401 

Environmental Protection Agency § 131.2 

§ 130.15 Processing application for Indian tribes. 

The Regional Administrator shall 

process an application of an Indian 

Tribe submitted under § 130.6(d) in a 

timely manner. He shall promptly notify the Indian Tribe of receipt of the 

application. 

[54 FR 14360, Apr. 11, 1989, as amended at 59 

FR 13818, Mar. 23, 1994] 

PART 131—WATER QUALITY 

STANDARDS 

Subpart A—General Provisions 

Sec. 

131.1 Scope. 

131.2 Purpose. 

131.3 Definitions. 

131.4 State authority. 

131.5 EPA authority. 

131.6 Minimum requirements for water 

quality standards submission. 

131.7 Dispute resolution mechanism. 

131.8 Requirements for Indian Tribes to administer a water quality standards program. 

Subpart B—Establishment of Water Quality 

Standards 

131.10 Designation of uses. 

131.11 Criteria. 

131.12 Antidegradation policy. 

131.13 General policies. 

Subpart C—Procedures for Review and 

Revision of Water Quality Standards 

131.20 State review and revision of water 

quality standards. 

131.21 EPA review and approval of water 

quality standards. 

131.22 EPA promulgation of water quality 

standards. 

Subpart D—Federally Promulgated Water 

Quality Standards 

131.31 Arizona. 

131.32 Pennsylvania. 

131.33 Idaho. 

131.34 Kansas. 

131.35 Colville Confederated Tribes Indian 

Reservation. 

131.36 Toxics criteria for those states not 

complying with Clean Water Act section 

303(c)(2)(B). 

131.37 California. 

131.38 Establishment of numeric criteria for 

priority toxic pollutants for the State of 

California. 

131.40 Puerto Rico. 

131.41 Bacteriological criteria for those 

states not complying with Clean Water 

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

131.42 Antidegradation implementation 

methods for the Commonwealth of Puerto Rico. 

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

SOURCE: 48 FR 51405, Nov. 8, 1983, unless 

otherwise noted. 

Subpart A—General Provisions 

§ 131.1 Scope. 

This part describes the requirements 

and procedures for developing, reviewing, revising, and approving water 

quality standards by the States as authorized by section 303(c) of the Clean 

Water Act. Additional specific procedures for developing, reviewing, revising, and approving water quality standards for Great Lakes States or Great 

Lakes Tribes (as defined in 40 CFR 

132.2) to conform to section 118 of the 

Clean Water Act and 40 CFR part 132, 

are provided in 40 CFR part 132. 

[60 FR 15386, Mar. 23, 1995] 

§ 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 necessary to protect 

the uses. States adopt water quality 

standards to protect public health or 

welfare, enhance the quality of water 

and serve the purposes of the Clean 

Water Act (the Act). ‘‘Serve the purposes of the Act’’ (as defined in sections 101(a)(2) and 303(c) of the Act) 

means that water quality standards 

should, wherever attainable, provide 

water quality for the protection and 

propagation of fish, shellfish and wildlife and for recreation in and on the 

water and take into consideration their 

use and value of public water supplies, 

propagation of fish, shellfish, and wildlife, recreation in and on the water, 

and agricultural, industrial, and other 

purposes including navigation. 

Such standards serve the dual purposes 

of establishing the water quality goals 

for a specific water body and serve as 

the regulatory basis for the establishment of water-quality-based treatment 

controls and strategies beyond the 


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§ 131.3 40 CFR Ch. I (7–1–08 Edition) 

technology-based levels of treatment 

required by sections 301(b) and 306 of 

the Act. 

§ 131.3 Definitions. 

(a) The Act means the Clean Water 

Act (Pub. L. 92–500, as amended (33 

U.S.C. 1251 et seq.)). 

(b) Criteria are elements of State 

water quality standards, expressed as 

constituent concentrations, levels, or 

narrative statements, representing a 

quality of water that supports a particular use. When criteria are met, 

water quality will generally protect 

the designated use. 

(c) Section 304(a) criteria are developed 

by EPA under authority of section 

304(a) of the Act based on the latest 

scientific information on the relationship that the effect of a constituent 

concentration has on particular aquatic species and/or human health. This 

information is issued periodically to 

the States as guidance for use in developing criteria. 

(d) Toxic pollutants are those pollutants listed by the Administrator under 

section 307(a) of the Act. 

(e) Existing uses are 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. 

(f) Designated uses are those uses 

specified in water quality standards for 

each water body or segment whether or 

not they are being attained. 

(g) Use attainability analysis is a 

structured scientific assessment of the 

factors affecting the attainment of the 

use which may include physical, chemical, biological, and economic factors 

as described in § 131.10(g). 

(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-bases effluent 

limitations required by sections 301(b) 

and 306 of the Act. 

(i) Water quality standards are provisions of State or Federal law which 

consist of a designated use or uses for 

the waters of the United States and 

water quality criteria for such waters 

based upon such uses. Water quality 

standards are to protect the public 

health or welfare, enhance the quality 

of water and serve the purposes of the 

Act. 

(j) States include: The 50 States, the 

District of Columbia, Guam, the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the Trust Territory of the Pacific Islands, the Commonwealth of the Northern Mariana Islands, and Indian Tribes that EPA determines to be eligible for purposes of 

water quality standards program. 

(k) Federal Indian Reservation, Indian 

Reservation, or Reservation means all 

land within the limits of any Indian 

reservation under the jurisdiction of 

the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation.’’

(l) Indian Tribe or Tribe means any Indian Tribe, band, group, or community 

recognized by the Secretary of the Interior and exercising governmental authority over a Federal Indian reservation. 

[48 FR 51405, Nov. 8, 1983, as amended at 56 

FR 64893, Dec. 12, 1991; 59 FR 64344, Dec. 14, 

1994] 

§ 131.4 State authority. 

(a) States (as defined in § 131.3) are responsible for reviewing, establishing, 

and revising water quality standards. 

As recognized by section 510 of the 

Clean Water Act, States may develop 

water quality standards more stringent 

than required by this regulation. Consistent with section 101(g) and 518(a) of 

the Clean Water Act, water quality 

standards shall not be construed to supersede or abrogate rights to quantities of water. 

(b) States (as defined in § 131.3) may 

issue certifications pursuant to the requirements of Clean Water Act section 

401. Revisions adopted by States shall 

be applicable for use in issuing State 

certifications consistent with the provisions of § 131.21(c). 

(c) Where EPA determines that a 

Tribe is eligible to the same extent as 

a State for purposes of water quality 

standards, the Tribe likewise is eligible 


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Environmental Protection Agency § 131.7 

to the same extent as a State for purposes of certifications conducted under 

Clean Water Act section 401. 

[56 FR 64893, Dec. 12, 1991, as amended at 59 

FR 64344, Dec. 14, 1994] 

§ 131.5 EPA authority. 

(a) Under section 303(c) of the Act, 

EPA is to review and to approve or disapprove State-adopted water quality 

standards. The review involves a determination of: 

(1) Whether the State has adopted 

water uses which are consistent with 

the requirements of the Clean Water 

Act; 

(2) Whether the State has adopted 

criteria that protect the designated 

water uses; 

(3) Whether the State has followed its 

legal procedures for revising or adopting standards; 

(4) Whether the State standards 

which do not include the uses specified 

in section 101(a)(2) of the Act are based 

upon appropriate technical and scientific data and analyses, and 

(5) Whether the State submission 

meets the requirements included in 

§ 131.6 of this part and, for Great Lakes 

States or Great Lakes Tribes (as defined in 40 CFR 132.2) to conform to 

section 118 of the Act, the requirements of 40 CFR part 132. 

(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 

(a)(5) 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 (a)(5) of 

this section. EPA may also promulgate 

a new or revised standard when necessary to meet the requirements of the 

Act. 

(c) Section 401 of the Clean Water Act 

authorizes EPA to issue certifications 

pursuant to the requirements of section 401 in any case where a State or 

interstate agency has no authority for 

issuing such certifications. 

[48 FR 51405, Nov. 8, 1983, as amended at 56 

FR 64894, Dec. 12, 1991; 60 FR 15387, Mar. 23, 

1995] 

§ 131.6 Minimum requirements for 

water quality standards submission. 

The following elements must be included in each State’s water quality 

standards submitted to EPA for review: 

(a) Use designations consistent with 

the provisions of sections 101(a)(2) and 

303(c)(2) of the Act. 

(b) Methods used and analyses conducted to support water quality standards revisions. 

(c) Water quality criteria sufficient 

to protect the designated uses. 

(d) An antidegradation policy consistent with § 131.12. 

(e) Certification by the State Attorney General or other appropriate legal 

authority within the State that the 

water quality standards were duly 

adopted pursuant to State law. 

(f) General information which will 

aid the Agency in determining the adequacy of the scientific basis of the 

standards which do not include the 

uses specified in section 101(a)(2) of the 

Act as well as information on general 

policies applicable to State standards 

which may affect their application and 

implementation. 

§ 131.7 Dispute resolution mechanism. 

(a) Where disputes between States 

and Indian Tribes arise as a result of 

differing water quality standards on 

common bodies of water, the lead EPA 

Regional Administrator, as determined 

based upon OMB circular A–105, shall 

be responsible for acting in accordance 

with the provisions of this section. 

(b) The Regional Administrator shall 

attempt to resolve such disputes 

where: 

(1) The difference in water quality 

standards results in unreasonable consequences; 

(2) The dispute is between a State (as 

defined in § 131.3(j) but exclusive of all 

Indian Tribes) and a Tribe which EPA 

has determined is eligible to the same 

extent as a State for purposes of water 

quality standards; 


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§ 131.7 40 CFR Ch. I (7–1–08 Edition) 

(3) A reasonable effort to resolve the 

dispute without EPA involvement has 

been made; 

(4) The requested relief is consistent 

with the provisions of the Clean Water 

Act and other relevant law; 

(5) The differing State and Tribal 

water quality standards have been 

adopted pursuant to State and Tribal 

law and approved by EPA; and 

(6) A valid written request has been 

submitted by either the Tribe or the 

State. 

(c) Either a State or a Tribe may request EPA to resolve any dispute 

which satisfies the criteria of paragraph (b) of this section. Written requests for EPA involvement should be 

submitted to the lead Regional Administrator and must include: 

(1) A concise statement of the unreasonable consequences that are alleged 

to have arisen because of differing 

water quality standards; 

(2) A concise description of the actions which have been taken to resolve 

the dispute without EPA involvement; 

(3) A concise indication of the water 

quality standards provision which has 

resulted in the alleged unreasonable 

consequences; 

(4) Factual data to support the alleged unreasonable consequences; and 

(5) A statement of the relief sought 

from the alleged unreasonable consequences. 

(d) Where, in the Regional Administrator’s judgment, EPA involvement is 

appropriate based on the factors of 

paragraph (b) of this section, the Regional Administrator shall, within 30 

days, notify the parties in writing that 

he/she is initiating an EPA dispute resolution action and solicit their written 

response. The Regional Administrator 

shall also make reasonable efforts to 

ensure that other interested individuals or groups have notice of this action. Such efforts shall include but not 

be limited to the following: 

(1) Written notice to responsible 

Tribal and State Agencies, and other 

affected Federal agencies, 

(2) Notice to the specific individual 

or entity that is alleging that an unreasonable consequence is resulting 

from differing standards having been 

adopted on a common body of water, 

(3) Public notice in local newspapers, 

radio, and television, as appropriate, 

(4) Publication in trade journal newsletters, and 

(5) Other means as appropriate. 

(e) If in accordance with applicable 

State and Tribal law an Indian Tribe 

and State have entered into an agreement that resolves the dispute or establishes a mechanism for resolving a 

dispute, EPA shall defer to this agreement where it is consistent with the 

Clean Water Act and where it has been 

approved by EPA. 

(f) EPA dispute resolution actions 

shall be consistent with one or a combination of the following options: 

(1) Mediation. The Regional Administrator may appoint a mediator to mediate the dispute. Mediators shall be 

EPA employees, employees from other 

Federal agencies, or other individuals 

with appropriate qualifications. 

(i) Where the State and Tribe agree 

to participate in the dispute resolution 

process, mediation with the intent to 

establish Tribal-State agreements, 

consistent with Clean Water Act section 518(d), shall normally be pursued 

as a first effort. 

(ii) Mediators shall act as neutral 

facilitators whose function is to encourage communication and negotiation between all parties to the dispute. 

(iii) Mediators may establish advisory panels, to consist in part of representatives from the affected parties, 

to study the problem and recommend 

an appropriate solution. 

(iv) The procedure and schedule for 

mediation of individual disputes shall 

be determined by the mediator in consultation with the parties. 

(v) If formal public hearings are held 

in connection with the actions taken 

under this paragraph, Agency requirements at 40 CFR 25.5 shall be followed. 

(2) Arbitration. Where the parties to 

the dispute agree to participate in the 

dispute resolution process, the Regional Administrator may appoint an 

arbitrator or arbitration panel to arbitrate the dispute. Arbitrators and 

panel members shall be EPA employees, employees from other Federal 

agencies, or other individuals with appropriate qualifications. The Regional 


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Environmental Protection Agency § 131.7 

administrator shall select as arbitrators and arbitration panel members individuals who are agreeable to all parties, are knowledgeable concerning the 

requirements of the water quality 

standards program, have a basic understanding of the political and economic 

interests of Tribes and States involved, 

and are expected to fulfill the duties 

fairly and impartially. 

(i) The arbitrator or arbitration 

panel shall conduct one or more private or public meetings with the parties and actively solicit information 

pertaining to the effects of differing 

water quality permit requirements on 

upstream and downstream dischargers, 

comparative risks to public health and 

the environment, economic impacts, 

present and historical water uses, the 

quality of the waters subject to such 

standards, and other factors relevant 

to the dispute, such as whether proposed water quality criteria are more 

stringent than necessary to support 

designated uses, more stringent than 

natural background water quality or 

whether designated uses are reasonable 

given natural background water quality. 

(ii) Following consideration of relevant factors as defined in paragraph 

(f)(2)(i) of this section, the arbitrator 

or arbitration panel shall have the authority and responsibility to provide 

all parties and the Regional Administrator with a written recommendation 

for resolution of the dispute. Arbitration panel recommendations shall, in 

general, be reached by majority vote. 

However, where the parties agree to 

binding arbitration, or where required 

by the Regional Administrator, recommendations of such arbitration panels may be unanimous decisions. Where 

binding or non-binding arbitration panels cannot reach a unanimous recommendation after a reasonable period 

of time, the Regional Administrator 

may direct the panel to issue a nonbinding decision by majority vote. 

(iii) The arbitrator or arbitration 

panel members may consult with 

EPA’s Office of General Counsel on 

legal issues, but otherwise shall have 

no ex parte communications pertaining 

to the dispute. Federal employees who 

are arbitrators or arbitration panel 

members shall be neutral and shall not 

be predisposed for or against the position of any disputing party based on 

any Federal Trust responsibilities 

which their employers may have with 

respect to the Tribe. In addition, arbitrators or arbitration panel members 

who are Federal employees shall act 

independently from the normal hierarchy within their agency. 

(iv) The parties are not obligated to 

abide by the arbitrator’s or arbitration 

panel’s recommendation unless they 

voluntarily entered into a binding 

agreement to do so. 

(v) If a party to the dispute believes 

that the arbitrator or arbitration panel 

has recommended an action contrary 

to or inconsistent with the Clean 

Water Act, the party may appeal the 

arbitrator’s recommendation to the 

Regional Administrator. The request 

for appeal must be in writing and must 

include a description of the statutory 

basis for altering the arbitrator’s recommendation. 

(vi) The procedure and schedule for 

arbitration of individual disputes shall 

be determined by the arbitrator or arbitration panel in consultation with 

parties. 

(vii) If formal public hearings are 

held in connection with the actions 

taken under this paragraph, Agency requirements at 40 CFR 25.5 shall be followed. 

(3) Dispute resolution default procedure. Where one or more parties (as defined in paragraph (g) of this section) 

refuse to participate in either the mediation or arbitration dispute resolution processes, the Regional Administrator may appoint a single official or 

panel to review available information 

pertaining to the dispute and to issue a 

written recommendation for resolving 

the dispute. Review officials shall be 

EPA employees, employees from other 

Federal agencies, or other individuals 

with appropriate qualifications. Review panels shall include appropriate 

members to be selected by the Regional Administrator in consultation 

with the participating parties. Recommendations of such review officials 

or panels shall, to the extent possible 

given the lack of participation by one 

or more parties, be reached in a manner identical to that for arbitration of 


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§ 131.8 40 CFR Ch. I (7–1–08 Edition) 

disputes specified in paragraphs (f)(2)(i) 

through (f)(2)(vii) of this section. 

(g) Definitions. For the purposes of 

this section: 

(1) Dispute Resolution Mechanism 

means the EPA mechanism established 

pursuant to the requirements of Clean 

Water Act section 518(e) for resolving 

unreasonable consequences that arise 

as a result of differing water quality 

standards that may be set by States 

and Indian Tribes located on common 

bodies of water. 

(2) Parties to a State-Tribal dispute 

include the State and the Tribe and 

may, at the discretion of the Regional 

Administrator, include an NPDES permittee, citizen, citizen group, or other 

affected entity. 

[56 FR 64894, Dec. 12, 1991, as amended at 59 

FR 64344, Dec. 14, 1994] 

§ 131.8 Requirements for Indian Tribes 

to administer a water quality standards program. 

(a) The Regional Administrator, as 

determined based on OMB Circular A–

105, may accept and approve a tribal 

application for purposes of administering a water quality standards program if the Tribe meets the following 

criteria: 

(1) The Indian Tribe is recognized by 

the Secretary of the Interior and meets 

the definitions in § 131.3 (k) and (l), 

(2) The Indian Tribe has a governing 

body carrying out substantial governmental duties and powers, 

(3) The water quality standards program to be administered by the Indian 

Tribe pertains to the management and 

protection of water resources which are 

within the borders of the Indian reservation and held by the Indian Tribe, 

within the borders of the Indian reservation and held by the United States 

in trust for Indians, within the borders 

of the Indian reservation and held by a 

member of the Indian Tribe if such 

property interest is subject to a trust 

restriction on alienation, or otherwise 

within the borders of the Indian reservation, and 

(4) The Indian Tribe is reasonably expected to be capable, in the Regional 

Administrator’s judgment, of carrying 

out the functions of an effective water 

quality standards program in a manner 

consistent with the terms and purposes 

of the Act and applicable regulations. 

(b) Requests by Indian Tribes for administration of a water quality standards program should be submitted to 

the lead EPA Regional Administrator. 

The application shall include the following information: 

(1) A statement that the Tribe is recognized by the Secretary of the Interior. 

(2) A descriptive statement demonstrating that the Tribal governing 

body is currently carrying out substantial governmental duties and powers 

over a defined area. The statement 

should: 

(i) Describe the form of the Tribal 

government; 

(ii) Describe the types of governmental functions currently performed 

by the Tribal governing body such as, 

but not limited to, the exercise of police powers affecting (or relating to) 

the health, safety, and welfare of the 

affected population, taxation, and the 

exercise of the power of eminent domain; and 

(iii) Identify the source of the Tribal 

government’s authority to carry out 

the governmental functions currently 

being performed. 

(3) A descriptive statement of the Indian Tribe’s authority to regulate 

water quality. The statement should 

include: 

(i) A map or legal description of the 

area over which the Indian Tribe asserts authority to regulate surface 

water quality; 

(ii) A statement by the Tribe’s legal 

counsel (or equivalent official) which 

describes the basis for the Tribes assertion of authority and which may include a copy of documents such as 

Tribal constitutions, by-laws, charters, 

executive orders, codes, ordinances, 

and/or resolutions which support the 

Tribe’s assertion of authority; and 

(iii) An identification of the surface 

waters for which the Tribe proposes to 

establish water quality standards. 

(4) A narrative statement describing 

the capability of the Indian Tribe to 

administer an effective water quality 

standards program. The narrative 

statement should include: 

(i) A description of the Indian Tribe’s 

previous management experience 


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Environmental Protection Agency § 131.10 

which may include the administration 

of programs and services authorized by 

the Indian Self-Determination and 

Education Assistance Act (25 U.S.C. 450 

et seq.), the Indian Mineral Development Act (25 U.S.C. 2101 et seq.), or the 

Indian Sanitation Facility Construction Activity Act (42 U.S.C. 2004a); 

(ii) A list of existing environmental 

or public health programs administered by the Tribal governing body and 

copies of related Tribal laws, policies, 

and regulations; 

(iii) A description of the entity (or 

entities) which exercise the executive, 

legislative, and judicial functions of 

the Tribal government; 

(iv) A description of the existing, or 

proposed, agency of the Indian Tribe 

which will assume primary responsibility for establishing, reviewing, implementing and revising water quality 

standards; 

(v) A description of the technical and 

administrative capabilities of the staff 

to administer and manage an effective 

water quality standards program or a 

plan which proposes how the Tribe will 

acquire additional administrative and 

technical expertise. The plan must address how the Tribe will obtain the 

funds to acquire the administrative 

and technical expertise. 

(5) Additional documentation required by the Regional Administrator 

which, in the judgment of the Regional 

Administrator, is necessary to support 

a Tribal application. 

(6) Where the Tribe has previously 

qualified for eligibility or ‘‘treatment 

as a state’’ under a Clean Water Act or 

Safe Drinking Water Act program, the 

Tribe need only provide the required 

information which has not been submitted in a previous application. 

(c) Procedure for processing an Indian Tribe’s application. 

(1) The Regional Administrator shall 

process an application of an Indian 

Tribe submitted pursuant to § 131.8(b) 

in a timely manner. He shall promptly 

notify the Indian Tribe of receipt of the 

application. 

(2) Within 30 days after receipt of the 

Indian Tribe’s application the Regional 

Administrator shall provide appropriate notice. Notice shall: 

(i) Include information on the substance and basis of the Tribe’s assertion of authority to regulate the quality of reservation waters; and 

(ii) Be provided to all appropriate 

governmental entities. 

(3) The Regional Administrator shall 

provide 30 days for comments to be 

submitted on the Tribal application. 

Comments shall be limited to the 

Tribe’s assertion of authority. 

(4) If a Tribe’s asserted authority is 

subject to a competing or conflicting 

claim, the Regional Administrator, 

after due consideration, and in consideration of other comments received, 

shall determine whether the Tribe has 

adequately demonstrated that it meets 

the requirements of § 131.8(a)(3). 

(5) Where the Regional Administrator 

determines that a Tribe meets the requirements of this section, he shall 

promptly provide written notification 

to the Indian Tribe that the Tribe is 

authorized to administer the Water 

Quality Standards program. 

[56 FR 64895, Dec. 12, 1991, as amended at 59 

FR 64344, Dec. 14, 1994] 

Subpart B—Establishment of Water 

Quality Standards 

§ 131.10 Designation of uses. 

(a) Each State must specify appropriate water uses to be achieved and 

protected. The classification of the waters of the State must take into consideration the use and value of water 

for public water supplies, protection 

and propagation of fish, shellfish and 

wildlife, recreation in and on the 

water, agricultural, industrial, and 

other purposes including navigation. In 

no case shall a State adopt waste 

transport or waste assimilation as a 

designated use for any waters of the 

United States. 

(b) In designating uses of a water 

body and the appropriate criteria for 

those uses, the State shall take into 

consideration the water quality standards of downstream waters and shall 

ensure that its water quality standards 

provide for the attainment and maintenance of the water quality standards of 

downstream waters. 

(c) States may adopt sub-categories 

of a use and set the appropriate criteria to reflect varying needs of such 

sub-categories of uses, for instance, to 


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