    The rule addresses WQS variances and permit compliance schedules, 
which are two CWA tools which can be used where WQS are not being 
attained. The provisions related to WQS variances allow states and 
authorized tribes to address water quality challenges in a transparent 
and predictable way. The rule also includes provisions for authorizing 
the use of permit compliance schedules to ensure that a state or 
authorized tribal decision to allow permit compliance schedules 
includes public engagement and transparency. These two tools help 
states and authorized tribes focus on making incremental progress in 
improving water quality, rather than pursuing a downgrade of the 
underlying water quality goals through a designated use change, when 
the current designated use is difficult to attain.
    Lastly, the Administrator's determination and triennial review 
provisions in this rule promote public transparency and allow for 
effective communication among EPA, states, authorized tribes, and 
stakeholders to ensure WQS continue to be consistent with the CWA and 
EPA's implementing regulation. Meaningful and transparent involvement 
of the public is an important component of triennial review when making 
decisions about whether and when criteria will be adopted or revised to 
protect designated uses. The rule provides more clearly defined and 
transparent requirements, so that states and authorized tribes consider 
the latest science as reflected in the CWA section 304(a) criteria 
recommendations, and the public understands the decisions made.

D. How was this final rule developed?

    In developing this rule, EPA considered the public comments and 
feedback received from stakeholders. EPA provided a 120-day public 
comment period after the proposed rule was published in the Federal 
Register on September 4, 2013.\9\ In addition, EPA held two public 
webinars, a public meeting, and a tribal consultation to discuss the 
contents of the proposed rule and answer clarifying questions in order 
to allow the public to submit well-informed comments.
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    \9\ See Water Quality Standards Regulatory Clarifications, 78 FR 
54517 (September 4, 2013).
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    Over 150 organizations and individuals submitted comments on a 
range of issues. EPA also received 2,500 letters from individuals 
associated with mass letter writing campaigns. Some comments addressed 
issues beyond the scope of the proposed rulemaking. EPA did not expand 
the scope of the rulemaking or make regulatory changes to address the 
substance of these comments. In each section of this preamble, EPA 
discusses certain public comments so that the public is fully aware of 
its position. For a full response to these and all other comments, see 
EPA's Response to Comments document in the official public docket.
    In addition, EPA met with all stakeholders who requested time to 
discuss the contents of the proposed rule. Such discussions occurred 
with members of state and tribal organizations and the environmental 
community. Records of each meeting are included in the official public 
docket.

E. When does this action take effect?

    This regulation is effective October 20, 2015. For judicial review 
purposes, this rule is promulgated as of 1 p.m. EST (Eastern Standard 
Time) on the effective date, which will be 60 days after the date of 
publication of the rule in the Federal Register.
    States and authorized tribes are subject to the requirements of 
this final rule on the effective date of the rule. EPA's expectation is 
that, where a new or revised requirement necessitates a change to state 
or authorized tribal WQS, such revisions will occur within the next 
triennial review that the state or authorized tribe initiates after 
publication of the rule.
    As a general matter, when EPA reviews new or revised state or 
authorized tribal WQS it reviews the provisions to determine whether 
they are consistent with the CWA and regulation applicable at the time 
of EPA's review. However, for a short period of transition, EPA will 
review the provisions and approve or disapprove based on whether they 
are consistent with the CWA and the relevant part 131 regulation that 
is in effect prior to the final rule's effective date if (1) they were 
submitted before the effective date of this final rule or (2) if a 
state or authorized tribe has held its public hearing(s) and the public 
comment period has closed before the effective date of this rule and 
the state or authorized tribe has submitted the new or revised WQS 
within nine months of the effective date of this final rule. This 
approach is reasonable for the transition period because EPA recognizes 
that states and authorized tribes may have invested a significant 
amount of resources drafting new or revised WQS for the public to 
comment on without the benefit of knowing EPA's final rule requirements 
and the state or authorized tribe may not have had sufficient notice to 
alter the WQS prior to submission to EPA. It would be inefficient and 
unfair for the state or authorized tribe to have to re-propose and re-
start the rulemaking process when it can address the issue in the next 
triennial review consistent with the final rule. In addition, changing 
the applicable federal standards that will be basis of EPA's review 
after the public has put in the effort to provide constructive comments 
to the state or authorized tribe would be inefficient and could render 
the comments obsolete. Nine months is a reasonable timeframe to 
accommodate states and authorized tribes that have legislative 
processes such that new or revised WQS cannot be submitted to EPA until 
the legislature has passed the regulation at its soonest legislative 
session after close of the public comment period. Except for the 
circumstances outlined in this paragraph regarding the transition 
period, EPA will work with states and authorized tribes to ensure that 
new or revised WQS meet the requirements of the final rule.
    In the event that a court sets aside any portion of this rule, EPA 
intends for the remainder of the rule to remain in effect.

[[Page 51023]]

II. Rule Revisions Addressed in This Rule

    EPA provides a comparison document showing the revisions made by 
this final rule, and a second document showing the revisions made 
between the proposed and final rule. EPA has posted both documents at 
http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm.

A. Administrator's Determinations That New or Revised WQS Are Necessary

What does this rule provide and why?
    Open communication among states, tribes and EPA facilitates the 
sharing of information to ensure that WQS continue to adequately 
protect waters as new challenges arise. However, the public has 
occasionally mistaken such communication from EPA for a 
``determination'' by the Administrator that new or revised WQS are 
necessary under CWA section 303(c)(4)(B) (hereafter referred to as 
``Administrator's determination'').\10\
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    \10\ A listing of Administrator's determinations that new or 
revised WQS are necessary to meet the requirements of the CWA 
pursuant to section 303(c)(4)(B) can be found at: http://water.epa.gov/scitech/swguidance/standards/wqsregs.cfm#federal under 
the heading ``Federal Clean Water Act Determinations that New or 
Revised Standards Are Necessary.'' EPA intends to post future 
Administrator's determinations pursuant to CWA section 303(c)(4)(B) 
to its Web site.
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    With the clarification provided by this rule, stakeholders and the 
public can readily distinguish Administrator's determinations from 
routine EPA communications on issues of concern and recommendations 
regarding the scope and content of state and authorized tribal WQS. 
This rule minimizes the potential for stakeholders to misunderstand 
EPA's intent with its communications and allows EPA to provide direct 
and transparent feedback. It will also preserve limited resources that 
would otherwise be spent resolving the confusion through litigation.
    An Administrator's determination is a powerful tool, and this rule 
ensures that it continues to be used purposefully and thoughtfully. 
This rule contains two requirements related to an Administrator's 
determination at Sec.  131.22(b). The first requirement provides that, 
in order for a document to constitute an Administrator's determination, 
it must be signed by the Administrator or duly authorized delegate. The 
second requirement is that such a determination must include a 
statement that the document is an Administrator's determination for 
purposes of section 303(c)(4)(B) of the Act. This requirement makes 
clear that this provision applies to Administrator's determinations 
made under CWA section 303(c)(4)(B) rather than determinations made 
under CWA section 303(c)(4)(A).
    Section 303(c)(4) of the Act provides two different scenarios under 
which the Administrator has the authority to ``promptly prepare and 
publish proposed regulations setting forth a revised or new water 
quality standard for the navigable waters involved'' following some 
sort of determination. Section 303(c)(4)(A) of the Act gives EPA the 
authority to propose regulations where states or authorized tribes have 
submitted new or revised WQS that the Administrator ``determines'' are 
not consistent with the Act. In this instance, EPA disapproves new or 
revised WQS and specifies the changes necessary to meet CWA 
requirements. If a state or authorized tribe fails to adopt and submit 
the necessary revisions within 90 days after notification of the 
disapproval determination, EPA must promptly propose and promulgate 
federal WQS as specified in CWA section 303(c)(4)(A) and 40 CFR 
131.22(a). This action does not address or affect this authority.
    Absent state or authorized tribal adoption or submission of new or 
revised WQS, section 303(c)(4)(B) of the CWA gives EPA the authority to 
determine that new or revised WQS are necessary to meet the 
requirements of the Act. Once the Administrator makes such a 
determination, EPA must promptly propose regulations setting forth new 
or revised WQS for the waters of the United States involved, and must 
then promulgate such WQS, unless a state or authorized tribe adopts and 
EPA approves such WQS first.
    Commenters expressed concern that the proposed rule was not clear 
with respect to which of these authorities was addressed in this rule. 
EPA's final rule makes clear that these requirements only refer to 
Administrator's determinations under CWA section 303(c)(4)(B).
    Based on comments, EPA reviewed the use of the term ``states'' 
throughout the regulation and found that, in Sec.  131.22(b), this term 
did not accurately describe the scope of waters for which the CWA 
provides authority to the EPA Administrator. Thus, consistent with CWA 
section 303(c)(4), this rule provides that the Administrator may 
propose and promulgate a regulation applicable to one or more 
``navigable waters,'' as that term is defined in CWA section 502(7) 
after determining that new or revised WQS are necessary to meet the 
requirements of the CWA. Consistent with the statute's plain language, 
this authority applies to all navigable waters located in any state or 
in any area of Indian country.\11\
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    \11\ Indian country is defined at 18 U.S.C. 1151. A prior 
example of federally promulgated WQS in Indian country can be found 
at 40 CFR 131.35, federally promulgated WQS for the Colville 
Confederated Tribes Indian Reservation (54 FR 28625, July 6, 1989).
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What did EPA consider?
    EPA considered finalizing the revision to Sec.  131.22(b) as 
proposed. However, EPA decided it was important to clarify that this 
provision only addresses Administrator's determinations made pursuant 
to section 303(c)(4)(B) of the Act, which was not clear given the 
comments received. EPA also considered foregoing revisions to Sec.  
131.22(b) altogether. However, this option would not meet EPA's policy 
objective, described previously, which many commenters supported.
What is EPA's position on certain public comments?
    Some commenters requested that EPA clarify whether this revision 
will affect the petition process under section 553(e) of the 
Administrative Procedure Act (APA) (5 U.S.C. 553(e)). This action does 
not affect the public's ability to petition EPA to issue, amend, or 
repeal a rule. Nor does this action affect the Agency's obligations for 
responding to an APA petition or the ability of a petitioner to 
challenge the Agency for unreasonable delay in responding to a 
petition. In the event that the Administrator grants a petition for WQS 
rulemaking and makes an Administrator's determination that new or 
revised WQS are necessary, this provision does not affect the 
obligation the Agency has to promptly propose and promulgate federal 
WQS.
    Some commenters requested that EPA clarify how the Administrator 
delegates authority. The laws, Executive Orders, and regulations that 
give EPA its authority typically, but not always, indicate that ``the 
Administrator'' shall or may exercise certain authorities. In order for 
other EPA management officials to act on behalf of the Administrator, 
the Administrator must delegate the authority granted by Congress or 
the Executive Branch. The Administrator may do so by regulation or 
through the Agency's delegation process by signing an official letter 
that is then maintained as a legal record of authority.

B. Designated Uses

What does this rule provide and why?
    CWA section 303(c)(2)(A) requires that new or revised WQS shall 
consist

[[Page 51024]]

of designated uses and water quality criteria based on such uses. It 
also requires that such WQS shall protect the public health or welfare, 
enhance the quality of the water, and serve the purposes of the Act. 
Section 101(a) of the CWA provides that the ultimate objective of the 
Act is to restore and to maintain the chemical, physical, and 
biological integrity of the Nation's waters. The national goal in CWA 
section 101(a)(2) is water quality that provides for the protection and 
propagation of fish, shellfish, and wildlife and for recreation in and 
on the water ``wherever attainable.'' EPA's WQS regulation at 40 CFR 
part 131, specifically Sec. Sec.  131.10(j) and (k), interprets and 
implements these provisions through requirements that WQS protect the 
uses specified in CWA section 101(a)(2) unless states and authorized 
tribes show those uses are unattainable through a use attainability 
analysis (UAA) consistent with EPA's regulation, effectively creating a 
rebuttable presumption of attainability.\12\ This underlying 
requirement remains unchanged by this rule. EPA discussed the 1983 
requirements and the rebuttable presumption in the preamble to the 
proposed rule as background discussion of the existing regulatory 
requirements. The revisions to Sec.  131.10 establish the additional 
requirement to adopt the highest attainable use (HAU) after 
demonstrating that CWA section 101(a)(2) uses are not attainable.
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    \12\ EPA's 1983 regulation and ``the rebuttable presumption 
stemming therefrom'' have been upheld as a ``permissible 
construction of the statute'' (Idaho Mining Association v. Browner, 
90 F. Supp. 2d 1078, 1097-98 (D. Idaho 2000)).
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    CWA section 303(c)(2)(A) also requires states and authorized tribes 
to establish WQS ``taking into consideration their use and value'' for 
a number of purposes, including those addressed in section 101(a)(2) of 
the Act. EPA's final 1983 regulation at Sec.  131.10(a) implements this 
provision by requiring that the ``[s]tate must specify appropriate 
water uses to be achieved and protected'' and that the ``classification 
of the waters of the [s]tate 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.''
    The revisions to the designated use requirements improve the 
process by which states and authorized tribes designate and revise uses 
to better help restore and maintain resilient water quality and robust 
aquatic ecosystems. The revisions reduce potential confusion and 
conflicting interpretations of the regulatory requirements for 
establishing designated uses that can hinder environmental progress. 
Designated uses drive state and authorized tribal criteria development 
and water quality management decisions. Therefore, clear and accurate 
designated uses are essential in maintaining the actions necessary to 
restore and protect water quality and to meet the goals and objectives 
of the CWA.
    The CWA distinguishes between two broad categories of uses: uses 
specified in section 101(a)(2) of the Act and uses specified in section 
303(c)(2) of the Act. For the purposes of this final rule, the phrase 
``uses specified in section 101(a)(2) of the Act'' refers to uses that 
provide for the protection and propagation of fish,\13\ shellfish, and 
wildlife, and recreation in and on the water, as well as for the 
protection of human health when consuming fish, shellfish, and other 
aquatic life. A ``sub-category of a use specified in section 101(a)(2) 
of the Act'' refers to any use that reflects the subdivision of uses 
specified in section 101(a)(2) of the Act into smaller, more homogenous 
groups for the purposes of reducing variability within the group.\14\ A 
``non-101(a)(2) use'' is a use that is not related to the protection or 
propagation of fish, shellfish, wildlife or recreation in or on the 
water. Non-101(a)(2) uses include those listed in CWA section 
303(c)(2), but not those listed in CWA section 101(a)(2), including use 
for public water supply, agriculture, industry, and navigation.
---------------------------------------------------------------------------

    \13\ To achieve the CWA's goal of ``wherever attainable . . . 
protection and propagation of fish . . . '' all aquatic life, 
including aquatic invertebrates, must be protected because they are 
a critical component of the food web.
    \14\ A sub-category of a use specified in section 101(a)(2) of 
the Act is not necessarily less protective than a use specified in 
section 101(a)(2) of the Act. For example, a cold water aquatic life 
use is considered a use sub-category, but provides ``for the 
protection and propagation of fish, shellfish and wildlife,'' 
consistent with CWA section 101(a)(2). On the other hand, a 
secondary contact recreation use (i.e., a use, such as wading or 
boating, where there is a low likelihood of full body immersion in 
water or incidental ingestion of water) is considered a use sub-
category, but does not provide ``for recreation in and on the 
water,'' consistent with CWA section 101(a)(2).
---------------------------------------------------------------------------

    For uses specified in section 101(a)(2) of the Act, this rule 
clarifies when a UAA is and is not required. This rule also makes clear 
that once a state or authorized tribe has rebutted the presumption of 
attainability by demonstrating through a required UAA that a use 
specified in section 101(a)(2) of the Act is not attainable, it must 
adopt the HAU, as defined in this rule. The HAU requirement supports 
adoption of states' and authorized tribes' WQS to enhance the quality 
of the water and to serve the purposes of the Act, including ensuring 
water quality that provides for uses described in CWA section 101(a)(2) 
where attainable and to restore and maintain the chemical, physical and 
biological integrity of the Nation's waters.
    For non-101(a)(2) uses, this rule provides that a UAA is not 
required when a state or authorized tribe removes or revises a non-
101(a)(2) use, but clarifies that states and authorized tribes must 
still submit documentation consistent with CWA section 303(c)(2)(A) to 
support the state or authorized tribe's action. This requirement 
recognizes that states' and authorized tribes' decisions about non-
101(a)(2) uses must be consistent with the statute and transparent to 
the public and EPA. This rule also provides a regulatory definition for 
a non-101(a)(2) use at Sec.  131.3(q). Non-101(a)(2) uses are separate 
and distinct from uses specified in CWA section 101(a)(2) and sub-
categories of such uses.
    To clarify when a UAA is and is not required, this rule revises 
Sec.  131.10(g) and (j) so that when the provisions are read together, 
it is clear that the factors at Sec.  131.10(g) are only required to be 
considered when the state or authorized tribe must conduct a UAA under 
Sec.  131.10(j). In addition, this rule revises Sec.  131.10(k) into 
new Sec.  131.10(k)(1) and (2) to eliminate a possible contradiction 
with Sec.  131.10(j)(2), as described in the preamble to the proposed 
rule.\15\
---------------------------------------------------------------------------

    \15\ See 78 FR 54525 (September 4, 2013).
---------------------------------------------------------------------------

    Section 131.10(j) describes when a UAA is required. Section 
131.10(k) specifies when a UAA is not required. Further, the definition 
of a UAA at Sec.  131.3(g) says that a UAA ``is a structured scientific 
assessment of the factors affecting the attainment of the use which may 
include physical, chemical, biological, and economic factors as 
described in Sec.  131.10(g).'' Section 131.10(g) provides that states 
and authorized tribes may remove a designated use if they can 
demonstrate that attaining a designated use is not feasible because of 
one of six specified factors.
    EPA revises Sec.  131.10(j)(1) to clarify that a UAA is required 
whenever a state or authorized tribe designates uses for the first time 
that do not include the uses specified in section 101(a)(2) of the Act. 
Section 131.10(j)(1) also clarifies that a UAA is required where a 
state or authorized tribe has previously designated uses that do not 
include the

[[Page 51025]]

uses specified in section 101(a)(2) of the Act.\16\ EPA revises Sec.  
131.10(j)(2) to clarify that a UAA is required when removing or 
revising a use specified in section 101(a)(2) of the Act as well as 
when removing or revising a sub-category of such a use. These revisions 
also clarify that when adopting a sub-category of a use specified in 
section 101(a)(2) of the Act with less stringent criteria, a UAA is 
only required when the criteria are less stringent than the previously 
applicable criteria. EPA made corresponding revisions to Sec.  
131.10(g) to explicitly reference Sec.  131.10(j). This rule also 
includes editorial changes to Sec.  131.10(g) that are not substantive 
in nature. Lastly, EPA establishes a new Sec.  131.10(k)(1) and (2) to 
explain when a UAA is not required.
---------------------------------------------------------------------------

    \16\ This provision includes situations where a state or 
authorized tribe adopts for the first time, or previously 
designated, only non-101(a)(2) uses.
---------------------------------------------------------------------------

    To ensure that states and authorized tribes adopt WQS that continue 
to serve the Act's goal of water quality that provides for the uses 
specified in section 101(a)(2) of the CWA to the extent attainable and 
enhance the quality of the water, this rule revises Sec.  131.10(g) to 
provide that where states and authorized tribes adopt new or revised 
WQS based on a required UAA, they must adopt the HAU as defined at 
Sec.  131.3(m). These new requirements make clear that states and 
authorized tribes may remove unattainable uses, but they must retain 
and designate the attainable use(s). The final regulation does not 
prohibit states and authorized tribes from removing a designated use 
specified in CWA section 101(a)(2) or a sub-category of such a use, 
altogether, where demonstrated to be unattainable. For example, a state 
or authorized tribe may remove an aquatic life use if it can 
demonstrate through a UAA that no aquatic life use or sub-category of 
aquatic life use is attainable. EPA expects such situations to be rare; 
however to clarify that this outcome is possible, EPA adds a sentence 
to the definition of HAU at Sec.  131.3(m) to make explicit that where 
the state or authorized tribe demonstrates the relevant use specified 
in section 101(a)(2) of the Act and sub-categories of such a use are 
not attainable, there is no required HAU to be adopted. If a state or 
authorized tribe removes the designated use, altogether, and in the 
same action adopts another designated use in a different broad use 
category (e.g., agricultural use, recreational use), it may appear as 
though the state or authorized tribe intends the newly adopted use to 
be the HAU. In fact, this is a separate state or tribal decision in the 
same rulemaking.
    The concept of HAU is fundamental to the WQS program. Adopting a 
use that is less than the HAU could result in the adoption of water 
quality criteria that inappropriately lower water quality and could 
adversely affect aquatic ecosystems and the health of the public 
recreating in and on such waters. For example, a state or authorized 
tribe may be able to demonstrate that a use supporting a particular 
class of aquatic life is not attainable. However, if some less 
sensitive aquatic organisms are able to survive at the site under 
current or attainable future conditions, the state's or authorized 
tribe's WQS are not continuing to serve the goals of the CWA by 
removing the aquatic life use designation and applicable criteria 
altogether without adopting an alternate CWA section 101(a)(2) use or 
sub-category of such a use that is feasible to attain, and the criteria 
that protect that use. EPA's regulation at Sec. Sec.  131.5(a)(2), 
131.6(c), and 131.11(a) explicitly requires states and authorized 
tribes to adopt water quality criteria that protect designated uses.
    Commenters expressed concern that the proposed definition of HAU 
used overly subjective terminology that would make it difficult for 
states and authorized tribes to adopt an HAU that would not be 
challenged by stakeholders. The definition of HAU at Sec.  131.3(m) 
includes specific terms to ensure that the resulting HAU is clear to 
states, authorized tribes, stakeholders and the public.
    First, the word ``modified'' makes clear that when adopting the 
HAU, the state or authorized tribe is adopting a different use within 
the same broad CWA section 101(a)(2) use category, if any such use is 
attainable. For example, if a state or authorized tribe removes a warm 
water aquatic life use, then the HAU is a modified version of the warm 
water aquatic life use, such as a ``limited warm water aquatic life 
use.'' The definition makes clear that states and authorized tribes are 
not required to determine whether one broad use category is better than 
another (e.g., to determine that a recreation use is better than an 
aquatic life use).
    Second, EPA adds the phrase ``based on the evaluation of the 
factor(s) in Sec.  131.10(g) that preclude(s) attainment of the use and 
any other information or analyses that were used to evaluate 
attainability'' to the final HAU definition to be clear that the HAU is 
the attainable use that results from the process of determining what is 
not attainable. For example, where the state or authorized tribe 
demonstrates that a use cannot be attained due to substantial and 
widespread economic and social impacts, the state or authorized tribe 
may then determine the HAU by considering the use that is attainable 
without incurring costs that would cause a substantial and widespread 
economic and social impact consistent with Sec.  131.10(g)(6). Although 
the definition continues to include the terms ``highest'' and ``closest 
to,'' which some commenters said were subjective terms, the new 
definition does not necessarily mean that the use with the most 
numerically stringent criteria must be designated as the HAU. The CWA 
does not require states and authorized tribes to adopt designated uses 
to protect a level beyond what is naturally occurring in the water 
body. Therefore, a state's or authorized tribe's determination of the 
HAU must take into consideration the naturally expected condition for 
the water body or waterbody segment. For example, Pacific Northwest 
states provide specific levels of protection for different life stages 
of salmonids. While the different life stages require different 
temperature criteria, the designated use with the most numerically 
stringent temperature criterion may not be required under Sec.  
131.11(a) to protect the HAU, if the life stage that temperature 
criterion protects does not naturally occur in that water body or 
waterbody segment.
    When conducting a UAA and soliciting input from the public, states 
and authorized tribes need to consider not only what is currently 
attained, but also what is attainable in the future after achievable 
gains in water quality are realized. EPA recommends that such a 
prospective analysis involve the following:
     Identifying the current and expected condition for a water 
body;
     Evaluating the effectiveness of best management practices 
(BMPs) and associated water quality improvements;
     Examining the efficacy of treatment technology from 
engineering studies; and
     Using water quality models, loading calculations, and 
other predictive tools.
    The preamble to the proposed rule also provided several examples of 
how states and authorized tribes can articulate the HAU. These examples 
include using an existing designated use framework, adopting a new 
statewide sub-category of a use, or adopting a new sub-category of a 
use that uniquely recognizes the limiting condition for a specific 
water body (e.g., aquatic life limited by naturally high levels of 
copper).
    One example of where a state adopted new statewide sub-categories 
to protect

[[Page 51026]]

the highest attainable use was related to a class of waters the state 
defines as ``effluent dependent waters.'' The state conducted a UAA to 
justify the removal of the aquatic life use in these waters. It was not 
feasible for these waters to attain the same aquatic life assemblage 
expected of waters assigned the statewide aquatic life use. The state 
identified the highest attainable aquatic life use for these waters and 
created two new sub-categories (effluent-dependent fisheries and 
effluent-dependent non-fish bearing waters) with criteria that are 
sufficiently protective of these uses. These EPA-approved sub-
categories reflect the aquatic life use that can be attained in these 
waters, while still protecting the effluent dependent aquatic life.
    Some commenters expressed concern with the difficulty of 
articulating a specific HAU because doing so may require additional 
analyses. Where this may be the case, an alternative method of 
articulating the HAU can be for a state or authorized tribe to 
designate for a water body a new or already established, broadly 
defined HAU (e.g., limited aquatic life use) and the criteria 
associated with the best pollutant/parameter levels attainable based on 
the information or analysis the state or authorized tribe used to 
evaluate attainability of the designated use. This is reasonable 
because the state or authorized tribe is essentially articulating that 
the HAU reflects whatever use is attained when the most protective, 
attainable criteria are achieved.
    One example where a state used this alternative method involved 
adoption of a process by which the state can tailor site-specific 
criteria to protect the highest attainable use as determined by a UAA. 
EPA approved the state's adoption of a broad ``Limited Use'' and the 
subsequent adoption of a provision to allow the development of site-
specific criteria for certain pollutants to protect that use. The 
``Limited Use'' shares the same water quality criteria as the state's 
full designated use for recreation and fish and wildlife protection 
``except for any site-specific alternative criteria that have been 
established for the water body.'' Such site-specific criteria are 
limited to numeric criteria for nutrients, bacteria, dissolved oxygen, 
alkalinity, specific conductance, transparency, turbidity, biological 
integrity, or pH. The state restricts application of the ``Limited 
Use'' to waters with human induced physical or habitat conditions that 
prevent attainment of the full designated use for recreation and fish 
and wildlife protection, and to either (1) wholly artificial waters, or 
(2) altered water bodies dredged and filled prior to November 28, 1975. 
Through this process, the state is able to articulate the HAU by 
identifying the most protective, attainable criteria that can be 
achieved.
    Where a state or authorized tribe does not already have a statewide 
use in their regulation that is protective of the HAU, the state or 
authorized tribe will need to find an approach that meets the 
requirements of the CWA and Sec.  131.10(g). States and authorized 
tribes are not limited by the examples described in this section and 
can choose a different approach that aligns with their specific needs, 
as long as their preferred approach is protective of the HAU and is 
consistent with the CWA and Sec.  131.10.\17\
---------------------------------------------------------------------------

    \17\ Section 131.10(c) provides that states and authorized 
tribes ``may adopt sub-categories of a use. . .'' (emphasis added). 
This provision generally allows states and authorized tribes to 
adopt sub-categories of the uses specified in the CWA. This rule is 
finalizing revisions to Sec.  131.10(g) to specify that when a state 
or authorized tribe conducts a UAA required by Sec.  131.10(j), and 
the state or authorized tribe revises its WQS to something other 
than a use specified in section 101(a)(2) of the Act, the state or 
authorized tribe must adopt the highest attainable modified aquatic 
life, wildlife, and/or recreation use (i.e., a sub-category of an 
aquatic life, wildlife, and/or recreation use). Where a UAA is not 
required by Sec.  131.10(j), the state or authorized tribe retains 
discretion to choose whether to adopt sub-categories of uses per 
Sec.  131.10(c).
---------------------------------------------------------------------------

    As an example of how a UAA informs the identification of the HAU, 
consider a state or authorized tribe with a designated aquatic life use 
and associated dissolved oxygen criterion. The state or authorized 
tribe determines through a UAA that a particular water body cannot 
attain its designated aquatic life use due to naturally occurring 
dissolved oxygen concentrations that prevent attainment of the use 
(i.e., the use is not attainable pursuant to Sec.  131.10(g)(1)). Such 
an analysis also shows that the low dissolved oxygen concentrations are 
not due to anthropogenic sources, but rather due to the bathymetry of 
the water body. The state or authorized tribe then evaluates what level 
of aquatic life use is attainable in light of the naturally low 
dissolved oxygen concentration, as well as any data that were used to 
evaluate attainability (e.g., biological data). The state or authorized 
tribe concludes that the naturally low dissolved oxygen concentration 
precludes attainment of the full aquatic life use, and requires an 
alternative dissolved oxygen criterion that protects the ``highest'' 
but limited aquatic life that is attainable. Once this analysis is 
complete and fully documented in the UAA, the state or authorized tribe 
would then designate the HAU and adopt criteria to protect that use.
    To clarify what is required when a state or authorized tribe adopts 
new or revised non-101(a)(2) uses, this rule finalizes a new paragraph 
(3) at Sec.  131.10(k) to specify that states and authorized tribes are 
not required to conduct a UAA whenever they wish to remove or revise a 
non-101(a)(2) use, but must meet the requirements in Sec.  131.10(a). 
This rule defines a non-101(a)(2) use at Sec.  131.3(q) as: ``any use 
unrelated to the protection and propagation of fish, shellfish, 
wildlife or recreation in or on the water.'' While the CWA specifically 
calls out the protection and propagation of fish, shellfish, and 
wildlife and recreation in and on the water as the national goal, 
wherever attainable, this does not mean that non-101(a)(2) uses are not 
important. This rule revises Sec.  131.10(a) to be explicit that where 
a state or authorized tribe is adopting new or revised designated uses 
other than the uses specified in section 101(a)(2) of the Act, or 
removing designated uses, it must submit documentation justifying how 
its consideration of the use and value of water for those uses listed 
in Sec.  131.10(a) appropriately supports the state's or authorized 
tribe's action. EPA refers to this documentation as a ``use and value 
demonstration.'' These requirements are consistent with EPA's 
previously existing regulation at Sec. Sec.  131.10(a) \18\ and 
131.6.\19\ A UAA can also be used to satisfy the requirements at Sec.  
131.10(a).
---------------------------------------------------------------------------

    \18\ Section 131.10(a) already provided that states and 
authorized tribes ``must specify appropriate water uses to be 
achieved and protected'' and that the ``classification of the waters 
of the [s]tate 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'').
    \19\ Section 131.6(a) and (b) already provided that states and 
authorized tribes must submit to EPA for review ``use designations 
consistent with the provisions of sections 101(a)(2) and 303(c)(2) 
of the Act'' and ``[m]ethods used and analyses conducted to support 
WQS revisions.''
---------------------------------------------------------------------------

    EPA encourages states and authorized tribes to work closely with 
EPA when developing a use and value demonstration. States and 
authorized tribes must consider relevant provisions in Sec.  131.10, 
including downstream protection (Sec.  131.10(b)) and existing uses of 
the water (Sec.  131.10(h)(1)). EPA recommends states and authorized 
tribes also consider a suite of other factors, including, but not 
limited to:
     Relevant descriptive information (e.g., identification of 
the use that is under consideration for removal, location of the water 
body/waterbody

[[Page 51027]]

segment, overview of land use patterns, summary of available water 
quality data and/or stream surveys, physical information, information 
from public comments and/or public meetings, anecdotal information, 
etc.),
     Attainability information (i.e., the Sec.  131.10(g) 
factors as described previously, if applicable),
     Value and/or benefits (including environmental, social, 
cultural, and/or economic value/benefits) associated with either 
retaining or removing the use, and
     Impacts of the use removal on other designated uses.
    As an example of what a use and value demonstration for a non-
101(a)(2) use can look like, consider a small water body that a state 
or authorized tribe generically designated as a public water supply as 
part of a statewide action. The state or authorized tribe decides there 
is no use and value in retaining such a use for that water body. The 
state or authorized tribe could provide the public and EPA with 
documentation that public water supply is not an existing use (e.g., 
there is no evidence that the water body was used for this purpose and 
the water quality does not support this use); the nearby population 
uses an alternative drinking water supply; and projected population 
trends suggest that the current supply is sufficient to accommodate 
future growth. States and authorized tribes must make this 
documentation available to the public prior to any public hearing, and 
submit it to EPA with the WQS revision.
What did EPA consider?
    In developing this rule, EPA considered foregoing the revisions to 
Sec.  131.10(g), (j), and (k), but this option would not clarify when a 
UAA is or is not required and thus not accomplish the Agency's 
objectives. EPA considered finalizing the revisions to Sec.  131.10(g), 
(j), and (k)(1) and (2) as proposed; however, in response to comments 
received, EPA made revisions to better accomplish its objectives.
    EPA considered foregoing the HAU requirement at Sec.  131.10(g), 
but this option would not support the adoption of WQS that continue to 
serve the purposes of the Act and enhance the quality of the water. EPA 
also considered finalizing the requirement as proposed but not 
finalizing a regulatory definition; however, the absence of a 
regulatory definition could lead to confusion and hinder environmental 
protection.
    EPA considered not specifying what is required when removing or 
revising a non-101(a)(2) use in the final rule; however, multiple 
commenters indicated that EPA's proposed rule only specified that a UAA 
is not required to remove or revise a non-101(a)(2) use and did not 
specify what is required. Given the confusion about existing 
requirements, EPA decided to make the requirement explicit in Sec.  
131.10(a) and (k)(3).
What is EPA's position on certain public comments?
    Numerous commenters disagreed with EPA's position that the 
consumption of aquatic life is a use specified in section 101(a)(2) of 
the Act and requested that EPA document the rationale for this 
position. Based on the CWA section 303(c)(2)(A) requirement that WQS 
protect public health, EPA interprets the uses under section 101(a)(2) 
of the Act to mean that not only can fish and shellfish thrive in a 
water body, but when caught, they can also be safely eaten by 
humans.\20\
---------------------------------------------------------------------------

    \20\ http://water.epa.gov/scitech/swguidance/standards/upload/2000_10_31_standards_shellfish.pdf.
---------------------------------------------------------------------------

    EPA first articulated this interpretation in the 1992 National 
Toxics Rule.\21\ For example, EPA specified that all waters designated 
for even minimal aquatic life protection (and therefore a potential 
fish and shellfish consumption exposure route) are protected for human 
health. EPA also described its interpretation in the October 2000 Human 
Health Methodology.\22\ Consistent with this interpretation, most 
states have adopted human health criteria as part of their aquatic life 
uses, as the purpose of the criteria is to limit the amount of a 
pollutant in aquatic species prior to consumption by humans. However, 
states and authorized tribes may also choose to adopt human health 
criteria as part of their recreational uses, recognizing that humans 
will consume fish and shellfish after fishing, which many states 
consider to be a recreational use. EPA leaves this flexibility to 
states and authorized tribes as long as the waters are protecting 
humans from adverse effects of consuming aquatic life, unless the state 
or authorized tribe has shown that consumption of aquatic life is 
unattainable consistent with EPA's regulation.
---------------------------------------------------------------------------

    \21\ 57 FR 60859 (December 22, 1992). See also 40 CFR 131.36.
    \22\ http://water.epa.gov/scitech/swguidance/standards/criteria/health/methodology/index.cfm; Methodology for Deriving Ambient Water 
Quality Criteria for the Protection of Human Health, see pages 4-2 
and 4-3.
---------------------------------------------------------------------------

    EPA also received comments requesting clarification on existing 
uses. EPA notes that in addressing these comments, EPA is not reopening 
or changing the regulatory provision at Sec.  131.10(h)(1). The 
proposed change to Sec.  131.10(g) simply referred back to the 
requirement that is housed in Sec.  131.10(h)(1) and was not intended 
to change requirements regarding existing uses. This is also the case 
in the final rule. The WQS regulation at Sec.  131.3(e) defines an 
existing use as ``those uses actually attained in the water body on or 
after November 28, 1975, whether or not they are included in the water 
quality standards.'' EPA provided additional clarification on existing 
uses in the background section of the proposed preamble,\23\ as well as 
in a September 2008 letter from EPA to the State of Oklahoma.\24\ 
Specifically, EPA explained that existing uses are known to be 
``actually attained'' when the use has actually occurred and the water 
quality necessary to support the use has been attained. EPA recognizes, 
however, that all the necessary data may not be available to determine 
whether the use actually occurred or the water quality to support the 
use has been attained. When determining an existing use, EPA provides 
substantial flexibility to states and authorized tribes to evaluate the 
strength of the available data and information where data may be 
limited, inconclusive, or insufficient regarding whether the use has 
occurred and the water quality necessary to support the use has been 
attained. In this instance, states and authorized tribes may decide 
that based on such information, the use is indeed existing.
---------------------------------------------------------------------------

    \23\ 78 FR 54523 (September 4, 2013).
    \24\ http://water.epa.gov/scitech/swguidance/standards/upload/Smithee-existing-uses-2008-09-23.pdf.
---------------------------------------------------------------------------

    Some commenters expressed concern that this interpretation supports 
the removal of a designated use in a situation where the use has 
actually occurred but the water quality necessary to protect the use 
has never been attained, as well as in a situation where the water 
quality has been attained but the use has not actually occurred. Such 
an interpretation may be contrary to a state's or authorized tribe's 
environmental restoration efforts or water quality management goals. 
For example, a state or authorized tribe may designate a highly 
modified water body for primary contact recreation even though the 
water quality has never been attained to support such a use. In this 
situation, if the state or authorized tribe exercises its discretion to 
recognize such an existing use, then consistent with EPA's regulation 
the designated use may not be removed.

[[Page 51028]]

    If a state or authorized tribe chooses not to recognize primary 
contact recreation as an existing use in this same situation, the state 
or authorized tribe still must conduct a UAA to remove the primary 
contact use. The state or authorized tribe may only remove the primary 
contact recreation use if the use is not an existing use or if more 
stringent criteria are being added; the use cannot be attained by 
implementing effluent limits required under sections 301(b) and 306 of 
the Act and by implementing cost-effective and reasonable best 
management practices for nonpoint source control (Sec.  131.10(h)(1) 
and(2)); and the state or authorized tribe can demonstrate that one of 
the factors listed at Sec.  131.10(g) precludes attainment of the 
primary contact recreation use. The combination of all the requirements 
at Sec.  131.10 ensures that states and authorized tribes designate 
uses consistent with the goals of the Act unless the state or 
authorized tribe has demonstrated that such a use is not attainable. It 
also requires states and authorized tribes to maintain uses that have 
actually been attained.

C. Triennial Reviews

What does this rule provide and why?
    The CWA and EPA's implementing regulation require states and 
authorized tribes to hold, at least once every three years, a public 
hearing for the purpose of reviewing applicable WQS (i.e. a triennial 
review). The CWA creates a partnership between states and authorized 
tribes, and EPA, by assigning states and authorized tribes the primary 
role of adopting WQS (CWA sections 101(b) and 303), and EPA the 
oversight role of reviewing and approving or disapproving state and 
authorized tribal WQS (CWA section 303(c)). Consistent with this 
partnership, the statute also assigns EPA the role of publishing 
national recommended criteria to assist states and authorized tribes in 
establishing water quality criteria in their WQS (CWA section 
304(a)(1)). States and authorized tribes have several options for 
developing and adopting chemical, physical and biological criteria. 
They may use EPA's CWA section 304(a) criteria recommendations, modify 
EPA's CWA section 304(a) criteria recommendations to reflect site-
specific conditions, or establish criteria using other scientifically 
defensible methods. Ultimately, states and authorized tribes must adopt 
criteria that are scientifically defensible and protective of the 
designated use to ensure that WQS continue to ``protect the public 
health or welfare, enhance the quality of water and serve the purposes 
of'' the Act (CWA section 303(c)(2)(A)).
    In some cases, states and authorized tribes do not transparently 
communicate with the public their consideration of EPA's CWA section 
304(a) criteria recommendations when deciding whether to revise their 
WQS. As a result, the public may be led to believe that states and 
authorized tribes are not considering some of the latest science that 
is reflected in EPA's new or updated CWA section 304(a) criteria 
recommendations. To ensure public transparency and clarify existing 
requirements, the final rule contains two revisions to the triennial 
review requirements at 40 CFR 131.20(a). First, the rule requires that 
if states and authorized tribes choose not to adopt new or revised 
criteria during their triennial review for any parameters for which EPA 
has published new or updated criteria recommendations under CWA section 
304(a), they must explain their decision when reporting the results of 
their triennial review to EPA under CWA section 303(c)(1) and 40 CFR 
131.20(c). Second, the rule clarifies the ``applicable water quality 
standards'' that states and authorized tribes must review triennially.
    The first revision addresses the role of EPA's CWA section 304(a) 
criteria recommendations in triennial reviews. While states and 
authorized tribes are not required to adopt EPA's CWA section 304(a) 
criteria recommendations, they must consider them. EPA continues to 
invest significant resources to examine evolving science for the 
purpose of updating existing and developing new CWA section 304(a) 
criteria recommendations to help states and authorized tribes meet the 
requirements of the Act. Those recommendations are based on data and 
scientific judgments about pollutant concentrations and environmental 
or human health effects.\25\
---------------------------------------------------------------------------

    \25\ EPA's compilation of national water quality criteria 
recommendations, published pursuant to CWA section 304(a), can be 
found at: http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm.
---------------------------------------------------------------------------

    EPA's proposed rule, requiring states and authorized tribes to 
``consider'' EPA's new or updated CWA section 304(a) criteria 
recommendations, raised several commenter questions and concerns about 
how states and authorized tribes were to ``document'' such 
consideration.
    Commenters also expressed concern that EPA was overstepping its 
authority by dictating how states and authorized tribes conduct their 
triennial reviews and by requiring states and authorized tribes to 
adopt EPA's CWA section 304(a) criteria recommendations. This rule 
focuses on how a state or authorized tribe explains its decisions to 
EPA (and the public) rather than on how the state or authorized tribe 
conducts its review. The CWA section 304(a) criteria are national 
recommendations, and states or authorized tribes may wish to consider 
site-specific physical and/or chemical water body characteristics and/
or varying sensitivities of local aquatic communities. While states and 
authorized tribes are not required to adopt the CWA section 304(a) 
criteria recommendations, they are required under the Act and EPA's 
implementing regulations to adopt criteria that protect applicable 
designated uses and that are based on sound scientific rationale. Since 
EPA revises its CWA section 304(a) recommendations periodically to 
reflect the latest science, it is important that states and authorized 
tribes consider EPA's new or updated recommendations and explain any 
decisions on their part to not incorporate the latest science into 
their WQS.
    An important component of triennial reviews is meaningful and 
transparent involvement of the public and intergovernmental 
coordination with local, state, federal, and tribal entities. 
Communication with EPA (and the public) about these decisions provides 
opportunities to assist states and authorized tribes in improving the 
scientific basis of its WQS and can build support for state and 
authorized tribal decisions. Such coordination ultimately increases the 
effectiveness of the state and authorized tribal water quality 
management processes. Following this rulemaking, when states and 
authorized tribes conduct their next triennial review they must provide 
an explanation for why they did not adopt new or revised criteria for 
parameters for which EPA has published new or updated CWA section 
304(a) criteria recommendations since May 30, 2000.\26\ During the 
triennial reviews that follow, states and authorized tribes must do the 
same for criteria related to parameters for which EPA has published CWA 
section 304(a) criteria recommendations since the states' or authorized 
tribes' most recent triennial review. This requirement applies 
regardless of whether new or updated CWA section 304(a) criteria 
recommendations are

[[Page 51029]]

more stringent or less stringent than the state's or authorized tribe's 
applicable criteria because all stakeholders should know how the state 
or authorized tribe considered the CWA section 304(a) criteria 
recommendations when determining whether to revise their own WQS 
following a triennial review. A state's or authorized tribe's 
explanation may be situation-specific and could involve consideration 
of priorities and resources. EPA will not approve or disapprove this 
explanation pursuant to CWA section 303(c) nor will the explanation be 
used to disapprove new or revised WQS that otherwise meet the 
requirements of the CWA. Rather, it will inform both the public and EPA 
of the state's or authorized tribe's plans with respect to adopting new 
or revised criteria in light of the latest science. EPA strongly 
encourages states and authorized tribes to include their explanation on 
a publically accessible Web site or some other mechanism to inform the 
public of their decision.
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    \26\ WQS adopted and submitted to EPA by states and authorized 
tribes on or after May 30, 2000, must be approved by EPA before they 
become effective for CWA purposes, including the establishment of 
water quality-based effluent limits or development of total maximum 
daily loads (40 CFR 131.21, 65 FR 24641, April 27, 2000).
---------------------------------------------------------------------------

    The second revision addresses confusion expressed in public 
comments regarding the meaning of Sec.  131.20(a) so that states, 
authorized tribes and the public are clear on the scope of WQS to be 
reviewed during a triennial review. By not addressing this issue 
directly in the proposal, EPA may have inadvertently created ambiguity 
by implying that the only criteria states and authorized tribes need to 
re-examine during a triennial review are those criteria related to the 
parameters for which EPA has published new or updated CWA section 
304(a) criteria recommendations. However, EPA's intent was not to 
qualify the initial sentence in Sec.  131.20(a) regarding ``applicable 
water quality standards'' (which are all WQS either approved or 
promulgated by EPA for a state or tribe) but to supplement it by adding 
more detail regarding the triennial review of any and all existing 
criteria established pursuant to 40 CFR 131.11. Thus, the final rule 
clarifies what the regulation means by ``applicable water quality 
standards.'' \27\
---------------------------------------------------------------------------

    \27\ EPA published the What is a New or Revised Water Quality 
Standard Under CWA 303(c)(3) Frequently Asked Questions (EPA-820-F-
12-017, October 2012) to consolidate EPA's interpretation (informed 
by the CWA, EPA's implementing regulation at 40 CFR part 131, and 
relevant case law) of what constitutes a new or revised WQS that the 
Agency has the CWA section 303(c)(3) authority and duty to approve 
or disapprove (http://water.epa.gov/scitech/swguidance/standards/upload/cwa303faq.pdf).
---------------------------------------------------------------------------

    When conducting triennial reviews, states and authorized tribes 
must review all applicable WQS adopted into state or tribal law 
pursuant to Sec. Sec.  131.10-131.15 \28\ and any federally promulgated 
WQS.\29\ Applicable WQS specifically include designated uses (Sec.  
131.10), water quality criteria (Sec.  131.11), antidegradation (Sec.  
131.12), general policies (Sec.  131.13), WQS variances (Sec.  131.14), 
and provisions authorizing the use of schedules of compliance for 
WQBELs in NPDES permits (Sec.  131.15).\30\ If, during a triennial 
review, the state or authorized tribe determines that the federally 
promulgated WQS no longer protect its waters, the state or authorized 
tribe should adopt new or revised WQS. If EPA approves such new or 
revised WQS, EPA would withdraw the federally promulgated WQS because 
they would no longer be necessary.
---------------------------------------------------------------------------

    \28\ Definitions adopted by states and authorized tribes are 
considered WQS when they are inextricably linked to provisions 
adopted pursuant to Sec. Sec.  131.10-131.15.
    \29\ Any WQS that EPA has promulgated for a state or tribe are 
found in 40 CFR part 131, subpart D. See also: http://water.epa.gov/scitech/swguidance/standards/wqsregs.cfm#proposed.
    \30\ This rule finalizes Sec.  131.14 (WQS Variances) and Sec.  
131.15 (Provisions Authorizing the Use of Schedules of Compliance 
for WQBELs in NPDES permits). For detailed discussion about these 
sections, see sections II.E and II.F of this document, respectively.
---------------------------------------------------------------------------

    Some states and authorized tribes target specific WQS during an 
individual triennial review to balance resources and priorities. The 
final rule does not affect states' or authorized tribes' discretion to 
identify such priority areas for action. However, the CWA and EPA's 
implementing regulation require the state or authorized tribe to hold, 
at least once every three years, a public hearing \31\ for the purpose 
of reviewing applicable WQS, not just a subset of WQS that the state or 
authorized tribe has identified as high priority. In this regard, 
states and authorized tribes must still, at a minimum, seek and 
consider public comment on all applicable WQS.
---------------------------------------------------------------------------

    \31\ For detailed discussion about this final rule for Sec.  
131.20(b), related to public participation, see section II.G of this 
document.
---------------------------------------------------------------------------

What did EPA consider?
    EPA considered finalizing the revision to Sec.  131.20(a) as 
proposed. However, given public commenters' confusion and concerns, as 
discussed previously, EPA ultimately rejected this option. EPA also 
considered foregoing revisions to Sec.  131.20(a) altogether. However, 
this option would not ensure that states and authorized tribes adopt 
criteria that reflect the latest science, and thus EPA rejected it.
What is EPA's position on certain public comments?
    One commenter requested a longer period than three years for states 
and authorized tribes to consider new or updated CWA section 304(a) 
criteria recommendations because it was neither reasonable nor feasible 
to conduct a comprehensive review and rulemaking in this timeframe, 
including the public participation component. Other commenters 
suggested that EPA allow triennial reviews to occur ``periodically,'' 
while some suggested that nine or 12 years would be a more appropriate 
frequency of review.
    Although EPA acknowledges the challenges (e.g., the legal and 
administrative processes, resource constraints) that states and 
authorized tribes may experience when conducting triennial reviews, the 
three-year timeframe for triennial review comes directly from CWA 
section 303(c)(1). EPA has no authority to provide a longer timeframe 
for triennial reviews.

D. Antidegradation

    One of the principal objectives of the CWA is to ``maintain the 
chemical, physical and biological integrity of the Nation's waters.'' 
\32\ Congress expressly affirmed this principle of ``antidegradation'' 
in the Water Quality Act of 1987 in CWA sections 101(a) and 
303(d)(4)(B). EPA's WQS regulation has included antidegradation 
provisions since 1983. In particular, 40 CFR 131.12(a)(2) includes a 
provision that protects ``high quality'' waters (i.e., those with water 
quality that is better than necessary to support the uses specified in 
section 101(a)(2) of the Act.)
---------------------------------------------------------------------------

    \32\ See CWA section 101(a) (emphasis added).
---------------------------------------------------------------------------

    Maintaining high water quality is critical to supporting economic 
and community growth and sustainability. Protecting high water quality 
also provides a margin of safety that will afford the water body 
increased resilience to potential future stressors, including climate 
change. Degradation of water quality can result in increased public 
health risks, higher treatment costs that must be borne by ratepayers 
and local governments, and diminished aquatic communities, ecological 
diversity, and ecosystem services. Conversely, maintaining high water 
quality can lower drinking water costs, provide revenue for tourism and 
recreation, support commercial and recreational fisheries, increase 
property values, create jobs and sustain local communities.\33\ While 
preventing degradation and maintaining a reliable source of clean water 
involves costs, it can be more effective and efficient than

[[Page 51030]]

investing in long-term restoration efforts or remedial actions.
---------------------------------------------------------------------------

    \33\ http://water.epa.gov/polwaste/nps/watershed/upload/economic_benefits_factsheet3.pdf; Economic Benefits of Protecting 
Healthy Watersheds (EPA 841-N-12-004, April 2012).
---------------------------------------------------------------------------

    This rule revises the antidegradation regulation to enhance 
protection of high quality waters and to promote consistency in 
implementation. The new provisions require states and authorized tribes 
to follow a more structured process when making decisions about 
preserving high water quality. They also increase transparency and 
opportunities for public involvement, while preserving states' and 
authorized tribes' decision-making flexibility. The revisions meet the 
objectives of EPA's proposal, although EPA made some changes to the 
regulatory language after further consideration of the Agency's policy 
objectives and in response to public comments.
    This rule establishes requirements in the following areas: 
Identification of high quality waters, analysis of alternatives, and 
antidegradation implementation methods. In addition to the substantive 
changes described in the following section, this rule also includes 
editorial changes that are not substantive in nature. For a detailed 
discussion of EPA's CWA authority regarding antidegradation, see the 
preamble to the proposed rule at 78 FR 54526 (September 4, 2013).
Identification of Waters for High Quality Water (Tier 2) Protection
What does this rule provide and why?
    Tier 2 refers to a decision-making process by which a state or 
authorized tribe decides how and how much to protect water quality that 
exceeds levels necessary to support the uses specified in Section 
101(a)(2) of the Act. The final rule at Sec.  131.12(a)(2)(i) provides 
that states and authorized tribes may identify waters for Tier 2 
protection on either a parameter-by-parameter or a water body-by-water 
body basis. The rule also specifies that, where states and authorized 
tribes identify waters on a water body-by-water body basis, states and 
authorized tribes must involve the public in any decisions pertaining 
to when they will provide Tier 2 protection, and the factors considered 
in such decisions. Further, states and authorized tribes must not 
exclude water bodies from Tier 2 protection solely because water 
quality does not exceed levels necessary to support all of the uses 
specified in CWA section 101(a)(2). This rule requires that states' and 
authorized tribes' antidegradation policies be consistent with these 
new requirements.
    States and authorized tribes typically use one of two approaches to 
identify high quality waters consistent with the CWA. States and 
authorized tribes using a parameter-by-parameter approach generally 
identify high quality waters at the time an entity proposes the 
activity that would lower water quality. Under this approach, states 
and authorized tribes identify parameters for which water quality is 
better than necessary to support the uses specified in CWA section 
101(a)(2) and provide Tier 2 protection for any such parameters. 
Alternatively, states and authorized tribes using a water body-by-water 
body approach generally identify waters that will receive Tier 2 
protection by weighing a variety of factors, in advance of any proposed 
activity. States and authorized tribes can identify some waters using a 
parameter-by-parameter approach and other waters using a water body-by-
water body approach.
    The 1983 WQS regulation did not specify which approach states and 
authorized tribes must use to identify waters for Tier 2 protection. In 
the 1998 ANPRM, EPA articulated that either approach, when properly 
implemented, is consistent with the CWA, and described advantages and 
disadvantages to both approaches. A parameter-by-parameter approach can 
be easier to implement, can be less susceptible to challenge, and can 
result in more waters receiving some degree of Tier 2 protection. The 
ANPRM also articulated: ``[t]he water body-by-water body approach, on 
the other hand, allows for a weighted assessment of chemical, physical, 
biological, and other information (e.g., unique ecological or scenic 
attributes). In this regard, the water body-by-water body approach may 
be better suited to EPA's stated vision for the [WQS] program . . . 
This approach also allows for the high quality water decision to be 
made in advance of the antidegradation review . . ., which may 
facilitate implementation. A water body-by-water body approach also 
allows [s]tates and [t]ribes to focus limited resources on protecting 
higher-value [s]tate or [t]ribal waters. The water body-by-water body 
approach can . . . preserve high quality waters on the basis of 
physical and biological attributes, rather than high water quality 
attributes alone.''
    Because the original WQS regulation did not provide specific 
requirements regarding use of the water body-by-water body approach, it 
was possible for states and authorized tribes to identify high quality 
waters in a manner inconsistent with the CWA and the intent of EPA's 
implementing regulation. In some cases, states and authorized tribes 
have used the water body-by-water body approach without documenting the 
factors that inform the decision or informing the public. For example, 
some states or authorized tribes have excluded waters from Tier 2 
protection entirely based on the fact that the water was included on a 
CWA section 303(d) list for a single parameter without allowing an 
opportunity for the public to provide input.
    This rule reaffirms EPA's support for both approaches. The new 
regulatory requirements included at Sec.  131.12(a)(2)(i) only apply to 
the water body-by-water body approach because they are unnecessary for 
the parameter-by-parameter approach. States and authorized tribes using 
the parameter-by-parameter approach provide Tier 2 protection to all 
chemical, physical, and biological parameters for which water quality 
is better than necessary to protect the uses specified in CWA section 
101(a)(2). Because the identification of waters that are high quality 
with respect to relevant parameters would occur in the context of 
allowing a specific activity, the level of protection is already 
subject to any public involvement required for that activity. For 
example, an NPDES permit writer calculating WQBELs would use available 
data and information about the water body to determine whether 
assimilative capacity exists for the relevant parameters. The state or 
authorized tribe would then provide Tier 2 protection for all 
parameters for which assimilative capacity exists. The draft permit 
would reflect the results of the Tier 2 review, hence providing an 
opportunity for public involvement.
    The requirement at Sec.  131.12(a)(2)(i) regarding public 
involvement increases the transparency of and accountability for 
states' and authorized tribes' water quality management decisions. The 
final rule is consistent with the CWA and the WQS regulation's emphasis 
on the public's role in water quality protection. A key part of a 
state's or authorized tribe's antidegradation process involves 
decisions on how to manage high water quality, a shared public 
resource. Commenters expressed concern that the proposed rule did not 
require states and authorized tribes to engage the public on decisions 
when implementing a water body-by-water body approach. Consequently, 
the public would not know the factors a state or authorized tribe 
considered in deciding that the water body did not merit Tier 2 
protection, which would limit the public's ability to provide 
constructive input during the permit's public notice and comment 
period.
    To provide for well-informed public input and to aid states and 
authorized tribes in making robust decisions, EPA

[[Page 51031]]

recommends states and authorized tribes document their evaluation of 
the Tier 2 decision, including the factors considered and how those 
factors were weighed. The case of Ohio Valley Envtl. Coalition v. 
Horinko demonstrates why it is important for states and authorized 
tribes to articulate the rationale for their decisions.\34\ In this 
case, the U.S. District Court for the Southern District of West 
Virginia considered whether the record contained sufficient evidence to 
justify EPA's approval of the state's exclusion of particular water 
bodies from Tier 2 protection. The state had classified some CWA 
section 303(d) listed waters as waters to receive Tier 2 protection, 
while it had excluded other similar waters with similar impairments 
from Tier 2 protection. The Court found the administrative record 
insufficient to support EPA's decision to approve the state's 
classification because the state's CWA section 303(d) listing was the 
only evidence related to the water quality of those river segments. The 
Court did not opine on whether, in a different factual situation, 
categorically excluding waters from Tier 2 protection based on CWA 
section 303(d) impairments would be consistent with the CWA.
---------------------------------------------------------------------------

    \34\ Ohio Valley Envtl. Coal. v. Horinko, 279 F. Supp. 2d 732, 
746-50 (S.D. W. Va. 2003).
---------------------------------------------------------------------------

    To minimize the administrative processes associated with this rule, 
EPA uses the phrase ``opportunity for public involvement'' rather than 
``public participation.'' ``Public participation'' at 40 CFR 131.20(b) 
\35\ refers to a state or authorized tribe holding a public hearing for 
the purpose of reviewing WQS. With this rule, EPA provides states and 
authorized tribes the flexibility to engage the public in a way that 
suits the state or authorized tribe and the public. For example, a 
state or authorized tribe could develop lists of waters that will and 
will not receive Tier 2 protection along with descriptions of the 
factors considered in making each of those decisions and post that 
information on its Web site. To obtain public input, the state or 
authorized tribe could share these lists during a triennial review and/
or during revision of antidegradation implementation methods. Such an 
approach has the advantage of streamlining both the decision-making and 
public involvement processes. As another example, a state could use the 
NPDES process to engage the public at the time it drafts a permit that 
would allow a lowering of water quality. The state would document the 
relevant information related to its decision in the permit fact sheet 
provided to the public and specifically request comment on its Tier 2 
protection decision.
---------------------------------------------------------------------------

    \35\ See section II.G for more information on the final rule 
change related to public participation.
---------------------------------------------------------------------------

    States and authorized tribes can provide additional avenues for 
public involvement by providing structured opportunities for the public 
to initiate antidegradation discussions. For example, a state or 
authorized tribe could provide a petition process in which citizens 
request Tier 2 protection for specific waters, and those citizens could 
provide data and information for a state's or authorized tribe's 
consideration. Also, states and authorized tribes can establish a 
process to facilitate public involvement in identifying waters as 
Outstanding National Resource Waters (ONRWs).
    An additional requirement at Sec.  131.12(a)(2)(i) provides that 
states and authorized tribes must not exclude a water body from the 
protections in Sec.  131.12(a)(2) solely because water quality does not 
exceed levels necessary to support all of the uses specified in CWA 
section 101(a)(2). For a discussion on why such an approach is 
inconsistent with the Act, see the preamble to the proposed rule at 78 
FR 54527 (September 4, 2013). Thus, when considering whether to exclude 
waters from Tier 2 protection, states and authorized tribes must 
consider the overall quality of the water rather than whether water 
quality is better than necessary for individual chemical, physical, and 
biological parameters to support all the uses specified in CWA section 
101(a)(2). The rule provides for a decision-making process where states 
and authorized tribes consider water quality and reasons to protect 
water quality more broadly. This can lead to more robust evaluations of 
the water body, and potentially more waters receiving Tier 2 
protection. To make a decision to exclude a water body from Tier 2 
protection, states and authorized tribes must identify the factors 
considered which should include factors that are rooted in the goals of 
the CWA, including the chemical, physical, and biological 
characteristics of a water body. Where states and authorized tribes 
wish to consider CWA section 303(d) listed impairments, it would be 
important that they also consider all other relevant available data and 
conduct an overall assessment of a water's characteristics. It would 
also be important that states and authorized tribes consider the public 
value of the water. This includes the water's impact on public health 
and welfare, the existing aquatic and recreational uses, and the value 
of retaining ecosystem resilience against the effects of future 
stressors, including climate change. For additional information on this 
overall assessment, see the preamble to the proposed rule at 78 FR 
54527 (September 4, 2013).
    This requirement is consistent with the proposed rule. However, to 
accurately articulate the requirement, and to remain consistent with 
Sec.  131.12(a)(2), the final rule text reflects that for a water to 
have available assimilative capacity for which to provide Tier 2 
protection, the water quality must ``exceed'' the levels necessary 
(i.e., be better than necessary) to support the uses specified in CWA 
section 101(a)(2). Commenters stated that some members of the public 
could misinterpret the phrase ``high quality waters'' in the proposal 
to include waters that meet but do not exceed the water quality 
necessary to support the uses specified in CWA section 101(a)(2). The 
final rule replaces ``high quality waters'' with the phrase ``waters 
for the protections described in (a)(2) of this section.'' The final 
rule also says waters cannot be excluded from Tier 2 protection solely 
``because water quality does not exceed levels necessary to support all 
of the uses specified in section 101(a)(2) of the Act'' instead of 
``because not all of the uses specified in CWA section 101(a)(2) are 
attained,'' as stated in the proposal.
    Where water quality is better than necessary to support all of the 
uses specified in CWA section 101(a)(2), Sec.  131.12(a)(2) requires 
states and authorized tribes to provide Tier 2 protection. Where water 
quality is not better than necessary to support all of the uses 
specified in CWA section 101(a)(2), the final rule does not require 
states and authorized tribes to provide Tier 2 protection for the water 
body. However, in instances where states and authorized tribes lack 
data and information on the water quality to make individual water body 
conclusions, EPA recommends that they provide all or a subset of their 
waters with Tier 2 protection, by default. Doing so will increase the 
probability that these waters will maintain a level of resiliency to 
future stressors.
    This rule requires states' and authorized tribes' antidegradation 
policies (which are legally binding state and authorized tribal 
provisions subject to public participation) to be consistent with the 
new requirements related to identifying waters for Tier 2 protection. 
Since states and authorized tribes must provide for public 
participation on their antidegradation policies, placing their 
requirements for identification of high quality waters in their 
antidegradation policies increases accountability and transparency. The 
proposed rule

[[Page 51032]]

articulated that states and authorized tribes must design their 
implementation methods to achieve the requirements for identifying high 
quality waters. Commenters questioned whether the proposed requirement 
for identifying high quality waters was mandatory, since the proposal 
did not require states and authorized tribes to adopt the requirement 
into their legally binding policies. Some commenters suggested 
requiring states and authorized tribes to adopt all implementation 
methods into binding provisions. While some states and authorized 
tribes find adoption of their implementation methods to be helpful, 
others view it as burdensome. EPA determined that while adopting 
implementation methods increases accountability and transparency, 
states and authorized tribes could still provide this accountability 
and transparency for identification of waters for Tier 2 protection 
without a requirement to adopt implementation methods. Therefore, the 
final rule requires antidegradation policies to be consistent with the 
provision at Sec.  131.12(a)(2)(i). States and authorized tribes have 
the discretion and flexibility to adopt antidegradation provisions that 
address other aspects of antidegradation that are not specifically 
addressed in Sec.  131.12(a). Where a state or authorized tribe chooses 
to include antidegradation implementation methods in non-binding 
guidance, the methods must be consistent with the applicable state or 
authorized tribal antidegradation requirements that EPA has approved. 
Consistent with Sec.  122.44(d)(1)(vii)(a), permits must derive from 
and comply with all applicable WQS. Otherwise, EPA could have a basis 
to object to the permits.
What did EPA consider?
    EPA considered not revising Sec.  131.12(a)(2) and continuing to 
provide no new regulatory requirements for identification of waters for 
Tier 2 protection. EPA also considered prohibiting the water body-by-
water body approach. Providing no regulatory requirements would 
continue to allow states and authorized tribes to implement a water 
body-by-water body approach that is potentially inconsistent with the 
CWA, while prohibiting the water body-by-water body approach would 
limit states' and authorized tribes' flexibility to prioritize their 
waters for Tier 2 protection. EPA rejected these options in favor of a 
more balanced approach by placing conditions on how states and 
authorized tribes use their discretion to better ensure protection of 
high quality waters.
    EPA considered finalizing the rule as proposed, without a 
requirement for public involvement in decisions about whether to 
provide Tier 2 protection to a water body; however, EPA found that 
public involvement is critical for increasing accountability and 
transparency and included the requirement in the final rule. EPA also 
considered providing for an EPA approval or disapproval action under 
CWA section 303(c) of states' and authorized tribes' decisions on 
whether to provide Tier 2 protection to each water. EPA ultimately 
decided not to include such a requirement because of concern that it 
would add more administrative and rulemaking burden for states and 
authorized tribes than EPA determined was necessary to ensure public 
involvement. EPA considered specifying precisely which waters must 
receive Tier 2 protection. However, EPA did not include such 
specificity in the rule because there are multiple ways that states and 
authorized tribes can make well-reasoned decisions on Tier 2 protection 
based on case-specific facts.
Analysis of Alternatives
What does this rule provide and why?
    The final rule at Sec.  131.12(a)(2)(ii) provides that before 
allowing a lowering of high water quality, states and authorized tribes 
must find, after an analysis of alternatives, that such a lowering is 
necessary to accommodate important economic or social development in 
the area in which the waters are located. That analysis must evaluate a 
range of non-degrading and less degrading practicable alternatives. For 
the purposes of this requirement, the final rule at Sec.  131.3(n) 
defines ``practicable'' to mean ``technologically possible, able to be 
put into practice, and economically viable.'' When an analysis 
identifies one or more such practicable alternatives, states and 
authorized tribes may only find that a lowering is necessary if one 
such alternative is selected for implementation. This rule requires 
that states' and authorized tribes' antidegradation policies must be 
consistent with these new requirements.
    Section 131.12(a)(2)(ii) requires a structured analysis of 
alternatives, which will increase transparency and consistency in 
states' and authorized tribes' decisions about high water quality. The 
new requirement makes the analysis of alternatives an integral part of 
a state's or authorized tribe's finding that degradation of high 
quality water is ``necessary.'' Such an analysis provides states and 
authorized tribes with a basis to make informed and reasoned decisions, 
assuring that degradation only occurs where truly necessary. This rule 
refers to ``analysis of alternatives'' rather than ``alternatives 
analysis'' as in the proposal. This makes clear that the analysis 
required in Sec.  131.12(a)(2)(ii) is distinct from the ``alternatives 
analysis'' required in other programs, such as the National 
Environmental Policy Act and CWA section 404 permitting.
    Section 131.12(a)(2)(ii) is consistent with the proposed rule, but 
makes clear that states' and authorized tribes' findings that a 
lowering is necessary depends on both an analysis of alternatives and 
an analysis related to economic or social development. Commenters were 
concerned that the proposed rule seemed to remove the requirement at 
Sec.  131.12(a)(2) for states and authorized tribes to consider whether 
a lowering of water quality will ``accommodate important economic or 
social development in the area in which the waters are located.''
    This rule preserves states' and authorized tribes' discretion to 
decide the order in which they satisfy these requirements. A state or 
authorized tribe can choose to first review an analysis of economic or 
social development. If it finds that the proposed lowering of water 
quality would accommodate important economic or social development, it 
can then require an analysis of alternatives to see if the lowering 
could be prevented or lessened. If, on the other hand, a state or 
authorized tribe finds that the proposed lowering of water quality 
would not accommodate important economic or social development, it 
could choose to disallow lowering of water quality and terminate the 
Tier 2 review without ever requiring an analysis of alternatives. 
Similarly, a state or authorized tribe could first choose to require an 
analysis of alternatives and then examine an analysis of economic or 
social development. In this case, if a non-degrading alternative is 
selected for implementation, the state or authorized tribe does not 
need to proceed with an analysis of economic or social development.
    Although states and authorized tribes are responsible for making a 
finding to allow a lowering of water quality based on a reasonable, 
credible, and adequate analysis of alternatives, states and authorized 
tribes themselves need not conduct the analysis of alternatives or 
select the alternative to be implemented. Commenters expressed concern 
that the proposed rule language implied that states and authorized 
tribes must perform the analysis themselves, when

[[Page 51033]]

other entities may be best positioned to analyze the alternatives. The 
final rule language allows states and authorized tribes to rely on 
analyses prepared by third parties (e.g., a permit applicant). This 
preserves appropriate flexibility for states' and authorized tribes' 
decision-makers, and can bring additional resources and expertise to 
the analysis. States and authorized tribes remain ultimately 
responsible for making findings to allow degradation and for basing 
their decisions on adequate analyses. If the state or authorized tribe 
deems an initial analysis of alternatives insufficient to support a 
finding that a lowering of high water quality is ``necessary,'' it can 
request additional analyses of alternatives from the permit applicant 
or other entities. A state or authorized tribe can also obtain 
information on common practicable alternatives appropriate for a 
proposed activity from additional existing resources.\36\
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    \36\ E.g., EPA's Municipal Technologies Web site, which presents 
technology fact sheets to assist in the evaluation of different 
technologies for wastewater (http://water.epa.gov/scitech/wastetech/mtb_index.cfm).
---------------------------------------------------------------------------

    The final rule specifies that states and authorized tribes must 
analyze ``practicable alternatives that would prevent or lessen the 
degradation,'' rather than ``non-degrading and minimally degrading 
practicable alternatives that have the potential to prevent or minimize 
the degradation,'' as proposed. While non-degrading or minimally 
degrading alternatives preserve high water quality to a greater extent, 
in cases where no minimally-degrading alternatives exist, a less 
degrading alternative will still provide a margin of protection for the 
high quality water. The final rule requires a broader, more complete 
analysis.
    To enhance clarity and provide for consistency in implementation, 
this rule finalizes a definition of the word ``practicable.'' The 
definition embodies a common sense notion of practicability--i.e., an 
alternative that can actually be implemented under the circumstances. 
Because ``practicable'' appears in other contexts related to water 
quality, the definition at Sec.  131.3(n) is only applicable for Sec.  
131.12(a)(2)(ii). This definition is consistent with the one 
articulated in the preamble to the proposed rule,\37\ but eliminates 
redundancy and omits ``at the site in question'' in response to 
commenters' concern that relocation of a proposed activity may be a 
less degrading alternative that the state or authorized tribe can 
consider.
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    \37\ See 78 FR 54528 (September 4, 2013).
---------------------------------------------------------------------------

    Section 131.12(a)(2)(ii) provides for preservation of high water 
quality by requiring a less degrading practicable alternative to be 
selected for implementation, if available, before states and authorized 
tribes may find that a lowering of water quality is necessary. This 
requirement applies even if the analysis identifies only one 
alternative. States and authorized tribes must still make a finding 
that a lowering is necessary if the analysis does not identify any 
practicable alternatives that lessen degradation. On the other hand, if 
the analysis results in choosing an alternative that avoids 
degradation, a state or authorized tribe need not make a finding. 
Regardless of the number of alternatives identified, the analysis 
should document a level of detail that reflects the significance and 
magnitude of the particular circumstances encountered, to provide the 
public with the necessary information to understand how the state or 
authorized tribe made its decision.
    EPA chose not to require implementation of the least degrading 
practicable alternative to allow states and authorized tribes the 
flexibility to balance multiple considerations. Some alternatives to 
lowering water quality can have negative environmental impacts in other 
media (e.g., air, land). For example, incinerating pollutants rather 
than discharging the pollutants to surface waters could adversely 
impact air quality and energy use, and land application of pollutants 
could have adverse terrestrial impacts. EPA recommends that states and 
authorized tribes consider cross-media impacts and, where possible, 
seek alternatives that minimize degradation of water quality and also 
minimize other environmental impacts.
    The final rule requires states' and authorized tribes' 
antidegradation policies (which are legally binding provisions subject 
to public participation) to be consistent with the new requirements 
related to analysis of alternatives. As with the provision on 
identification of waters for Tier 2 protection at Sec.  
131.12(a)(2)(i), EPA determined that antidegradation policies must be 
consistent with the federal regulation on analysis of alternatives at 
Sec.  131.12(a)(2)(ii) to increase accountability and transparency.
What did EPA consider?
    EPA considered finalizing the proposed rule without alteration. EPA 
did not choose this option in light of commenters' suggestions to 
clarify the language in order to avoid confusion as to who is 
responsible for conducting the analysis. EPA also rejected an option to 
forego any revisions related to an analysis of alternatives, as this 
would not provide clarification regarding what type of analysis 
supports states' or authorized tribes' decisions that a lowering of 
water quality is ``necessary,'' thus risking a greater loss of water 
quality.
Antidegradation Implementation Methods
What does this rule provide and why?
    The rule at Sec.  131.12(b) requires states' and authorized tribes' 
antidegradation implementation methods (whether or not those methods 
are adopted into rule) to be consistent with their antidegradation 
policies and with Sec.  131.12(a). This rule also requires states and 
authorized tribes to provide an opportunity for public involvement 
during the development and any subsequent revisions of antidegradation 
implementation methods, and to make the methods available to the 
public.
    Finally, this rule adds Sec.  131.5(a)(3) to explicitly specify 
that EPA has the authority to determine whether the states' and 
authorized tribes' antidegradation policies and any adopted 
antidegradation implementation methods \38\ are consistent with the 
federal antidegradation requirements at Sec.  131.12. This revision 
does not expand EPA's existing CWA authority, rather it ensures Sec.  
131.5 is consistent with Sec. Sec.  131.6 and 131.12.
---------------------------------------------------------------------------

    \38\ See http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm. What is a New or Revised Water Quality Standard Under 
CWA 303(c)(3) Frequently Asked Questions (EPA-820-F-12-017, October 
2012).
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    The public involvement requirement at Sec.  131.12(b) increases 
transparency, accountability, and consistency in states' and authorized 
tribes' implementation. EPA proposed a requirement that implementation 
methods be publicly available. As EPA discussed in the preamble to the 
proposed rule, CWA section 101(e) provides that ``public participation 
in the development, revision, and enforcement of any regulations, 
standard, effluent limitation, plan, or program established . . . under 
this Act shall be provided for, encouraged, and assisted . . .'' Thus, 
this rule also provides for public involvement during development or 
revision of implementation methods. A state or authorized tribe may 
decide to offer more than one opportunity to most effectively engage 
the public. States and authorized tribes can use various mechanisms to 
provide such

[[Page 51034]]

opportunities, including a public hearing, a public meeting, a public 
workshop, and different ways of engaging the public via the Internet, 
such as webinars and Web site postings. If a state or authorized tribe 
adopts antidegradation implementation methods as part of its WQS or 
other legally binding provisions, the state's or authorized tribe's own 
public participation requirements and 40 CFR part 25 and Sec.  
131.20(b) of the federal regulation, will satisfy this requirement.
    Section 131.5(a)(3) makes explicit EPA's authority to review 
states' and authorized tribes' antidegradation policies and any adopted 
antidegradation implementation methods and to determine whether those 
policies and methods are consistent with Sec.  131.12. EPA recommends 
states and authorized tribes adopt binding implementation methods to 
provide more transparency and consistency for the public and other 
stakeholders and to increase accountability. States and authorized 
tribes may find that the Continuing Planning Process provisions 
described at CWA section 303(e) and Sec.  130.5 can facilitate the 
state's or authorized tribe's establishment and maintenance of a 
process for WQS implementation consistent with the requirements of the 
final rule.
    Here, EPA clarifies the terms ``antidegradation policy'' and 
``antidegradation implementation methods.'' For the purposes of Sec.  
131.12, states' and authorized tribes' ``antidegradation policies'' 
must be adopted in rule or other legally binding form, and must be 
consistent with the requirements of Sec.  131.12(a). EPA originally 
promulgated this requirement in 1983. ``Antidegradation implementation 
methods'' refer to any additional documents and/or provisions in which 
a state or authorized tribe describes methods for implementing its 
antidegradation policy, whether or not the state or authorized tribe 
formally adopts the methods in regulation or other legally binding 
form. If a state or authorized tribe does not choose to adopt the 
entirety of its implementation methods, EPA recommends, at a minimum, 
adopting in regulation or other legally binding form any 
antidegradation program elements that substantively express the desired 
instream level of protection and how that level of protection will be 
expressed or established for such waters in the future.
What did EPA consider?
    EPA considered not adding Sec.  131.5(a)(3). EPA rejected this 
option in light of commenters' suggestions to clarify the extent of 
EPA's authority. EPA also considered not adding Sec.  131.12(b) or 
establishing Sec.  131.12(b), as proposed. However, public involvement 
in the development and implementation of states' and authorized tribes' 
antidegradation implementation methods is fundamental to meeting the 
CWA requirements to restore and maintain water quality. EPA considered 
revising the rule to require that all states and authorized tribes 
adopt the entirety of their antidegradation implementation methods in 
regulation to improve accountability and transparency, as some 
commenters suggested. EPA did not make this change because it would 
limit states' and authorized tribes' ability to easily revise their 
implementation methods in order to adapt and improve antidegradation 
protection in a timely manner. Some states and authorized tribes have 
difficulty adopting their methods because of resource constraints, 
state or tribal laws, or complex rulemaking processes. Instead of 
requiring adoption of implementation methods, the final rule achieves 
more accountability by establishing specific requirements for states' 
and authorized tribes' antidegradation policies regarding two key 
aspects of Tier 2 implementation.
What is EPA's position on certain public comments?
    Commenters requested clarification concerning whether states and 
authorized tribes must change their approaches to antidegradation to be 
consistent with the final rule. Where a state or authorized tribe 
already has established antidegradation requirements consistent with 
this rule, EPA does not anticipate the need for further changes.
    Many commenters requested clarification concerning whether the 
proposed rule affects states' and authorized tribes' ability to use de 
minimis exclusions. Some states and authorized tribes use de minimis 
exclusions to prioritize and manage limited resources by excluding 
activities from Tier 2 review if they view the activity as potentially 
causing an insignificant lowering of water quality. This allows states 
and authorized tribes to use their limited resources where it can have 
the greatest environmental impact. Although EPA did not propose any 
revisions related to defining or authorizing de minimis exclusions, 
some commenters requested that EPA finalize a rule that explicitly 
accepts them, and others asked EPA to prohibit them. Section 131.12--
including the revisions in this rule--does not address de minimis 
exclusions. States and authorized tribes can use de minimis exclusions, 
as long as they use them in a manner consistent with the CWA and Sec.  
131.12.
    The DC Circuit explained in Ala. Power v. Costle that under the de 
minimis doctrine, ``[c]ategorical exemptions may also be permissible as 
an exercise of agency power, inherent in most statutory schemes, to 
overlook circumstances that in context may fairly be considered de 
minimis.'' \39\ The Court went on to explain that the authority to 
create a de minimis provision ``is not an ability to depart from the 
statute, but rather a tool to be used in implementing the legislative 
design.'' \40\ The Sixth Circuit has also explained that de minimis 
provisions are created through an ``administrative law principle which 
allows an agency to create unwritten exceptions to a statute or rule 
for insignificant or `de minimis' matters.'' \41\
---------------------------------------------------------------------------

    \39\ Ala. Power. v. Costle, 636 F.2d. 323, 360 (D.C. Cir. 1979).
    \40\ Id.
    \41\ Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 483 (6th 
Cir. 2008).
---------------------------------------------------------------------------

    States and authorized tribes have historically defined 
``significant degradation'' in a variety of ways. Significance tests 
range from simple to complex, involve qualitative or quantitative 
measures or both, and may vary depending upon the type of pollution or 
pollutant (e.g., the approach may be different for highly toxic or 
bioaccumulative pollutants). EPA does not endorse one specific approach 
to identifying what constitutes insignificant degradation, though EPA 
does recognize that one potential way a state or authorized tribe could 
describe its de minimis methodology would be to identify a 
``significance threshold'' as percentage of assimilative capacity loss 
for a parameter or lowering of water quality that would be considered 
``insignificant.'' EPA has not found a scientific basis to identify a 
specific percentage of loss of assimilative capacity or lowering of 
water quality that could reasonably be considered insignificant for all 
parameters, in all waters, at all times, for all activities. Depending 
on the water body's chemical, physical, and biological characteristics 
and the circumstances of the lowering of water quality, even very small 
changes in water quality could cause significant effects to the water 
body.
    Courts have explained that the implied de minimis provision 
authority is ``narrow in reach and tightly bounded by the need to show 
that the situation

[[Page 51035]]

is genuinely de minimis or one of administrative necessity.'' \42\ 
Accordingly, this authority only applies ``when the burdens of 
regulation yield a gain of trivial or no value.'' \43\ Finally, a 
``determination of when matters are truly de minimis naturally will 
turn on the assessment of particular circumstances, and the agency will 
bear the burden of making the required showing.'' \44\
---------------------------------------------------------------------------

    \42\ Id. (quoting Ala. Power. v. Costle, 636 F.2d. 323, 361 
(D.C. Cir. 1979)).
    \43\ Id. (quoting Greenbaum v. U.S. Envtl Prot. Agency, 370 F.3d 
527, 534 (6th Cir. 2004)).
    \44\ Id. (quoting Greenbaum v. U.S. Envtl Prot. Agency, 370 F.3d 
527, 534 (6th Cir. 2004)).
---------------------------------------------------------------------------

    Unless a state or authorized tribe can provide appropriate 
technical justification, it should not create categorical exemptions 
from Tier 2 review for specific types of activities based on a general 
finding that such activities do not result in significant degradation. 
States and authorized tribes should also consider the appropriateness 
of exemptions depending on the types of chemical, physical, and 
biological parameters that would be affected. For example, if a 
potential lowering of water quality contains bioaccumulative chemicals 
of concern, a state or authorized tribe should not apply a categorical 
de minimis exclusion because even extremely small additions of such 
chemicals could have a significant effect. For such pollutants, it 
could be possible to apply a de minimis exclusion on a case by case 
basis, but the state or authorized tribe should carefully consider any 
such proposed lowering prior to determining that it would be 
insignificant. States and authorized tribes should also consider the 
potential effects of cumulative impacts on the same water body to 
ensure that the cumulative degradation from multiple activities each 
considered to have a de minimis impact will not cumulatively add up to 
a significant impact. Finally, if a state or authorized tribe intends 
to use de minimis exclusions, then EPA recommends that it describe how 
it will use de minimis in its antidegradation implementation methods. 
This guarantees that states and authorized tribes will inform the 
public ahead of time about how they will use de minimis exemptions.
    EPA also encourages states and authorized tribes to consider other 
ways to help focus limited resources where they may result in the 
greatest environmental protection. A state or authorized tribe should 
consider whether it will require more effort and resources to justify a 
de minimis exemption than it would take to actually complete a Tier 2 
review for the activity. EPA encourages states and authorized tribes to 
develop ways to streamline Tier 2 reviews, rather than seeking to 
exempt activities from review entirely.

E. WQS Variances

What does this rule provide and why?
    This rule establishes an explicit regulatory framework for the 
adoption of WQS variances that states and authorized tribes can use to 
implement adaptive management approaches to improve water quality. 
States and authorized tribes can face substantial uncertainty as to 
what designated use may ultimately be attainable in their waters. 
Pollutants that impact such waters can result from large-scale land use 
changes, extreme weather events, or environmental stressors related to 
climate change that can hinder restoration and maintenance of water 
quality. In addition, pollutants can be persistent in the environment 
and, in some cases, lack economically feasible control options. WQS 
variances are customized WQS that identify the highest attainable 
condition applicable throughout the WQS variance term. For a discussion 
of why it is important for states and authorized tribes to include the 
highest attainable condition, see the preamble to the proposed rule at 
78 FR 54534 (September 4, 2013). States and authorized tribes could use 
one or more WQS variances to require incremental improvements in water 
quality leading to eventual attainment of the ultimate designated use.
    While EPA has long recognized WQS variances as an available tool, 
the final rule provides regulatory certainty to states and authorized 
tribes, the regulated community, and the public that WQS variances are 
a legal WQS tool. The final rule explicitly authorizes the use of WQS 
variances and provides requirements to ensure that WQS variances are 
used appropriately. Such a mechanism allows states and authorized 
tribes to work with stakeholders and assure the public that WQS 
variances facilitate progress toward attaining designated uses. When 
all parties are engaged in a transparent process that is guided by an 
accountable framework, states and authorized tribes can move past 
traditional barriers and begin efforts to maintain and restore waters. 
As discussed in the preamble to the proposed rule at 78 FR 54531 
(September 4, 2013), a number of states have not pursued WQS variances. 
For WQS variances submitted to EPA between 2004 and 2015, 75% came from 
states covered by the ``Water Quality Guidance for the Great Lakes 
System'' rulemaking at 40 CFR part 132. EPA attributes the Region 5 
states' success in adopting and submitting WQS variances to the fact 
that the states and their stakeholders have had more specificity in 
regulation regarding WQS variances than the rest of the country. This 
final rule is intended to provide the same level of specificity 
nationally.
    EPA's authority to establish requirements for WQS variances comes 
from CWA sections 101(a) and 303(c)(2). This rule reflects this 
authority by explicitly recognizing that states and authorized tribes 
may adopt time-limited WQS with a designated use and criterion 
reflecting the highest attainable condition applicable throughout the 
term of the WQS variance, instead of pursing a permanent \45\ revision 
of the designated use and associated criteria. WQS variances serve the 
national goal in section 101(a)(2) of the Act and the ultimate 
objective of the CWA to restore and maintain the chemical, physical, 
and biological integrity of the Nation's waters because WQS variances 
are narrow in scope and duration and are designed to make progress 
toward water quality goals. When a WQS variance is in place, all other 
applicable standards not addressed in the WQS variance continue to 
apply, in addition to the ultimate water quality objectives (i.e., the 
underlying WQS). Also, by requiring the highest attainable condition to 
be identified and applicable throughout the term of the WQS variance, 
the final rule provides a mechanism to make incremental progress toward 
the ultimate water quality objective for the water body and toward the 
restoration and maintenance of the chemical, physical, and biological 
integrity of the Nation's waters.
---------------------------------------------------------------------------

    \45\ ``Permanent'' is used here to contrast between the time-
limited nature of WQS variances and designated use changes. In 
accordance with 40 CFR 131.20, waters that ``do not include the uses 
specified in section 101(a)(2) of the Act shall be re-examined every 
3 years to determine if new information has become available. If 
such new information indicates that the uses specified in section 
101(a)(2) of the Act are attainable, the [s]tate shall revise its 
standards accordingly.''
---------------------------------------------------------------------------

    This rule adds a new regulatory section at Sec.  131.14 that 
explicitly authorizes the use of WQS variances when the applicable 
designated uses are not attainable in the near-term but may be 
attainable in the future. The rule clarifies how WQS variances relate 
to other CWA programs and specifies the information that the state and 
authorized tribe must adopt in any WQS variance, including the highest 
attainable condition. States and authorized tribes must submit to EPA 
supporting documentation that demonstrates why the WQS variance is

[[Page 51036]]

needed and justifies the term and interim requirements. Finally, the 
rule requires states and authorized tribes to reevaluate WQS variances 
longer than five years on an established schedule with public 
involvement. The changes from the proposed rule respond to public 
comments and remain consistent with the Agency's clearly articulated 
policy objectives in the proposed rule. This rule also includes 
editorial changes that are not substantive in nature.
    First, to provide clarity, this rule includes a new section at 
Sec.  131.14 to explicitly authorize states and authorized tribes to 
adopt WQS variances. States and authorized tribes may adopt WQS 
variances for a single discharger, multiple dischargers, or a water 
body or waterbody segment, but it only applies to the permittee(s) or 
water body/waterbody segment(s) specified in the WQS variance. The rule 
defines a WQS variance at Sec.  131.3(o) as a time-limited designated 
use and criterion for a specified pollutant(s), permittee(s), and/or 
water body or waterbody segment(s) that reflects the highest attainable 
condition applicable throughout the specified time period. The rule 
further specifies that a WQS variance is a new or revised WQS subject 
to EPA review and approval or disapproval,\46\ requires a public 
process, and must be reviewed on a triennial basis. All other 
applicable standards not specifically addressed by the WQS variance 
remain applicable. This rule adds Sec.  131.5(a)(4) to explicitly 
specify that EPA has the authority to determine whether any WQS 
variances adopted by a state or authorized tribe are consistent with 
the requirements at Sec.  131.14. A WQS variance shall not be adopted 
if the designated use and criterion can be achieved by implementing 
technology-based effluent limits required under sections 301(b) and 306 
of the Act.
---------------------------------------------------------------------------

    \46\ For this reason, states and authorized tribes are not 
required to adopt specific authorizing provisions into state or 
authorized tribal law before using WQS variances consistent with the 
federal regulation.
---------------------------------------------------------------------------

    To make incremental water quality improvements, it is important 
that states' and authorized tribes' WQS continue to reflect the 
ultimate water quality goal. This rule, therefore, requires states and 
authorized tribes to retain the underlying designated use and criterion 
in their standards to apply to all other permittees not addressed in 
the WQS variance, and for identifying threatened and impaired waters 
under CWA section 303(d), and for establishing a Total Maximum Daily 
Load (TMDL).\47\ For further clarity, this rule also specifies that 
once EPA approves a WQS variance, including the highest attainable 
condition, it applies for purposes of developing NPDES permit limits 
and requirements under 301(b)(1)(C). WQS variances can also be used by 
states, authorized tribes, and other certifying entities when issuing 
certifications under CWA section 401. If EPA disapproves a WQS 
variance, the state or authorized tribe will have an opportunity to 
revise and re-submit the WQS variance for approval. Until EPA approves 
the re-submitted WQS variance, the underlying designated use and 
criteria remain applicable for all CWA purposes. This rule reinforces 
the requirements at Sec.  122.44(d)(1)(vii)(A) by specifying that any 
limitations and requirements necessary to implement the WQS variance 
must be included as enforceable conditions of the implementing NPDES 
permit.
---------------------------------------------------------------------------

    \47\ See 78 FR 54533 (September 4, 2013).
---------------------------------------------------------------------------

    Second, to provide public transparency, this rule requires states 
and authorized tribes to include specific information in the WQS 
variance. States and authorized tribes must specify the pollutant(s) or 
water quality parameter(s) and the water body/waterbody segment(s) to 
which the WQS variance applies. A state or authorized tribe must also 
identify the discharger(s) subject to a discharger-specific WQS 
variance. As an alternative to identifying the specific dischargers at 
the time of adoption of a WQS variance for multiple dischargers, states 
and authorized tribes may adopt specific eligibility requirements in 
the WQS variance. This will make clear what characteristics a 
discharger must have in order to be subject to the WQS variance for 
multiple dischargers. It is EPA's expectation that states and 
authorized tribes that choose to identify the dischargers in this 
manner will subsequently make a list of the facilities covered by the 
WQS variance publicly available (e.g., posted on the state or 
authorized tribal Web site). It may be appropriate for a state or 
authorized tribe to adopt one WQS variance that applies to multiple 
dischargers experiencing the same challenges in meeting their WQBELs 
for the same pollutant so long as the WQS variance is consistent with 
the CWA and Sec.  131.14.\48\ A multiple discharger WQS variance may 
not be appropriate or practical for all situations and can be highly 
dependent on the applicable pollutants, parameters, and/or permittees.
---------------------------------------------------------------------------

    \48\ EPA has developed a list of Frequently Asked Questions 
addressing when a multiple discharger WQS variance may be 
appropriate and how a state or authorized tribe can develop a 
credible rationale for this type of WQS variance. Discharger-
specific Variances on a Broader Scale: Developing Credible 
Rationales for Variances that Apply to Multiple Dischargers, EPA-
820-F-13-012, March 2013.
---------------------------------------------------------------------------

    States and authorized tribes must also specify the term of any WQS 
variance to ensure that WQS variances are time-limited. States and 
authorized tribes have the flexibility to express the WQS variance term 
as a specific date (e.g., expires on December 31, 2024) or as an 
interval of time after EPA-approval (e.g., expires 10 years after EPA 
approval), as long as it is only as long as necessary to achieve the 
highest attainable condition. If, at the end of the WQS variance, the 
underlying designated use remains unattainable, the state or authorized 
tribe may adopt a subsequent WQS variance(s), consistent with the 
requirements of Sec.  131.14.
    To ensure that states and authorized tribes use WQS variances that 
continue to make water quality progress, the rule does not allow a WQS 
variance to lower currently attained ambient water quality, except in 
circumstances where a WQS variance will allow short-term lowering 
necessary for restoration activities consistent with Sec.  
131.14(b)(2)(i)(A)(2). Moreover, states and authorized tribes must 
specify in the WQS variance itself the interim requirements reflecting 
the highest attainable condition. Where a permittee cannot immediately 
meet the WQBEL derived from the terms of a WQS variance, the permitting 
authority can decide whether to provide a permit compliance schedule 
(where authorized) so the permittee can remain in compliance with its 
NPDES permit.\49\ (See CWA section [502(17)] for a definition of 
``Schedules of compliance'' and 40 CFR 122.47).\50\ Any such compliance 
schedule must include a final effluent limit based on the applicable 
highest attainable condition and must require compliance with the 
permit's WQBEL ``as soon as possible.'' If the compliance schedule 
exceeds one year, the permitting authority must include interim 
requirements and the dates for their achievement.
---------------------------------------------------------------------------

    \49\ As an alternative to a permit compliance schedule, there 
may be other available mechanisms such as an administrative order.
    \50\ 78 FR 54532 (September 4, 2013).
---------------------------------------------------------------------------

    For example, if the underlying criterion requires an NPDES WQBEL of 
1 mg/L for pollutant X, but the permittee's current effluent quality is 
at 10 mg/L, the state or authorized tribe could adopt the highest 
attainable condition of 3 mg/L to be achieved at the end of 15 years 
and obtain EPA approval if they have met the requirements of Sec.  
131.14. Once approved by EPA, the highest attainable condition of 3 mg/
L is the applicable

[[Page 51037]]

criterion for purposes of deriving the NPDES WQBEL and developing the 
NPDES permit limits and requirements for the facility covered by the 
WQS variance. For this example, assume the permitting authority is 
developing the NPDES permit without allowing dilution (i.e., applying 
the criterion end of pipe). In this case, the facility will need 15 
years to implement the activities necessary to meet the limit based on 
the 3 mg/L. The permitting authority could include a 15 year compliance 
schedule with a final effluent limit based on 3 mg/L and an enforceable 
sequence of actions that the permitting authority determines are 
necessary to achieve the final effluent limit. As discussed later in 
this section, the documentation that a state or authorized tribe 
provides to EPA justifying the term of the WQS variance informs the 
permitting authority when determining the enforceable sequence of 
actions.
    This rule requires states and authorized tribes to provide a 
quantifiable expression of the highest attainable condition. This 
requirement is an important feature of a WQS variance that facilitates 
development of NPDES permit limits and requirements and allows states, 
authorized tribes, and the public to track progress. This rule provides 
states and authorized tribes the flexibility to express the highest 
attainable condition as numeric pollutant concentrations in ambient 
water, numeric effluent conditions, or other quantitative expressions 
of pollutant reduction, such as the maximum number of combined sewer 
overflows that is achievable after implementation of a long-term 
control plan or a percent reduction in pollutant loads.
    The final rule at Sec.  131.14(b)(1)(ii) provides states and 
authorized tribes with different options to specify the highest 
attainable condition depending on whether the WQS variance applies to a 
specific discharger(s) or to a water body or waterbody segment. For a 
discharger(s)-specific WQS variance, the rule allows states and 
authorized tribes to express the highest attainable condition as an 
interim criterion without specifying the designated use it supports. 
EPA received comments suggesting that identifying both an interim use 
and interim criterion for a WQS variance is unnecessary. EPA agrees 
that the level of protection afforded by meeting the highest attainable 
criterion in the immediate area of the discharge(s) results in the 
highest attainable interim use at that location. Therefore, the highest 
attainable interim criterion is a reasonable surrogate for both the 
highest attainable interim use and interim criterion when the WQS 
variance applies to a specific discharger(s). For similar reasons, as 
explained in the preamble to the proposed rule, states and authorized 
tribes may choose to articulate the highest attainable condition as the 
highest attainable interim effluent condition.\51\ Neither of these 
options, however, is appropriate for a WQS variance applicable to a 
water body or waterbody segment. Such a WQS variance impacts the water 
body or waterbody segment in a manner that is similar to a change in a 
designated use and, therefore, must explicitly articulate the highest 
attainable condition as the highest attainable interim designated use 
and interim criterion. A state's or authorized tribe's assessment of 
the highest attainable interim designated use and interim criterion for 
this type of WQS variance necessarily involves an evaluation of all 
pollutant sources.
---------------------------------------------------------------------------

    \51\ 78 FR 54534 (September 4, 2013).
---------------------------------------------------------------------------

    Where the state or authorized tribe cannot identify an additional 
feasible pollutant control technology, this rule provides options for 
articulating the highest attainable condition using the greatest 
pollutant reduction achievable with optimization of currently installed 
pollutant control technologies and adoption and implementation of a 
Pollutant Minimization Program (PMP). The rule makes this option 
available for a WQS variance that applies to a specific discharger(s) 
as well as a WQS variance applicable to a water body or waterbody 
segment. EPA defines PMP at Sec.  131.3(p) as follows: ``Pollutant 
Minimization Program, in the context of Sec.  131.14, is a structured 
set of activities to improve processes and pollutant controls that will 
prevent and reduce pollutant loadings . . . .'' Pollutant control 
technologies represent a broad set of pollutant reduction options, such 
as process or raw materials changes and pollution prevention 
technologies, practices that reduce pollutants prior to entering the 
wastewater treatment system, or best management practices for 
restoration and mitigation of the water body. This option requires 
states and authorized tribes to adopt the PMP along with other elements 
that comprise the highest attainable condition. As part of the 
applicable WQS, the permitting authority must use the PMP (along with 
the quantifiable expression of the ``greatest pollutant reduction 
achievable'') to derive NPDES permit limits and requirements.
    As discussed later in this section, states and authorized tribes 
must reevaluate WQS variances on a regular and predictable schedule. To 
ensure that a WQS variance reflects the highest attainable condition 
throughout the WQS variance term, states and authorized tribes must 
adopt a provision specifying that the applicable interim WQS shall be 
either the highest attainable condition initially adopted, or a higher 
attainable condition later identified during any reevaluation. The rule 
requires such a provision only for WQS variances longer than five 
years. This provision must be self-implementing so that if any 
reevaluation yields a more stringent attainable condition, that 
condition becomes the applicable interim WQS without additional action. 
Upon permit reissuance, the permitting authority will base the WQBEL on 
the more stringent interim WQS consistent with the NPDES permit 
regulation at Sec.  122.44(d)(vii)(A). Where the reevaluation 
identifies a condition less stringent than the highest attainable 
condition, the state or authorized tribe must revise the WQS variance 
consistent with CWA requirements and obtain EPA approval of the WQS 
variance before the permitting authority can derive a WQBEL based on 
that newly identified highest attainable condition.
    Third, to ensure EPA has sufficient information to determine 
whether the WQS variance is consistent with EPA's WQS regulation, 
states and authorized tribes must provide documentation to justify why 
the WQS variance is needed, the term for the WQS variance, and the 
highest attainable condition. For a WQS variance to a designated use 
specified in CWA section 101(a)(2) and sub-categories of such uses, 
states and authorized tribes must demonstrate that the use and 
criterion are not feasible to attain on the basis of one of the factors 
listed in Sec.  131.10(g) or on the basis of the new restoration-
related factor in Sec.  131.14(b)(2)(i)(A)(2). EPA added this new 
factor for when states and authorized tribes wish to obtain a WQS 
variance because they expect a time-limited exceedance of a criterion 
when removing a dam or during significant wetlands, lake, or stream 
reconfiguration/restoration efforts. EPA includes ``lake'' in the 
regulatory language for this factor, on the basis of public comments 
suggesting that the rule also apply to lake restoration activities. 
States and authorized tribes may only use this factor to justify the 
time necessary to remove the dam or the length of time in which 
wetland, lake, or stream restoration activities are actively on-going. 
Although such a WQS

[[Page 51038]]

variance might not directly impact an NPDES permittee or the holder of 
a federal license or permit, states and authorized tribes could rely on 
the WQS variance when deciding whether to issue a CWA section 401 
certification in connection with an application for a federal license 
or permit. The central feature of CWA section 401 is the state or 
authorized tribe's ability to grant, grant with conditions, deny or 
waive certification for federally licensed or permitted activities that 
may discharge into navigable waters. Many states and authorized tribes 
rely on CWA section 401 certification to ensure that federal projects 
do not cause adverse water quality impacts. By adopting a WQS variance, 
the state or authorized tribe lays the groundwork for issuing a 
certification (possibly with conditions, as per CWA section 401(d)) 
that allows a federal license or permit to be issued. Without a WQS 
variance, the state or authorized tribe's only options might be to deny 
certification which prevents issuance of the federal license or permit, 
or waive certification and allow the license or permit to be issued 
without conditions. If a state or authorized tribe issues a CWA 
certification based on a WQS variance, EPA recommends that the state or 
tribe consider whether to include the applicable interim requirements 
from the WQS variance as conditions of its certification.
    For WQS variances to non-101(a)(2) uses, this rule specifies that 
states and authorized tribes must document and submit a use and value 
demonstration consistent with Sec.  131.10(a) (see section II.B for 
additional discussion on use and value demonstrations). EPA's proposed 
rule would have required that a ``[s]tate must submit a demonstration 
justifying the need for a WQS variance'' and the preamble to the 
proposed rule noted that the demonstrations for uses specified in CWA 
section 101(a)(2) and non-101(a)(2) may differ. EPA received comments 
questioning the requirements for WQS variances to non-101(a)(2) uses 
and this rule explicitly makes clear that the documentation requirement 
for removing or adopting new or revised designated uses in Sec. Sec.  
131.10(a) and 131.6 also applies to non-101(a)(2) WQS variances. States 
and authorized tribes may also use the factors at Sec.  
131.14(b)(2)(i)(A) to justify how their consideration of the use and 
value appropriately supports the WQS variance.
    States and authorized tribes must justify the term of any WQS 
variance on the basis of the information and factors evaluated to 
justify the need for the WQS variance. States and authorized tribes 
must also describe the pollutant control activities, including those 
identified through a PMP, that the state or authorized tribe 
anticipates implementing throughout the WQS variance term to achieve 
the highest attainable condition. During its review of the WQS 
variance, EPA will evaluate this description of activities which must 
reflect only the time needed to plan activities, implement activities, 
or evaluate the outcome of activities. Explicitly requiring the state 
or authorized tribe to document the relationship between the pollutant 
control activities and the WQS variance term ensures that the term is 
only as long as necessary to achieve the highest attainable condition 
and that water quality progress is achieved throughout the entire WQS 
variance term. The pollutant control activities specified in the 
supporting documentation serve as milestones for the WQS variance and 
inform the permitting authority when developing the enforceable terms 
and conditions of the NPDES permit necessary to implement the WQS 
variance, as required at 40 CFR 122.44(d)(1).
    The degree of certainty associated with pollutant control 
activities and pollutant reductions will inform EPA's review and 
evaluation of whether the state's or authorized tribe's submission 
sufficiently justifies the need and the term of WQS variances. There 
can be instances where a state or authorized tribe has information to 
determine that the underlying designated use and criterion cannot be 
attained for a particular period of time, but does not have sufficient 
information to identify the highest attainable condition that would be 
achieved in that same period of time. In such cases, EPA anticipates 
that a state or authorized tribe will adopt a shorter WQS variance 
reflecting the highest attainable condition that is supported by the 
available information, including the pollutant control activities 
identified in the WQS submission. States and authorized tribes could 
then determine the appropriate mechanism to continue making progress 
towards the underlying designated use and criterion, which may include 
adoption of subsequent WQS variances as more data are gathered and 
additional pollutant control activities are identified.
    This rule also includes two additional requirements to ensure 
states and authorized tribes use all relevant information to establish 
a WQS variance for a water body or waterbody segment. States and 
authorized tribes must identify and document cost-effective and 
reasonable BMPs for nonpoint sources, and provide for public notice and 
comment on that documentation. States and authorized tribes must also 
document whether and to what extent BMPs were implemented and the water 
quality progress achieved during the WQS variance term to justify a 
subsequent WQS variance. Nonpoint sources can have a significant 
bearing on whether the designated use and associated criteria for the 
water body are attainable. It is essential for states and authorized 
tribes to consider how controlling these sources through application of 
cost-effective and reasonable BMPs could impact water quality before 
adopting such a WQS variance. Doing so informs the highest attainable 
condition, the duration of the WQS variance term, and the state's or 
authorized tribe's assessment of the interim actions that may be needed 
to make water quality progress.
    Fourth, to ensure that states and authorized tribes thoroughly 
reevaluate each WQS variance with a term longer than five years, this 
rule requires states and authorized tribes to specify, in the WQS 
variance, the reevaluation frequency and how they plan to obtain public 
input on the reevaluation. Additionally, they must submit the results 
of the reevaluation to EPA within 30 days of completion. States and 
authorized tribes may specify the frequency of reevaluations to 
coincide with other state and authorized tribal processes (e.g., WQS 
triennial reviews or NPDES permit reissuance), as long as reevaluations 
occur at least every five years. Although EPA does not review and 
approve or disapprove the results of a WQS variance reevaluation, the 
results could inform whether the Administrator exercises his or her 
discretion to determine that new or revised WQS are necessary. The rule 
also requires states and authorized tribes to adopt a provision 
specifying that the WQS variance will no longer be the applicable WQS 
for CWA purposes if they do not conduct the required reevaluation or do 
not submit the results of the reevaluation within 30 days of 
completion. If a state or authorized tribe does not reevaluate the WQS 
variance or does not submit the results to EPA within 30 days, the 
underlying designated use and criterion become the applicable WQS for 
the permittee(s) or water body specified in the WQS variance without 
EPA, states or authorized tribes taking an additional WQS action. In 
such cases, subsequent NPDES WQBELs for the associated permit must be 
based on the underlying designated use and criterion rather than the 
highest attainable condition, even if the originally specified variance 
term has not expired. As discussed earlier in

[[Page 51039]]

this section, states and authorized tribes must also adopt a provision 
that ensures the WQS variance reflects the highest attainable condition 
initially adopted or any more stringent highest attainable condition 
identified during a reevaluation that is applicable throughout the WQS 
variance term.
    EPA proposed a maximum allowable WQS variance term of 10 years to 
ensure that states and authorized tribes reevaluate long-term WQS 
challenges at least every 10 years before deciding whether to continue 
with a WQS variance. EPA explained in the preamble to the proposed rule 
that the purpose of this maximum WQS variance term was as follows: 
``Establishing an expiration date will ensure that the conditions of a 
[WQS] variance will be thoroughly reevaluated and subject to a public 
review on a regular and predictable basis to determine (1) whether 
conditions have changed such that the designated use and criterion are 
now attainable; (2) whether new or additional information has become 
available to indicate that the designated use and criterion are not 
attainable in the future (i.e., data or information supports a use 
change/refinement); or (3) whether feasible progress is being made 
toward the designated use and criterion and that additional time is 
needed to make further progress (i.e., whether a [WQS] variance may be 
renewed).'' \52\
---------------------------------------------------------------------------

    \52\ 78 FR 54536 (September 4, 2013).
---------------------------------------------------------------------------

    Some commenters suggested that 10 years is too long and does not 
provide adequate assurance that the state or authorized tribe will 
periodically reevaluate a WQS variance in a publicly transparent 
manner. Other commenters suggested that 10 years is too short because 
states often adopt WQS variances through conventional rulemaking 
processes and that such a maximum term would result in unnecessary 
rulemaking burden where it is widely understood that long-term 
pollution challenges require more time to resolve. A 10-year maximum 
could also discourage the use of WQS variances.
    In response, EPA concludes that establishing specific reevaluation 
requirements for WQS variances longer than five years is the best way 
to achieve EPA's policy objective of active, thorough, and transparent 
reevaluation by states and authorized tribes while minimizing 
rulemaking burden. The reevaluation requirements in this rule eliminate 
the need to specify a maximum WQS variance term because they ensure the 
highest attainable condition is always the applicable WQS throughout 
the WQS variance term, thus driving incremental improvements toward the 
underlying designated use. These requirements also ensure the public 
has an opportunity to provide input throughout the WQS variance term. 
EPA chose five years as the maximum interval between reevaluations 
because five years is the length of a single NPDES permit cycle, 
allowing the reevaluation to inform the permit reissuance process. 
Although this rule does not specify a maximum WQS variance term, states 
and authorized tribes must still identify the WQS variance term and 
provide documentation demonstrating that the term is only as long as 
necessary to achieve the highest attainable condition. EPA will use 
this information to determine whether to approve or disapprove the WQS 
variance submitted for review, based on the requirements in Sec.  
131.14.
    WQS variances remain subject to the triennial review and public 
participation requirements specified in Sec.  131.20. The final rule 
requirements ensure that the public has the opportunity to work with 
states and authorized tribes in a predictable and timely manner to 
search for new or updated data and information specific to the WQS 
variance that could indicate a more stringent highest attainable 
condition exists than the state or authorized tribe originally adopted. 
``New or updated data and information'' include, but are not limited 
to, new information on pollutant control technologies, changes in 
pollutant sources, flow or water levels, economic conditions, and BMPs 
that impact the highest attainable condition. Where there is an EPA-
approved WQS variance, the permitting authority must refer to the 
reevaluation results when reissuing NPDES permits to ensure the permit 
implements any more stringent applicable WQS that the reevaluation 
provides. States and authorized tribes can facilitate this coordination 
by publishing and making accessible the results of reevaluations.
    While this rule only requires reevaluations of WQS variances with a 
term longer than five years, states and authorized tribes must review 
all WQS variances during their triennial review. If a state or 
authorized tribe synchronizes a WQS variance reevaluation with permit 
reissuance, the reevaluation must occur on schedule even if there is a 
delay in the permit reissuance.
    EPA previously promulgated specific variance procedures when EPA 
established federal WQS for Kansas (Sec.  131.34(c)) and Puerto Rico 
(Sec.  131.40(c)). To provide national consistency, this rule 
authorizes the Regional Administrator to grant WQS variances in Kansas 
and Puerto Rico in accordance with the provisions of Sec.  131.14.
What did EPA consider?
    In addition to considering the option EPA proposed, EPA considered 
options that provide a maximum WQS variance term more than or less than 
10 years. EPA rejected these options because retaining a maximum term 
of any duration does not accomplish EPA's goal of a balanced approach 
that ensures both flexibility and accountability as effectively as 
requiring periodic reevaluations of the WQS variance. Additionally, on 
the basis of commenters' suggestions, EPA considered requiring 
identification and documentation of cost-effective and reasonable BMPs 
for nonpoint sources for all WQS variances and not just for WQS 
variances applicable to a water body or waterbody segment. To achieve 
EPA's policy objectives, EPA chose instead to add a requirement for all 
WQS variances that states and authorized tribes describe the pollutant 
control activities to achieve the highest attainable condition (see 
Sec.  131.14(b)(2)(ii)).
What is EPA's position on certain public comments?
    EPA received comments that suggested confusion between WQS 
variances and NPDES permit compliance schedules. WQS variances can be 
appropriate to address situations where it is known that the designated 
use and criterion are unattainable today, but progress could be made 
toward attaining the designated use and criterion. Typically, a permit 
authority grants a permit compliance schedule when the permittee needs 
additional time to modify or upgrade treatment facilities in order to 
meet its WQBEL based on the applicable WQS (i.e., designated use and 
criterion). After the effective date of this rule, a permit authority 
could also grant a permit compliance schedule when the permittee needs 
additional time to meet its WQBEL based on the applicable WQS variance 
(i.e., highest attainable condition) such that a schedule and resulting 
milestones will lead to compliance with the effluent limits derived 
from the WQS variance ``as soon as possible.'' If a WQS variance is 
about to expire and a state or authorized tribe concludes the 
underlying designated use is now attainable, it is not appropriate for 
the state or authorized tribe to adopt a subsequent

[[Page 51040]]

WQS variance. However, if a permittee is unable to immediately meet a 
WQBEL consistent with the now attainable WQS, and the permitting 
authority can specify an enforceable sequence of actions that would 
result in achieving the WQBEL, the permitting authority could grant a 
permit compliance schedule consistent with Sec.  122.47. If the 
underlying designated use is still not attainable, the state or 
authorized tribe can adopt a subsequent WQS variance.
    EPA also received comments questioning how a WQS variance works 
with a TMDL and CWA section 303(d) impaired waters listing(s). These 
comments suggested the proposed rule creates a conflict in how the 
NPDES permitting regulation requires permitting authorities to develop 
WQBELs. Section 122.44(d)(1)(vii)(A) specifies that all WQBELs in an 
NPDES permit must derive from and comply with all applicable WQS. 
Section 122.44(d)(1)(vii)(B) specifies that the WQBEL of any NPDES 
permit must be consistent with the assumptions and requirements of any 
available (emphasis added) waste load allocation (WLA) in an EPA-
approved or EPA-established TMDL. Because the WLA of the TMDL is based 
on the underlying designated use and criterion (and not the highest 
attainable condition established in the WQS variance), then the WLA in 
the TMDL is not available to the permittee covered by the WQS variance 
for NPDES permitting purposes while the WQS variance is in effect. The 
permitting authority must develop WQBELs for the permittees subject to 
the WQS variance based on the interim requirements specified in the WQS 
variance. Upon termination of the WQS variance, the NPDES permit must 
again derive from and comply with the underlying designated use and 
criterion and be consistent with the assumptions and requirements of 
the WLA (as it is again ``available'').
    Some commenters questioned what would happen if a state or 
authorized tribe does not coordinate a WQS variance term with the 
expiration date of an NPDES permit. If information is available to the 
permitting authority indicating that the term of a WQS variance will 
end during the permit cycle, the permitting authority must develop two 
WQBELs: one WQBEL based on the highest attainable condition applicable 
throughout the WQS variance term, and another WQBEL based on the 
underlying designated use and criterion to apply after the WQS variance 
terminates. Including two sets of WQBELs that apply at different time 
periods in the permit ensures that the permit will derive from and 
comply with WQS throughout the permit cycle. If the state or authorized 
tribe adopts and EPA approves a subsequent WQS variance during the 
permit term to replace an expiring WQS variance, the new WQS variance 
would constitute ``new regulations'' pursuant to Sec.  122.62(a)(3)(i), 
and the permitting authority could modify the permit to derive from and 
comply with the subsequent WQS variance. At the request of the 
permittee, the permitting authority can also utilize the Permit Actions 
condition specified in Sec.  122.41(f) to modify a permit and revise 
the WQBEL to reflect the new WQS variance.
    Some commenters questioned whether states and authorized tribes 
must modify WQS variances that states and authorized tribes adopted 
before the effective date of the final rule. States and authorized 
tribes must meet the requirements of this rule on the effective date of 
the final rule. As with any WQS effective for CWA purposes, WQS 
variances are subject to the triennial review requirements at Sec.  
131.20(a). When a state or authorized tribe reviews a WQS variance that 
was adopted before Sec.  131.14 becomes effective, EPA strongly 
encourages the state or authorized tribe to ensure the WQS variance is 
consistent with this rule. EPA encourages the public to engage in 
triennial reviews and request revisions to WQS variances that states 
and authorized tribes adopted and EPA approved prior to the effective 
date of the final rule so that the public can provide information 
supporting the need to modify the WQS variances. Some states and 
authorized tribes may also have adopted binding WQS variance policies 
and/or procedures. Such policies and procedures are not required by 
EPA's regulation before utilizing WQS variances, however, where state 
and authorized tribes have them and they are inconsistent with this 
rule, those states and authorized tribes must revise such policies and/
or procedures prior to, or simultaneously with, adopting the first WQS 
variance after the effective date of the final rule.
    A state or authorized tribe may be able to streamline its WQS 
variance process in several ways. As discussed earlier in this section, 
one way is to adopt multiple discharger WQS variances. In justifying 
the need for a multiple discharger WQS variance, states and authorized 
tribes should account for as much individual permittee information as 
possible. A permittee that cannot qualify for an individual WQS 
variance cannot qualify for a multiple discharger WQS variance. EPA 
recommends that states and authorized tribes provide a list of the 
dischargers covered under the WQS variance on their Web sites or other 
publicly available sources of state or authorized tribal information, 
particularly when using multiple discharger WQS variances.
    A second way is to adopt an administrative procedure that fulfills 
the WQS submittal and review requirements and specifies that if the 
state or authorized tribe follows the procedure, the WQS variance is 
legally binding under state or tribal law. A state or authorized tribe 
could submit such an administrative procedure for a WQS variance, as a 
rule, to EPA for review and approval under Sec.  131.13. Once approved, 
the state or authorized tribe can follow this administrative procedure 
and develop a final document for each WQS variance. Because the state 
or tribal law specifies this WQS variance document is legally binding, 
there is no need for the state or authorized tribe to do a separate 
rulemaking for each individual WQS variance. Rather, the state or 
authorized tribe could submit each resulting WQS variance document, 
with an Attorney General or appropriate tribal legal authority 
certification, and EPA could take action under CWA section 303(c).
    Some commenters questioned how this rule affects states and 
authorized tribes under the 1995 Great Lakes Water Quality Guidance 
(GLWQG) \53\ because those requirements are different than the WQS 
variance requirements in the final rule. For waters in the Great Lakes 
basin, states and authorized tribes must meet the requirements of both 
40 CFR parts 131 and 132. The practical effect of this requirement is 
that, where regulations in 40 CFR parts 131 and 132 overlap, the more 
stringent regulation applies. In some cases, the flexibilities and 
requirements in the national rule will not be applicable to waters in 
the Great Lakes basin. For example, the GLWQG limits any WQS variance 
to a maximum term of five years (with the ability to obtain a 
subsequent WQS variance). Therefore, any WQS variance on waters that 
are subject to the GLWQG cannot exceed five years even though the final 
rule in 40 CFR part 131 does not specify a maximum term. On the other 
hand, because GLWQG WQS variances cannot exceed five years, the 
requirements in the final rule that pertain to conducting reevaluations 
(for WQS variances greater than five years) are not applicable.
---------------------------------------------------------------------------

    \53\ See 60 FR 15366 (March 23, 1995); 40 CFR part 132.

---------------------------------------------------------------------------

[[Page 51041]]

    Finally, some commenters questioned the level of ``scientific 
rigor'' required for a WQS variance as compared to a UAA required for 
changes to 101(a)(2) uses. Section 40 CFR 131.5(a)(4) provides that 
EPA's review under section 303(c) involves a determination of whether 
the state's or authorized tribe's ``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. . . .'' Because 
WQS variances are time-limited designated uses and criteria, this 
requirement applies to WQS variances. States and authorized tribes must 
adopt WQS variances based on appropriate technical and scientific data 
and analyses. Therefore, the level of rigor required for a WQS variance 
is no different than for a designated use change. That said, the 
appropriate technical and scientific data required to support a 
designated use change and WQS variance can vary depending on the 
complexity of the specific circumstances. EPA recognizes that the data 
and analyses often needed to support adoption of a WQS variance could 
be less complex and require less time and resources compared to 
removing a designated use because many WQS variances evaluate only one 
parameter for a single permittee for a limited period of time. The 
level of effort a state or authorized tribe needs to devote to a WQS 
variance will in large part be determined by the complexity of the 
water quality problem the state or authorized tribe seeks to address.

F. Provisions Authorizing the Use of Schedules of Compliance for WQBELs 
in NPDES Permits

What does this rule provide and why?
    In 1990, EPA concluded that before a permitting authority can 
include a compliance schedule for a WQBEL in an NPDES permit, the state 
or authorized tribe must affirmatively authorize its use in its WQS or 
implementing regulations.\54\ EPA approval of the state's or authorized 
tribe's permit compliance schedule authorizing provision as a WQS 
ensures that any NPDES permit WQBEL with a compliance schedule derives 
from and complies with applicable WQS as required by Sec.  
122.44(d)(1)(vii)(A). Because the state's or authorized tribe's 
approved WQS authorize extended compliance, any delay in compliance 
with a WQBEL pursuant to an appropriately issued permit compliance 
schedule is consistent with the statutory implementation timetable in 
CWA section 301(b)(1)(C).
---------------------------------------------------------------------------

    \54\ In the Matter of Star-Kist Caribe, Inc. 3 EAD 172 (April 
16, 1990).
---------------------------------------------------------------------------

    The use of legally-authorized permit compliance schedules by states 
and authorized tribes provides needed flexibility for many dischargers 
undergoing facility upgrades and operational changes designed to meet 
WQBELs in their NPDES permits. This flexibility will become 
increasingly important as states and authorized tribes adopt more 
stringent WQS, including numeric nutrient criteria, and address complex 
water quality problems presented by emerging challenges like climate 
change.
    Some states have adopted compliance schedule authorizing provisions 
but have not submitted them to EPA for approval as WQS pursuant to CWA 
section 303(c). Other states have not yet adopted compliance schedule 
authorizing provisions. A permit could be subject to legal challenge 
where a state and authorized tribe decide to authorize permit 
flexibility using permit compliance schedules, but do not have a 
compliance schedule authorizing provision approved by EPA as a WQS.
    Section 131.15 in this final rule requires that if a state or 
authorized tribe intends to authorize the use of compliance schedules 
for WQBELs in NPDES permits, it must first adopt a permit compliance 
schedule authorizing provision. The authorizing provision must be 
consistent with the CWA and is subject to EPA review and approval as a 
WQS. This rule adds Sec.  131.5(a)(5) to explicitly specify that EPA 
has the authority to determine whether any provision authorizing the 
use of schedules of compliance for WQBELs in NPDES permits adopted by a 
state or authorized tribe is consistent with the requirements at Sec.  
131.15. This rule also includes a number of non-substantive editorial 
changes.
    By expressly requiring that the state or authorized tribe adopt a 
permit compliance schedule authorizing provision, the first sentence of 
the final regulation at Sec.  131.15 ensures that the state or 
authorized tribe has expressly made a determination that, under 
appropriate circumstances, it can be lawful to delay permit compliance. 
Formal adoption as a legally binding provision ensures public 
transparency and facilitates public involvement.
    Some commenters expressed concern that the proposed regulatory 
language regarding state and authorized tribal adoption could be 
interpreted to refer to permit compliance schedules themselves, rather 
than their authorizing provisions. To address that concern, the final 
rule refers to ``the use of'' schedules of compliance. The phrase ``the 
use of'' indicates that the mere adoption of an authorizing provision, 
by itself, does not extend the date of compliance with respect to any 
specific permit's WQBEL; rather, its adoption allows the state or 
authorized tribe to use schedules of compliance, as appropriate, on a 
case-by-case basis in individual permits.
    The second sentence of the final regulation at Sec.  131.15 
provides that states' and authorized tribes' authorizing provisions 
must be consistent with the CWA and are WQS subject to EPA review and 
approval. By incorporating the authorizing provision into the state's 
or authorized tribe's approved WQS, the state or authorized tribe 
ensures that a permitting authority can then legally issue compliance 
schedules for WQBELs in NPDES permits that are consistent with CWA 
section 301(b)(1)(C). Only the permit compliance schedule authorizing 
provisions are WQS subject to EPA approval; individual permit 
compliance schedules are not. The final rule provides flexibility for a 
state or authorized tribe to include the authorizing provision in the 
part of state or tribal regulations where WQS are typically codified, 
in the part of state or tribal regulations dealing with NPDES permits, 
or in other parts of the state's or authorized tribe's implementing 
regulations. Regardless of where the authorizing provision is codified, 
as long as the provision is legally binding, EPA will take action on it 
under CWA section 303(c). If a state or authorized tribe has already 
adopted an authorizing provision that is consistent with the CWA, it 
need not readopt the provision for purposes of satisfying the final 
rule. Instead, the state or authorized tribe can submit the provision 
to EPA with an Attorney General or appropriate tribal legal authority 
certification. Moreover, consistent with Sec.  131.21(c), any permit 
compliance schedule authorizing provision that was adopted, effective, 
and submitted to EPA before May 30, 2000, is applicable for purposes of 
Sec.  131.15.
    This final rule does not change any permit compliance schedule 
requirements at Sec.  122.47.
    Other judicial and administrative mechanisms issued pursuant to 
other authorities, such as an enforcement order issued by a court, can 
delay the need for compliance with WQBELs. This rule does not address 
those other mechanisms.
What did EPA consider?
    EPA considered finalizing Sec.  131.15, as proposed. Given the 
comments

[[Page 51042]]

indicating that ambiguity in the proposed language could lead to 
confusion over whether the requirements to adopt and submit for EPA 
approval applied directly to permit compliance schedules themselves, 
EPA did not select this option. Instead, EPA added clarifying language 
to address the commenters' concern and streamlined the text of the 
proposed rule without making substantive changes. EPA also considered 
foregoing the addition of Sec.  131.15. Many commenters, however, 
supported adding Sec.  131.15 as a useful clarification of the need and 
process for states and authorized tribes to adopt compliance schedule 
authorizing provisions.
What is EPA's position on certain public comments?
    Some commenters said that the following proposed regulatory 
language--``authorize schedules of compliance for water quality-based 
effluent limits (WQBELs) in NPDES permits''--could have the effect of 
narrowing the universe of NPDES permits and permit requirements for 
which permitting authorities can include permit compliance schedules. 
The regulation does not narrow that universe, nor does it preclude 
other appropriate uses of permit compliance schedules as provided for 
in Sec.  122.47. The new Sec.  131.15 requirements only apply to the 
authorization of compliance schedules for WQBELs in NPDES permits. Such 
WQBELs are designed to meet WQS established by the state or authorized 
tribe and approved by EPA under CWA section 303(c).\55\ Adding this new 
provision to the WQS regulation will ensure that the state or 
authorized tribe takes the necessary steps to ensure that any NPDES 
permit with a permit compliance schedule for a WQBEL is consistent with 
the state's or authorized tribe's applicable WQS. The requirement in 
Sec.  131.15 does not preclude, or apply to, use of compliance 
schedules for permit limitations or conditions that are not WQBELs. A 
permitting authority can grant a permit compliance schedule for non-
WQBEL NPDES permit limits or conditions without an EPA-approved 
authorizing provision, provided the permit compliance schedule is 
consistent with the CWA, EPA's permitting regulation, especially 
Sec. Sec.  122.2 and 122.47, and any applicable state or tribal laws 
and regulations. Permitting authorities can include such permit 
compliance schedules without an EPA-approved permit compliance schedule 
authorizing provision because such limits and conditions are not 
themselves designed to implement the state's or authorized tribe's 
approved WQS.
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    \55\ 40 CFR 122.44(d)(1); 122.44(d)(1)(vii)(A).
---------------------------------------------------------------------------

G. Other Changes

What does this rule provide and why?
    Regulatory provisions can only be effective if they are clear and 
accurate. Even spelling and grammar mistakes, and inconsistent 
terminology can cause confusion. This rule, therefore, corrects these 
types of mistakes and inconsistencies in the following 11 regulatory 
provisions: Sec. Sec.  131.2, 131.3(h), 131.3(j), 131.5(a)(1), 
131.5(a)(2), 131.10(j), 131.10(j)(2), 131.11(a)(2), 131.11(b), 
131.12(a)(2), and 131.20(b). The rule finalizes eight of the 
provisions, as proposed. However, based on public comments, EPA revised 
how it is correcting Sec. Sec.  131.5(a)(2), 131.12(a)(2), and 
131.20(b). EPA notes that in correcting these minor pre-existing 
errors, it did not re-examine the substance of these regulatory 
provisions. Thus EPA did not reopen these regulatory provisions.
    With regard to the revision at Sec.  131.5(a)(2), the final rule 
adds a reference to Sec.  131.11 and ``sound scientific rationale'' to 
make the link clear. Commenters expressed concern that ``sound 
scientific rationale'' was an ambiguous and subjective point of 
reference and may interfere with the ability of states and authorized 
tribes to use narrative criteria. By linking the two regulatory 
sections, this rule makes clear that this provision does not contradict 
the requirements and flexibilities provided in Sec.  131.11.
    This rule at Sec.  131.12(a)(2) correctly cites to the CWA language 
and makes no other changes. EPA proposed revising ``assure'' to 
``ensure,'' however, the final rule does not include this change. 
Commenters raised the question of whether the revision changed the 
meaning of the provision. Although both ``assure'' and ``ensure'' mean 
``to make sure,'' EPA recognizes that the context surrounding the word 
is important. While ``ensure'' is used in Sec.  131.10(b), in this 
context, the states and authorized tribes can ``make sure'' their WQS 
meet the regulatory requirements. However, Sec.  131.12(a)(2), 
addresses water quality, not WQS. While states and authorized tribes 
have control over their WQS, they do not have the same control over the 
resulting water quality as it can be affected by many other factors. So 
use of the word ``ensure'' would not be appropriate in this provision.
    This rule clarifies four points related to public hearings. First, 
it clarifies that 40 CFR part 25 is EPA's public participation 
regulation that sets the minimum requirements for public hearings and 
removes the nonexistent citation to ``EPA's water quality management 
regulation (40 CFR 130.3(b)(6)).'' Second, it clarifies that holding 
one public hearing may satisfy the legal CWA requirement although 
states and authorized tribes may hold multiple hearings. The purpose of 
this revision is to provide consistency with the language of CWA 
section 303(c)(1) and Sec.  131.20(a), not to create a requirement that 
states and authorized tribes must hold multiple hearings when reviewing 
or revising WQS. Third, EPA's corresponding change in Sec.  131.5(a)(6) 
clarifies that EPA's authority in acting on revised or new WQS includes 
determining whether the state or authorized tribe has followed the 
``applicable'' legal procedures. Applicable legal procedures include 
those required by the CWA and EPA's implementing regulations. In 
particular, states and authorized tribes must comply with the 
requirement in Sec.  131.20(b) to hold a public hearing in accordance 
with 40 CFR part 25 when reviewing or revising WQS. The purpose of the 
Sec.  131.20(b) requirements is to implement the CWA and provide an 
opportunity for meaningful public input when states or authorized 
tribes develop WQS, which is an important step to ensure that adopted 
WQS reflect full consideration of the relevant issues raised by the 
public. Finally, Sec.  131.20(b) and EPA's corresponding deletion of 
Sec.  131.10(e) clarify that a public hearing is required when (1) 
reviewing WQS per Sec.  131.20(a); (2) when revising WQS as a result of 
reviewing WQS per Sec.  131.20(a); and (3) whenever revising WQS, 
regardless of whether the revision is a result of triennial review per 
Sec.  131.20(a). EPA reviewed the use of the phrase ``an opportunity 
for a public hearing'' used in Sec.  131.10(e) and found that such 
language contradicts the CWA and Sec.  131.20(b). Therefore, EPA is 
deleting this provision as a conforming edit to its clarifications in 
Sec.  131.20(b). As suggested by commenters, EPA replaced its proposed 
language of ``reviewing or revising'' to ``reviewing as well as when 
revising'' to make clear that public participation is required in all 
of these circumstances.
What is EPA's position on certain public comments?
    A commenter requested that EPA further revise the regulation to 
allow states and authorized tribes to gather public input in formats 
other than public hearings (e.g., public meetings, webinars). Although 
EPA acknowledges

[[Page 51043]]

the challenges that states and authorized tribes may experience when 
planning and conducting a public hearing, the requirement to hold 
hearings for the purposes of reviewing, and as appropriate, modifying 
and adopting WQS comes directly from CWA section 303(c)(1). Further, 
meaningful involvement of the public and intergovernmental coordination 
with local, state, federal, and tribal entities with an interest in 
water quality issues is an important component of the WQS process. 
States and authorized tribes have discretion to use other outreach 
efforts in addition to fulfilling the requirement for a public hearing.
    A ``public hearing'' may mean different things to different people. 
At a minimum, per Sec.  131.20(b), states and authorized tribes are 
required to follow the provisions of state or tribal law and EPA's 
public participation regulations at 40 CFR part 25. EPA's public 
participation regulation, at 40 CFR 25.5, sets minimum requirements for 
states and authorized tribes to publicize a hearing at least 45 days 
prior to the date of the hearing; provide to the public reports, 
documents, and data relevant to the discussion at the public hearing at 
least 30 days before the hearing; hold the hearing at times and places 
that facilitate attendance by the public; schedule witnesses in advance 
to allow maximum participation and adequate time; and prepare a 
transcript, recording, or other complete record of the hearing 
proceedings. See 40 CFR 25.5 for the actual list of federal public 
hearing requirements. State and tribal law may include additional 
requirements for states and authorized tribes to meet when planning for 
and conducting a hearing. In addition to meeting the requirements of 
state and tribal law and 40 CFR part 25, states and authorized tribes 
may also choose to gather public input using other formats, such as 
public meetings and webinars.

III. Economic Impacts on State and Authorized Tribal WQS Programs

    EPA evaluated the potential incremental administrative burden and 
cost that may be associated with the final rule, beyond the burden and 
cost of the WQS regulation already in place. EPA's estimate is higher 
than the estimate of the proposed rule for two reasons unrelated to any 
substantive change in requirements. First, EPA obtained more precise 
estimates of burden and costs. EPA received many comments suggesting 
that EPA underestimated the burden and cost of the proposed rule. 
States specifically requested to meet with EPA to provide additional 
information for EPA to consider. EPA engaged the states and 
incorporated the information provided into the final economic analysis. 
The higher estimate is also partly due to EPA using known data to 
extrapolate burden and costs to states, territories and authorized 
tribes where data were unavailable. EPA describes the method of 
extrapolation in detail in the full economic analysis available in the 
docket of the final rule. EPA's economic analysis focuses on the 
potential administrative burden and cost to all 50 states, the District 
of Columbia, five territories, the 40 authorized tribes with EPA-
approved WQS, and to EPA. While this rule does not establish any 
requirements directly applicable to regulated point sources or nonpoint 
sources of pollution, EPA acknowledges that this rule may result in 
indirect costs to some regulated entities as a result of changes to WQS 
that states and authorized tribes adopt based on the final rule. EPA is 
unable to quantify indirect costs and benefits since it cannot 
anticipate precisely how the rule will be implemented by states and 
authorized tribes and because of a lack of data. States and authorized 
tribes always have the discretion to adopt new or revised WQS 
independent of this final rule that could result in costs to point 
sources and nonpoint sources. EPA's economic analysis and an 
explanation for how EPA derived the cost and burden estimates are 
documented in the Economic Analysis for the Water Quality Standards 
Regulatory Revisions (Final Rule) and can be found in the docket for 
this rule.
    EPA assessed the potential incremental burden and cost of this 
final rule using the same basic methodology used to assess the 
potential incremental burden and cost of EPA's proposed rule, 
including: (1) Identifying the elements of the final rule that could 
potentially result in incremental burden and cost; (2) estimating the 
incremental number of labor hours states and authorized tribes may need 
to allocate in order to comply with those elements of the final rule; 
and (3) estimating the cost associated with those additional labor 
hours.
    EPA identified four areas where differences between the proposed 
and final rules affected burden and cost estimates. First, when states 
and authorized tribes submit the results of triennial reviews to EPA, 
they must provide an explanation when not adopting new or revised water 
quality criteria for parameters for which EPA has published new or 
updated CWA section 304(a) criteria recommendations. Second, when 
developing or revising antidegradation implementation methods and when 
deciding which waters would receive Tier 2 antidegradation protection 
under a water body-by-water body approach, states and authorized tribes 
must provide an opportunity for public involvement. States and 
authorized tribes must also document and keep in the public record the 
factors they considered when making those decisions. Third, the final 
rule no longer includes a maximum WQS variance duration of 10 years and 
thus eliminates the burden and cost associated with renewing a WQS 
variance when the state or authorized tribe can justify a longer term. 
Fourth, the final rule requires states and authorized tribes to 
proactively reevaluate WQS variances that have a term longer than five 
years no less frequently than every five years and to submit the 
results of each reevaluation to EPA within 30 days of completion. EPA 
also revised certain economic assumptions based on additional 
information obtained independently by EPA and in response to 
stakeholder feedback.
    The potential incremental burden and cost of the final rule include 
five categories: (1) One-time burden and cost associated with state and 
authorized tribal rulemaking activities when some states and authorized 
tribes may need to adopt new or revised provisions into their WQS 
(e.g., review currently adopted water quality standards to determine if 
the new requirements necessitate revisions, such as modifying 
antidegradation policy, revising WQS variance procedures if the state 
or authorized tribe has chosen to adopt such a procedure, or adopting a 
permit compliance schedule authorizing provision); (2) recurring burden 
and cost associated with removing uses specified in CWA section 
101(a)(2) because states and authorized tribes must identify the HAU; 
(3) recurring burden and cost associated with triennial reviews whereby 
states and authorized tribes must prepare and submit an explanation 
when not adopting new or revised water quality criteria for parameters 
for which EPA has published new or updated CWA section 304(a) criteria 
recommendations; (4) recurring burden and cost associated with 
antidegradation requirements, including providing the opportunity for 
public involvement when developing and subsequently revising 
antidegradation implementation methods; providing the opportunity for 
public involvement when deciding which waters will receive Tier 2 
antidegradation protection when using a water body-by-water body 
approach; documenting and

[[Page 51044]]

keeping in the public record the factors the state or authorized tribe 
considered when deciding which waters will receive Tier 2 
antidegradation protection; and performing/evaluating more extensive 
and a greater number of antidegradation reviews; and (5) recurring 
burden and cost associated with developing and documenting WQS 
variances for submission to EPA, and reevaluating WQS variances with a 
term longer than five years no less frequently than every five years. 
EPA did not estimate potential cost savings associated with a provision 
in the final rule that a UAA is not required when removing a non-
101(a)(2) use because states and authorized tribes continue to have the 
discretion to conduct a UAA when removing such uses.
    Estimates of the potential incremental burden and cost of this 
final rule are summarized in the following tables.

                                    Summary of Potential Incremental Burden and Cost to States and Authorized Tribes
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             One-time activities                            Recurring activities
                                                          ----------------------------------------------------------------------------------------------
                        Provision                                                                 Annualized cost
                                                             Burden (hours)      Cost (2013$      (2013$ millions/    Burden (hours/      Cost (2013$
                                                                                  millions)          year) \1\            year)          millions/year)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rulemaking Activities....................................      48,000-96,000        $2.35-$4.70        $0.16-$0.32                 --                 --
Designated Uses..........................................                 --                 --                 --        2,250-4,500        $0.11-$0.22
Triennial Reviews........................................                 --                 --                 --       4,320-21,600          0.21-1.06
Antidegradation..........................................       6,450-12,900          0.32-0.63          0.02-0.04     48,015-143,400          2.37-7.02
WQS Variances............................................                 --                 --                 --     51,840-233,280         2.54-11.43
                                                          ----------------------------------------------------------------------------------------------
    National Total.......................................     54,450-108,900          2.67-5.34          0.18-0.36    106,425-402,780         5.24-19.73
--------------------------------------------------------------------------------------------------------------------------------------------------------
`--' = not applicable
Note: Individual annual cost estimates do not add to the total because of independent rounding.
\1\ Although EPA expects one-time rulemaking activity costs to be incurred over an initial three-year period, it annualized costs at a three percent
  discount rate over 20 years for comparative purposes. See the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) for
  the potential incremental burden and cost using a seven percent discount rate.

                                               Summary of Potential Incremental Burden and Cost to EPA \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        One-time activities                                                         Recurring activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Annualized cost                 Burden                  Cost to the                   Burden
                                               to the agency  -------------------------------------  agency (2013$  ------------------------------------
   Cost to the agency (2013$ million) \2\      (2013$ million                                         million per                         FTEs per year
                                               per year) \3\        Hours \4\          FTEs \5\        year) \6\     Hours per year \4\        \5\
--------------------------------------------------------------------------------------------------------------------------------------------------------
$0.53-$1.07.................................     $0.04-$0.07        7,080-14,150          3.4-6.8      $1.05-$3.95       13,900-52,320         6.7-25.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Assuming that the incremental burden and costs to EPA are equal to 20 percent of the burden and costs to states and authorized tribes.
\2\ $0.53 million ($2.67 million x 20 percent) to $1.07 million ($5.34 million x 20 percent)
\3\ Although EPA expects these one-time costs to be incurred over an initial three-year period, the costs are annualized at three percent discount rate
  over 20 years for comparative purposes. See the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) for the potential
  incremental burden and cost using a seven percent discount rate.
\4\ Total costs to the Agency divided by hourly wage rate ($75.41 per hour).
\5\ Burden hours to the Agency divided by hours worked by full-time equivalent (FTE) employees per year (2,080 hours per year).
\6\ $1.05 million ($5.24 million x 20 percent) to $3.95 million ($19.73 million x 20 percent).

                             Combined Summary of Potential Incremental Burden and Cost to States, Authorized Tribes, and EPA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             One-time activities                            Recurring activities
                                                          ----------------------------------------------------------------------------------------------
                         Entities                                                                 Annualized cost
                                                             Burden (hours)      Cost (2013$      (2013$ million/     Burden (hours/      Cost (2013$
                                                                                  millions)          year) \1\            year)          millions/year)
--------------------------------------------------------------------------------------------------------------------------------------------------------
States and Authorized Tribes.............................     54,450-108,900        $2.67-$5.34        $0.18-$0.36    106,425-402,780       $5.24-$19.73
Agency...................................................       7,080-14,150          0.53-1.07          0.04-0.07      13,900-52,320          1.05-3.95
                                                          ----------------------------------------------------------------------------------------------
    Total................................................     61,530-122,050          3.20-6.40          0.22-0.43    120,325-455,100         6.29-23.68
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Individual annual cost estimates do not add to the total because of independent rounding.
\1\ Although EPA expects states and authorized tribes to incur rulemaking costs over an initial three-year period, it annualized one-time costs at a
  three percent discount rate over 20 years for comparative purposes. See the Economic Analysis for the Water Quality Standards Regulatory Revisions
  (Final Rule) for the potential incremental burden and cost using a seven percent discount rate.

    To estimate the total annual cost of this rule which includes both 
one-time cost and recurring cost, EPA annualized the one-time cost over 
a period of 20 years. Using a 20-year annualization period and a 
discount rate of three percent, EPA estimates the total annual cost for 
this final rule to range from $6.51 million per year ($0.22 million per 
year + $6.29 million per year) to $24.11 million per year ($0.43 
million per year + $23.68 million per year).\56\
---------------------------------------------------------------------------

    \56\ See the Economic Analysis for the Water Quality Standards 
Regulatory Revisions (Final Rule) for the potential incremental 
burden and cost for this final rule using a seven percent discount 
rate.

---------------------------------------------------------------------------

[[Page 51045]]

    EPA also evaluated the potential benefits associated with this 
rule. States and authorized tribes will benefit from these revisions 
because the WQS regulation will provide clear requirements to 
facilitate the ability of states and authorized tribes to effectively 
and legally utilize available regulatory tools when implementing and 
managing their WQS programs. Although associated with potential 
administrative burden and cost in some areas, this rule has the 
potential to partially offset these burdens by reducing regulatory 
uncertainty and increasing overall program efficiency. Use of these 
tools to improve establishment and implementation of state and 
authorized tribal WQS, as discussed throughout the preamble to this 
rule, provides incremental improvements in water quality and a variety 
of economic benefits associated with these improvements, including the 
availability of clean, safe, and affordable drinking water sources; 
water of adequate quality for agricultural and industrial use; and 
water quality that supports the commercial fishing industry and higher 
property values. Nonmarket benefits of this rule include greater 
recreational opportunities and the protection and improvement of public 
health. States, authorized tribes, stakeholders and the public will 
also benefit from the open public dialogue that results from the 
additional transparency and public participation requirements included 
in this rule. Because states and authorized tribes implement their own 
WQS programs, EPA could not reliably predict the control measures 
likely to be implemented and subsequent improvements to water quality, 
and thus could not quantify the resulting benefits.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket. EPA prepared an analysis of the potential costs and benefits 
associated with this action. This analysis, Economic Analysis for the 
Water Quality Standards Regulatory Revisions (Final Rule), is 
summarized in section III of the preamble and is available in the 
docket.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been 
submitted for approval to OMB under the PRA. The Information Collection 
Request (ICR) document that EPA prepared has been assigned EPA ICR 
number 2449.02. You can find a copy of the ICR in the docket for this 
rule, and it is briefly summarized here. The information collection 
requirements are not enforceable until OMB approves them.
    The core of the WQS regulation, established in 1983, requires EPA 
to collect certain information from states and authorized tribes and 
has an approved ICR (EPA ICR number 988.11; OMB Control number 2040-
0049). This rule requires states and authorized tribes to submit 
certain additional information to EPA. This mandatory information 
collection ensures EPA has the necessary information to review WQS and 
approve or disapprove consistent with the rule. The goals of the rule 
can only be fulfilled by collecting this additional information. Due to 
the nature of this rule, EPA assumes that all administrative burden 
associated with this rule, summarized in section III, is associated 
with information collection.
    Respondents/affected entities: The respondents affected by this 
collection activity include the 50 states, the District of Columbia, 
five territories, and 40 authorized tribes that have EPA-approved WQS. 
The respondents are in NAICS code 92411 ``Administration of Air and 
Water Resources and Solid Waste Management Programs,'' formerly SIC 
code #9511.
    Respondent's obligation to respond: The collection is required 
pursuant to CWA section 303(c), as implemented by the revisions to 40 
CFR part 131.
    Estimated number of respondents: A total of 96 governmental 
entities are potentially affected by the rule.
    Frequency of response: The CWA requires states and authorized 
tribes to review their WQS at least once every three years and submit 
the results to EPA. In practice, some states and authorized tribes 
choose to submit revised standards for portions of their waters more 
frequently.
    Total estimated burden: EPA estimates a total annual burden of 
124,575-439,080 hours and 3,176 to 5,096 responses per year. Burden is 
defined at 5 CFR 1320.3(b). A ``response'' is an action that a state or 
authorized tribe would need to take in order to meet the information 
collection request provided in the rule (e.g., documentation supporting 
a WQS variance). See also the ``Information Collection Request for 
Water Quality Standards Regulatory Revisions (Final Rule)'' in the 
docket for this rule.
    Total estimated cost: Total estimated annual incremental costs 
range from $6.13 million to $21.51 million.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves 
this ICR, the Agency will announce the approval in the Federal Register 
and publish a technical amendment to 40 CFR part 9 to display the OMB 
control number for the approved information collection activities 
contained in this final rule.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. State 
and authorized tribal governments responsible for administering or 
overseeing water quality programs may be directly affected by this 
rulemaking, as states and authorized tribes may need to consider and 
implement new provisions, or revise existing provisions, in their WQS. 
Small entities, such as small businesses or small governmental 
jurisdictions, are not directly regulated by this rule. This rule will 
not impose any requirements on small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This rule does not contain a federal mandate that may result in 
expenditures of $100 million or more for state, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
EPA estimates total annual costs to states and authorized tribes to 
range from $5.24 million to $19.73 million per year. Thus, this rule is 
not subject to the requirements of sections 202 or 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of 
UMRA because it contains no regulatory requirements that might 
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This rule does not have federalism implications. It will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various

[[Page 51046]]

levels of government. The rule finalizes regulatory revisions to 
provide clarity and transparency in the WQS regulation that may require 
state and local officials to reevaluate or revise their WQS. However, 
the rule will not impose substantial direct compliance costs on state 
or local governments, nor will it preempt state law. Thus, Executive 
Order 13132 does not apply to this action.
    Keeping with the spirit of Executive Order 13132 and consistent 
with EPA's policy to promote communications between EPA and state and 
local governments, EPA consulted with state and local officials early 
in the process and solicited their comments on the proposed action and 
on the development of this rule.
    Between September 2013 and June 2014, EPA consulted with 
representatives from states and intergovernmental associations at their 
request, to hear their views on the proposed regulatory revisions and 
how commenters' suggested revisions would impact implementation of 
their WQS programs. Some participants expressed concern that the 
proposed changes may impose a resource burden on state and local 
governments, as well as infringe on states' flexibility in the areas 
included in the proposed rule. Some participants urged EPA to ensure 
that states with satisfactory regulations in these areas are not unduly 
burdened by the regulatory revisions.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action may have tribal implications. However, it will neither 
impose substantial direct compliance costs on tribal governments, nor 
preempt tribal law. Thus, Executive Order 13175 does not apply to this 
action. To date, 50 Indian tribes have been approved for treatment in a 
manner similar to a state (TAS) for CWA sections 303 and 401. Of the 50 
tribes, 40 have EPA-approved WQS in their respective jurisdictions. All 
of these authorized tribes are impacted by this regulation. However, 
this rule might affect other tribes with waters adjacent to waters with 
federal, state, or authorized tribal WQS.
    EPA consulted and coordinated with tribal officials consistent with 
EPA's Policy on Consultation and Coordination with Indian Tribes early 
in the process of developing this regulation to allow them to provide 
meaningful and timely input into its development. In August 2010, 
November 2013, and October 2014, EPA held tribes-only consultation and 
coordination sessions to hear their views and answer questions of all 
interested tribes on the targeted areas EPA considered for regulatory 
revision. Tribes expressed the need for additional guidance and 
assistance in implementing the proposed rulemaking, specifically for 
development of antidegradation implementation methods and determination 
of the highest attainable use. EPA considered the burden to states and 
authorized tribes in developing this rule and, when possible, has 
provided direction and flexibility that allows tribes to address higher 
priority aspects of their WQS programs. EPA also intends to release 
updated guidance in a new edition of the WQS Handbook. A summary of the 
consultation and coordination is available in the docket for this rule.

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

    This action is not subject to Executive Order 13045, because it is 
not economically significant as defined in Executive Order 12866, and 
because the EPA does not believe the environmental health risks or 
safety risks addressed by this action present a disproportionate risk 
to children.

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

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    EPA has determined that this rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations, because it does not adversely affect the level 
of protection provided to human health or the environment. This rule 
does not directly establish WQS for a state or authorized tribe and, 
therefore, does not directly affect a specific population or a 
particular geographic area(s).

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 131

    Environmental protection, Indians--lands, Intergovernmental 
relations, Reporting and recordkeeping requirements, Water pollution 
control.

    Dated: August 5, 2015.
Gina McCarthy,
Administrator.
    For the reasons stated in the preamble, EPA amends 40 CFR part 131 
as follows:

PART 131--WATER QUALITY STANDARDS

0
1. The authority citation for part 131 continues to read as follows:

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

Subpart A--General Provisions

0
2. In Sec.  131.2, revise the first sentence to read as follows:

Sec.  131.2   Purpose.

    A water quality standard defines the water quality goals of a water 
body, or portion thereof, by designating the use or uses to be made of 
the water and by setting criteria that protect the designated uses. * * 
*
* * * * *

0
3. In Sec.  131.3:
0
a. Revise paragraphs (h) and (j).
0
b. Add paragraphs (m), (n), (o), (p), and (q).
    The revisions and additions read as follows:

Sec.  131.3  Definitions.

* * * * *
    (h) Water quality limited segment means any segment where it is 
known that water quality does not meet applicable water quality 
standards, and/or is not expected to meet applicable water quality 
standards, even after the application of the technology-based effluent 
limitations required by sections 301(b) and 306 of the Act.
* * * * *
    (j) States include: The 50 States, the District of Columbia, Guam, 
the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the 
Commonwealth of the Northern Mariana Islands, and Indian Tribes that 
EPA determines to be eligible for purposes of the water quality 
standards program.
* * * * *
    (m) Highest attainable use is the modified aquatic life, wildlife, 
or recreation use that is both closest to the uses specified in section 
101(a)(2) of the

[[Page 51047]]

Act and attainable, based on the evaluation of the factor(s) in Sec.  
131.10(g) that preclude(s) attainment of the use and any other 
information or analyses that were used to evaluate attainability. There 
is no required highest attainable use where the State demonstrates the 
relevant use specified in section 101(a)(2) of the Act and sub-
categories of such a use are not attainable.
    (n) Practicable, in the context of Sec.  131.12(a)(2)(ii), means 
technologically possible, able to be put into practice, and 
economically viable.
    (o) A water quality standards variance (WQS variance) is a time-
limited designated use and criterion for a specific pollutant(s) or 
water quality parameter(s) that reflect the highest attainable 
condition during the term of the WQS variance.
    (p) Pollutant Minimization Program, in the context of Sec.  131.14, 
is a structured set of activities to improve processes and pollutant 
controls that will prevent and reduce pollutant loadings.
    (q) Non-101(a)(2) use is any use unrelated to the protection and 
propagation of fish, shellfish, wildlife or recreation in or on the 
water.

0
4. In Sec.  131.5:
0
a. Revise paragraphs (a)(1) and (2).
0
b. Redesignate paragraphs (a)(3) through (5) as paragraphs (a)(6) 
through (8).
0
c. Add paragraphs (a)(3) through (5).
0
d. Revise newly designated paragraph (a)(6).
0
e. Revise paragraph (b).
    The revisions and additions read as follows:

Sec.  131.5  EPA authority.

    (a) * * *
    (1) Whether the State has adopted designated water uses that are 
consistent with the requirements of the Clean Water Act;
    (2) Whether the State has adopted criteria that protect the 
designated water uses based on sound scientific rationale consistent 
with Sec.  131.11;
    (3) Whether the State has adopted an antidegradation policy that is 
consistent with Sec.  131.12, and whether any State adopted 
antidegradation implementation methods are consistent with Sec.  
131.12;
    (4) Whether any State adopted WQS variance is consistent with Sec.  
131.14;
    (5) Whether any State adopted provision authorizing the use of 
schedules of compliance for water quality-based effluent limits in 
NPDES permits is consistent with Sec.  131.15;
    (6) Whether the State has followed applicable legal procedures for 
revising or adopting standards;
* * * * *
    (b) If EPA determines that the State's or Tribe's water quality 
standards are consistent with the factors listed in paragraphs (a)(1) 
through (8) of this section, EPA approves the standards. EPA must 
disapprove the State's or Tribe's water quality standards and 
promulgate Federal standards under section 303(c)(4), and for Great 
Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the 
Act, if State or Tribal adopted standards are not consistent with the 
factors listed in paragraphs (a)(1) through (8) of this section. EPA 
may also promulgate a new or revised standard when necessary to meet 
the requirements of the Act.
* * * * *

Subpart B--Establishment of Water Quality Standards

0
5. In Sec.  131.10:
0
a. Revise paragraphs (a), (g) introductory text, (j), and (k).
0
b. Remove and reserve paragraph (e).
    The revisions read as follows:

Sec.  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. If adopting new or revised designated 
uses other than the uses specified in section 101(a)(2) of the Act, or 
removing designated uses, States must submit documentation justifying 
how their consideration of the use and value of water for those uses 
listed in this paragraph appropriately supports the State's action. A 
use attainability analysis may be used to satisfy this requirement. In 
no case shall a State adopt waste transport or waste assimilation as a 
designated use for any waters of the United States.
* * * * *
    (e) [Reserved]
* * * * *
    (g) States may designate a use, or remove a use that is not an 
existing use, if the State conducts a use attainability analysis as 
specified in paragraph (j) of this section that demonstrates attaining 
the use is not feasible because of one of the six factors in this 
paragraph. If a State adopts a new or revised water quality standard 
based on a required use attainability analysis, the State shall also 
adopt the highest attainable use, as defined in Sec.  131.3(m).
* * * * *
    (j) A State must conduct a use attainability analysis as described 
in Sec.  131.3(g), and paragraph (g) of this section, whenever:
    (1) The State designates for the first time, or has previously 
designated for a water body, uses that do not include the uses 
specified in section 101(a)(2) of the Act; or
    (2) The State wishes to remove a designated use that is specified 
in section 101(a)(2) of the Act, to remove a sub-category of such a 
use, or to designate a sub-category of such a use that requires 
criteria less stringent than previously applicable.
    (k) A State is not required to conduct a use attainability analysis 
whenever:
    (1) The State designates for the first time, or has previously 
designated for a water body, uses that include the uses specified in 
section 101(a)(2) of the Act; or
    (2) The State designates a sub-category of a use specified in 
section 101(a)(2) of the Act that requires criteria at least as 
stringent as previously applicable; or
    (3) The State wishes to remove or revise a designated use that is a 
non-101(a)(2) use. In this instance, as required by paragraph (a) of 
this section, the State must submit documentation justifying how its 
consideration of the use and value of water for those uses listed in 
paragraph (a) appropriately supports the State's action, which may be 
satisfied through a use attainability analysis.

0
6. In Sec.  131.11, revise paragraphs (a)(2) and (b) introductory text 
to read as follows:

Sec.  131.11   Criteria.

    (a) * * *
    (2) Toxic pollutants. States must review water quality data and 
information on discharges to identify specific water bodies where toxic 
pollutants may be adversely affecting water quality or the attainment 
of the designated water use or where the levels of toxic pollutants are 
at a level to warrant concern and must adopt criteria for such toxic 
pollutants applicable to the water body sufficient to protect the 
designated use. Where a State adopts narrative criteria for toxic 
pollutants to protect designated uses, the State must provide 
information identifying the method by which the State intends to 
regulate point source discharges of toxic pollutants on water quality 
limited segments based on such narrative criteria. Such information may 
be included as part of the standards or may be included in documents 
generated by the State in response to the Water

[[Page 51048]]

Quality Planning and Management Regulations (40 CFR part 130).
    (b) Form of criteria: In establishing criteria, States should:
* * * * *
0
7. In Sec.  131.12:
0
a. Revise the section heading and paragraphs (a) introductory text and 
(a)(2).
0
b. Add paragraph (b).
    The revisions and additions read as follows:

Sec.  131.12  Antidegradation policy and implementation methods.

    (a) The State shall develop and adopt a statewide antidegradation 
policy. The antidegradation policy shall, at a minimum, be consistent 
with the following:
* * * * *
    (2) Where the quality of the waters exceeds levels necessary to 
support the protection and propagation of fish, shellfish, and wildlife 
and recreation in and on the water, that quality shall be maintained 
and protected unless the State finds, after full satisfaction of the 
intergovernmental coordination and public participation provisions of 
the State's continuing planning process, that allowing lower water 
quality is necessary to accommodate important economic or social 
development in the area in which the waters are located. In allowing 
such degradation or lower water quality, the State shall assure 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.
    (i) The State may identify waters for the protections described in 
paragraph (a)(2) of this section on a parameter-by-parameter basis or 
on a water body-by-water body basis. Where the State identifies waters 
for antidegradation protection on a water body-by-water body basis, the 
State shall provide an opportunity for public involvement in any 
decisions about whether the protections described in paragraph (a)(2) 
of this section will be afforded to a water body, and the factors 
considered when making those decisions. Further, the State shall not 
exclude a water body from the protections described in paragraph (a)(2) 
of this section solely because water quality does not exceed levels 
necessary to support all of the uses specified in section 101(a)(2) of 
the Act.
    (ii) Before allowing any lowering of high water quality, pursuant 
to paragraph (a)(2) of this section, the State shall find, after an 
analysis of alternatives, that such a lowering is necessary to 
accommodate important economic or social development in the area in 
which the waters are located. The analysis of alternatives shall 
evaluate a range of practicable alternatives that would prevent or 
lessen the degradation associated with the proposed activity. When the 
analysis of alternatives identifies one or more practicable 
alternatives, the State shall only find that a lowering is necessary if 
one such alternative is selected for implementation.
* * * * *
    (b) The State shall develop methods for implementing the 
antidegradation policy that are, at a minimum, consistent with the 
State's policy and with paragraph (a) of this section. The State shall 
provide an opportunity for public involvement during the development 
and any subsequent revisions of the implementation methods, and shall 
make the methods available to the public.

0
8. Add Sec.  131.14 to read as follows:

Sec.  131.14  Water quality standards variances.

    States may adopt WQS variances, as defined in Sec.  131.3(o). Such 
a WQS variance is subject to the provisions of this section and public 
participation requirements at Sec.  131.20(b). A WQS variance is a 
water quality standard subject to EPA review and approval or 
disapproval.
    (a) Applicability. (1) A WQS variance may be adopted for a 
permittee(s) or water body/waterbody segment(s), but only applies to 
the permittee(s) or water body/waterbody segment(s) specified in the 
WQS variance.
    (2) Where a State adopts a WQS variance, the State must retain, in 
its standards, the underlying designated use and criterion addressed by 
the WQS variance, unless the State adopts and EPA approves a revision 
to the underlying designated use and criterion consistent with 
Sec. Sec.  131.10 and 131.11. All other applicable standards not 
specifically addressed by the WQS variance remain applicable.
    (3) A WQS variance, once adopted by the State and approved by EPA, 
shall be the applicable standard for purposes of the Act under Sec.  
131.21(d) through (e), for the following limited purposes. An approved 
WQS variance applies for the purposes of developing NPDES permit limits 
and requirements under 301(b)(1)(C), where appropriate, consistent with 
paragraph (a)(1) of this section. States and other certifying entities 
may also use an approved WQS variance when issuing certifications under 
section 401 of the Act.
    (4) A State may not adopt WQS variances if the designated use and 
criterion addressed by the WQS variance can be achieved by implementing 
technology-based effluent limits required under sections 301(b) and 306 
of the Act.
    (b) Requirements for Submission to EPA. (1) A WQS variance must 
include:
    (i) Identification of the pollutant(s) or water quality 
parameter(s), and the water body/waterbody segment(s) to which the WQS 
variance applies. Discharger(s)-specific WQS variances must also 
identify the permittee(s) subject to the WQS variance.
    (ii) The requirements that apply throughout the term of the WQS 
variance. The requirements shall represent the highest attainable 
condition of the water body or waterbody segment applicable throughout 
the term of the WQS variance based on the documentation required in 
(b)(2) of this section. The requirements shall not result in any 
lowering of the currently attained ambient water quality, unless a WQS 
variance is necessary for restoration activities, consistent with 
paragraph (b)(2)(i)(A)(2) of this section. The State must specify the 
highest attainable condition of the water body or waterbody segment as 
a quantifiable expression that is one of the following:
    (A) For discharger(s)-specific WQS variances:
    (1) The highest attainable interim criterion; or
    (2) The interim effluent condition that reflects the greatest 
pollutant reduction achievable; or
    (3) If no additional feasible pollutant control technology can be 
identified, the interim criterion or interim effluent condition that 
reflects the greatest pollutant reduction achievable with the pollutant 
control technologies installed at the time the State adopts the WQS 
variance, and the adoption and implementation of a Pollutant 
Minimization Program.
    (B) For WQS variances applicable to a water body or waterbody 
segment:
    (1) The highest attainable interim use and interim criterion; or
    (2) If no additional feasible pollutant control technology can be 
identified, the interim use and interim criterion that reflect the 
greatest pollutant reduction achievable with the pollutant control 
technologies installed at the time the State adopts the WQS variance, 
and the adoption and implementation of a Pollutant Minimization 
Program.
    (iii) A statement providing that the requirements of the WQS 
variance are

[[Page 51049]]

either the highest attainable condition identified at the time of the 
adoption of the WQS variance, or the highest attainable condition later 
identified during any reevaluation consistent with paragraph (b)(1)(v) 
of this section, whichever is more stringent.
    (iv) The term of the WQS variance, expressed as an interval of time 
from the date of EPA approval or a specific date. The term of the WQS 
variance must only be as long as necessary to achieve the highest 
attainable condition and consistent with the demonstration provided in 
paragraph (b)(2) of this section. The State may adopt a subsequent WQS 
variance consistent with this section.
    (v) For a WQS variance with a term greater than five years, a 
specified frequency to reevaluate the highest attainable condition 
using all existing and readily available information and a provision 
specifying how the State intends to obtain public input on the 
reevaluation. Such reevaluations must occur no less frequently than 
every five years after EPA approval of the WQS variance and the results 
of such reevaluation must be submitted to EPA within 30 days of 
completion of the reevaluation.
    (vi) A provision that the WQS variance will no longer be the 
applicable water quality standard for purposes of the Act if the State 
does not conduct a reevaluation consistent with the frequency specified 
in the WQS variance or the results are not submitted to EPA as required 
by (b)(1)(v) of this section.
    (2) The supporting documentation must include:
    (i) Documentation demonstrating the need for a WQS variance.
    (A) For a WQS variance to a use specified in section 101(a)(2) of 
the Act or a sub-category of such a use, the State must demonstrate 
that attaining the designated use and criterion is not feasible 
throughout the term of the WQS variance because:
    (1) One of the factors listed in Sec.  131.10(g) is met, or
    (2) Actions necessary to facilitate lake, wetland, or stream 
restoration through dam removal or other significant reconfiguration 
activities preclude attainment of the designated use and criterion 
while the actions are being implemented.
    (B) For a WQS variance to a non-101(a)(2) use, the State must 
submit documentation justifying how its consideration of the use and 
value of the water for those uses listed in Sec.  131.10(a) 
appropriately supports the WQS variance and term. A demonstration 
consistent with paragraph (b)(2)(i)(A) of this section may be used to 
satisfy this requirement.
    (ii) Documentation demonstrating that the term of the WQS variance 
is only as long as necessary to achieve the highest attainable 
condition. Such documentation must justify the term of the WQS variance 
by describing the pollutant control activities to achieve the highest 
attainable condition, including those activities identified through a 
Pollutant Minimization Program, which serve as milestones for the WQS 
variance.
    (iii) In addition to paragraphs (b)(2)(i) and (ii) of this section, 
for a WQS variance that applies to a water body or waterbody segment:
    (A) Identification and documentation of any cost-effective and 
reasonable best management practices for nonpoint source controls 
related to the pollutant(s) or water quality parameter(s) and water 
body or waterbody segment(s) specified in the WQS variance that could 
be implemented to make progress towards attaining the underlying 
designated use and criterion. A State must provide public notice and 
comment for any such documentation.
    (B) Any subsequent WQS variance for a water body or waterbody 
segment must include documentation of whether and to what extent best 
management practices for nonpoint source controls were implemented to 
address the pollutant(s) or water quality parameter(s) subject to the 
WQS variance and the water quality progress achieved.
    (c) Implementing WQS variances in NPDES permits. A WQS variance 
serves as the applicable water quality standard for implementing NPDES 
permitting requirements pursuant to Sec.  122.44(d) of this chapter for 
the term of the WQS variance. Any limitations and requirements 
necessary to implement the WQS variance shall be included as 
enforceable conditions of the NPDES permit for the permittee(s) subject 
to the WQS variance.

0
9. Add Sec.  131.15 to read as follows:

Sec.  131.15  Authorizing the use of schedules of compliance for water 
quality-based effluent limits in NPDES permits.

    If a State intends to authorize the use of schedules of compliance 
for water quality-based effluent limits in NPDES permits, the State 
must adopt a permit compliance schedule authorizing provision. Such 
authorizing provision is a water quality standard subject to EPA review 
and approval under section 303 of the Act and must be consistent with 
sections 502(17) and 301(b)(1)(C) of the Act.

Subpart C--Procedures for Review and Revision of Water Quality 
Standards

0
10. In Sec.  131.20, revise paragraphs (a) and (b) to read as follows:

Sec.  131.20  State review and revision of water quality standards.

    (a) State review. The State shall from time to time, but at least 
once every 3 years, hold public hearings for the purpose of reviewing 
applicable water quality standards adopted pursuant to Sec. Sec.  
131.10 through 131.15 and Federally promulgated water quality standards 
and, as appropriate, modifying and adopting standards. The State shall 
also re-examine any waterbody segment with water quality standards that 
do not include the uses specified in section 101(a)(2) of the Act every 
3 years to determine if any new information has become available. If 
such new information indicates that the uses specified in section 
101(a)(2) of the Act are attainable, the State shall revise its 
standards accordingly. Procedures States establish for identifying and 
reviewing water bodies for review should be incorporated into their 
Continuing Planning Process. In addition, if a State does not adopt new 
or revised criteria for parameters for which EPA has published new or 
updated CWA section 304(a) criteria recommendations, then the State 
shall provide an explanation when it submits the results of its 
triennial review to the Regional Administrator consistent with CWA 
section 303(c)(1) and the requirements of paragraph (c) of this 
section.
    (b) Public participation. The State shall hold one or more public 
hearings for the purpose of reviewing water quality standards as well 
as when revising water quality standards, in accordance with provisions 
of State law and EPA's public participation regulation (40 CFR part 
25). The proposed water quality standards revision and supporting 
analyses shall be made available to the public prior to the hearing.
* * * * *

0
11. In Sec.  131.22, revise paragraph (b) to read as follows:

Sec.  131.22  EPA promulgation of water quality standards.

* * * * *
    (b) The Administrator may also propose and promulgate a regulation, 
applicable to one or more navigable waters, setting forth a new or 
revised standard upon determining such a standard is necessary to meet 
the requirements of the Act. To constitute an Administrator's 
determination that a

[[Page 51050]]

new or revised standard is necessary to meet the requirements of the 
Act, such determination must:
    (1) Be signed by the Administrator or his or her duly authorized 
delegate, and
    (2) Contain a statement that the document constitutes an 
Administrator's determination under section 303(c)(4)(B) of the Act.
* * * * *

Subpart D--Federally Promulgated Water Quality Standards

0
12. In Sec.  131.34, revise paragraph (c) to read as follows:

Sec.  131.34  Kansas.

* * * * *
    (c) Water quality standard variances. The Regional Administrator, 
EPA Region 7, is authorized to grant variances from the water quality 
standards in paragraphs (a) and (b) of this section where the 
requirements of Sec.  131.14 are met.

0
13. In Sec.  131.40, revise paragraph (c) to read as follows:

Sec.  131.40  Puerto Rico.

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

[FR Doc. 2015-19821 Filed 8-20-15; 8:45 am]
 BILLING CODE 6560-50-P
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