510 

§ 131.41 40 CFR Ch. I (7–1–10 Edition) 

unrelated to water quality, preclude 

attainment of aquatic life protection 

uses; or 

(vi) Controls more stringent than 

those required by sections 301(b) and 

306 of the CWA would result in substantial and widespread economic and social impact. 

(4) Procedures. An applicant for a 

water quality standards variance shall 

submit a request to the Regional Administrator of EPA Region 2. The application shall include all relevant information showing that the requirements for a variance have been met. 

The applicant must demonstrate that 

the designated use is unattainable for 

one of the reasons specified in paragraph (c)(3) of this section. If the Regional Administrator preliminarily determines that grounds exist for granting a variance, he/she shall provide 

public notice of the proposed variance 

and provide an opportunity for public 

comment. Any activities required as a 

condition of the Regional Administrator’s granting of a variance shall be included as conditions of the NPDES permit for the applicant. These terms and 

conditions shall be incorporated into 

the applicant’s NPDES permit through 

the permit reissuance process or 

through a modification of the permit 

pursuant to the applicable permit 

modification provisions of Puerto 

Rico’s NPDES program. 

(5) A variance may not exceed five 

years or the term of the NPDES permit, whichever is less. A variance may 

be renewed if the applicant reapplies 

and demonstrates that the use in question is still not attainable. Renewal of 

the variance may be denied if the applicant did not comply with the conditions of the original variance, or otherwise does not meet the requirements of 

this section. 

[69 FR 3524, Jan. 26, 2004] 

§ 131.41 Bacteriological criteria for 

those states not complying with 

Clean Water Act section 303(i)(1)(A). 

(a) Scope. This section is a promulgation of the Clean Water Act section 

304(a) criteria for bacteria for coastal 

recreation waters in specific States. It 

is not a general promulgation of the 

Clean Water Act section 304(a) criteria 

for bacteria. This section also contains 

a compliance schedule provision. 

(b) Definitions. (1) Coastal Recreation 

Waters are the Great Lakes and marine 

coastal waters (including coastal estuaries) that are designated under section 303(c) of the Clean Water Act for 

use for swimming, bathing, surfing, or 

similar water contact activities. Coastal recreation waters do not include inland waters or waters upstream from 

the mouth of a river or stream having 

an unimpaired natural connection with 

the open sea. 

(2) Designated bathing beach waters are 

those coastal recreation waters that, 

during the recreation season, are heavily-used (based upon an evaluation of 

use within the State) and may have: a 

lifeguard, bathhouse facilities, or public parking for beach access. States 

may include any other waters in this 

category even if the waters do not 

meet these criteria. 

(3) Moderate use coastal recreation waters are those coastal recreation waters 

that are not designated bathing beach 

waters but typically, during the recreation season, are used by at least half 

of the number of people as at typical 

designated bathing beach waters within the State. States may also include 

light use or infrequent use coastal 

recreation waters in this category. 

(4) Light use coastal recreation waters 

are those coastal recreation waters 

that are not designated bathing beach 

waters but typically, during the recreation season, are used by less than half 

of the number of people as at typical 

designated bathing beach waters within the State, but are more than infrequently used. States may also include 

infrequent use coastal recreation waters in this category. 

(5) Infrequent use coastal recreation 

waters are those coastal recreation waters that are rarely or occasionally 

used. 

(6) New pathogen discharger for the 

purposes of this section means any 

building, structure, facility, or installation from which there is or may be a 

discharge of pathogens, the construction of which commenced on or after 

December 16, 2004. It does not include 

relocation of existing combined sewer 

overflow outfalls. 


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Environmental Protection Agency § 131.41 

(7) Existing pathogen discharger for the 

purposes of this section means any discharger that is not a new pathogen discharger. 

(c) EPA’s section 304(a) ambient water 

quality criteria for bacteria. (1) 

Freshwaters: 

A 

Indicator d

B 

Geometric mean 

C 

Single sample maximum 

(per 100 ml) 

C1 

Designated bathing beach 

(75% confidence 

level) 

C2 

Moderate use 

costal recreation 

waters 

(82% confidence 

level) 

C3 

Light use coastal 

recreation waters 

(90% confidence 

level) 

C4 

Infrequent use 

coastal recreation 

waters 

(95% confidence 

level) 

E. coli e ..................... 126/100 mil a ........... b 235 b 298 b 409 b 575 

Enterococci e ............ 33/100 ml c .............. b 61 b 78 b 107 b 151 

Footnotes to table in paragraph (c)(1): 

a. This value is for use with analytical methods 1103.1, 1603, or 1604 or any equivalent method that measures viable bacteria. 

b. Calculated using the following: single sample maximum = geometric mean * 10∧(confidence level factor * log standard deviation), where the confidence level factor is: 75%: 0.68; 82%: 0.94; 90%: 1.28; 95%: 1.65. The log standard deviation from EPA’s

epidemiological studies is 0.4. 

c. This value is for use with analytical methods 1106.1 or 1600 or any equivalent method that measures viable bacteria. 

d. The State may determine which of these indicators applies to its freshwater coastal recreation waters. Until a State makes 

that determination, E. coli will be the applicable indicator. 

e. These values apply to E. coli or enterococci regardless of origin unless a sanitary survey shows that sources of the indicator 

bacteria are non-human and an epidemiological study shows that the indicator densities are not indicative of a human health 

risk. 

(2) Marine waters: 

A 

Indicator 

B 

Geometric mean 

C 

Single sample maximum 

(per 100 ml) 

C1 

Designated bathing beach 

(75% confidence 

level) 

C2 

Moderate use 

coastal recreation 

waters 

(82% confidence 

level) 

C3 

Light use coastal 

recreation waters 

(90% confidence 

level) 

C4 

Infrequent use 

coastal recreation 

waters 

(95% confidence 

level) 

Enterococci c ............ 35/100 ml a .............. b 104 b 158 b 276 b 501 

Footnotes to table in paragraph (c)(2): 

a. This value is for use with analytical methods 1106.1 or 1600 or any equivalent method that measures viable bacteria. 

b. Calculated using the following: single sample maximum = geometric mean * 10∧(confidence level factor * log standard deviation), where the confidence level factor is: 75%: 0.68; 82%: 0.94; 90%: 1.28; 95%: 1.65. The log standard deviation from EPA’s

epidemiological studies is 0.7. 

c. These values apply to enterococci regardless of origin unless a sanitary survey shows that sources of the indicator bacteria

are non-human and an epidemiological study shows that the indicator densities are not indicative of a human health risk. 

(3) As an alternative to the single 

sample maximum in paragraph (c)(1) or 

(c)(2) of this section, States may use a 

site-specific log standard deviation to 

calculate a single sample maximum for 

individual coastal recreation waters, 

but must use at least 30 samples from 

a single recreation season to do so. 

(d) Applicability. (1) The criteria in 

paragraph (c) of this section apply to 

the coastal recreation waters of the 

States identified in paragraph (e) of 

this section and apply concurrently 

with any ambient recreational water 

criteria adopted by the State, except 

for those coastal recreation waters 

where State regulations determined by 

EPA to meet the requirements of Clean 

Water Act section 303(i) apply, in which 

case the State’s criteria for those 

coastal recreation waters will apply 

and not the criteria in paragraph (c) of 

this section. 

(2) The criteria established in this 

section are subject to the State’s general rules of applicability in the same 

way and to the same extent as are 

other Federally-adopted and Stateadopted numeric criteria when applied 

to the same use classifications. 

(e) Applicability to specific jurisdictions. (1) The criteria in paragraph 

(c)(1) of this section apply to fresh 

coastal recreation waters of the following States: Illinois, Minnesota, New 

York, Ohio, Pennsylvania, Wisconsin. 


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§ 131.42 40 CFR Ch. I (7–1–10 Edition) 

(2) The criteria in paragraph (c)(2) of 

this section apply to marine coastal 

recreation waters of the following 

States: Alaska, California (except for 

coastal recreation waters within the 

jurisdiction of Regional Board 4), Florida, Georgia, Hawaii (except for coastal 

recreation waters within 300 meters of 

the shoreline), Louisiana, Maine (except for SA waters and SB and SC waters with human sources of fecal contamination), Maryland, Massachusetts, 

Mississippi, New York, North Carolina, 

Oregon, Puerto Rico (except for waters 

classified by Puerto Rico as intensely 

used for primary contact recreation 

and for those waters included in 

§131.40), Rhode Island, United States 

Virgin Islands. 

(f) Schedules of compliance. (1) This 

paragraph (f) applies to any State that 

does not have a regulation in effect for 

Clean Water Act purposes that authorizes compliance schedules for National 

Pollutant Discharge Elimination System permit limitations needed to meet 

the criteria in paragraph (c) of this section. All dischargers shall promptly 

comply with any new or more restrictive water quality-based effluent limitations based on the water quality criteria set forth in this section. 

(2) When a permit issued on or after 

December 16, 2004, to a new pathogen 

discharger as defined in paragraph (b) 

of this section contains water qualitybased effluent limitations based on 

water quality criteria set forth in paragraph (c) of this section, the permittee 

shall comply with such water qualitybased effluent limitations upon the 

commencement of the discharge. 

(3) Where an existing pathogen discharger reasonably believes that it will 

be infeasible to comply immediately 

with a new or more restrictive water 

quality-based effluent limitations 

based on the water quality criteria set 

forth in paragraph (c) of this section, 

the discharger may request approval 

from the permit issuing authority for a 

schedule of compliance. 

(4) A compliance schedule for an existing pathogen discharger shall require compliance with water qualitybased effluent limitations based on 

water quality criteria set forth in paragraph (c) of this section as soon as possible, taking into account the discharger’s ability to achieve compliance 

with such water quality-based effluent 

limitations. 

(5) If the schedule of compliance for 

an existing pathogen discharger exceeds one year from the date of permit 

issuance, reissuance or modification, 

the schedule shall set forth interim requirements and dates for their achievement. The period between dates of 

completion for each requirement may 

not exceed one year. 

If the time necessary for completion 

of any requirement is more than one 

year and the requirement is not readily 

divisible into stages for completion, 

the permit shall require, at a minimum, specified dates for annual submission of progress reports on the status of interim requirements. 

(6) In no event shall the permit 

issuing authority approve a schedule of 

compliance for an existing pathogen 

discharge which exceeds five years 

from the date of permit issuance, 

reissuance, or modification, whichever 

is sooner. 

(7) If a schedule of compliance exceeds the term of a permit, interim 

permit limits effective during the permit shall be included in the permit and 

addressed in the permit’s fact sheet or 

statement of basis. The administrative 

record for the permit shall reflect final 

permit limits and final compliance 

dates. Final compliance dates for final 

permit limits, which do not occur during the term of the permit, must occur 

within five years from the date of 

issuance, reissuance or modification of 

the permit which initiates the compliance schedule. 

[69 FR 67242, Nov. 16, 2004] 

§ 131.42 Antidegradation Implementation Methods for the Commonwealth of Puerto Rico. 

(a) General Policy Statement. (1) All 

point sources of pollution are subject 

to an antidegradation review. 

(2) An antidegradation review shall 

be initiated as part of the Section 401— 

‘‘Water Quality Certification Process’’ 

of the Clean Water Act. 

(3) The 401 Certification Process shall 

follow the procedures established by 

the February 2, 1989 Resolution R–89–2– 

2 of the Governing Board of the Puerto 


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