Vol. 78 Wednesday, 

No. 171 September 4, 2013 

Part II 

Environmental Protection Agency 

40 CFR Part 131 

Water Quality Standards Regulatory Clarifications; Proposed Rule 


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54518 Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / Proposed Rules 

1Hereafter referred to as ‘‘states and authorized 

tribes’’ or ‘‘states and tribes.’’ ‘‘State’’ in the Clean 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2010–0606; FRL–9839–7] 

RIN 2040–AF 16 

Water Quality Standards Regulatory 

Clarifications 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing changes to 

the federal water quality standards 

(WQS) regulation which helps 

implement the Clean Water Act. The 

changes will improve the regulation’s 

effectiveness in restoring and 

maintaining the chemical, physical, and 

biological integrity of the nation’s 

waters. The EPA is seeking comments 

from interested parties on these 

proposed revisions. The core of the 

current regulation has been in place 

since 1983; since then, a number of 

issues have been raised by states, tribes, 

or stakeholders or identified by the EPA 

in the implementation process that will 

benefit from clarification and greater 

specificity. The proposed rule addresses 

the following key program areas: 

Administrator’s determinations that 

new or revised WQS are necessary, 

designated uses, triennial reviews, 

antidegradation, variances to WQS, and 

compliance schedule authorizing 

provisions. 

DATES: Comments must be received on 

or before December 3, 2013. 

ADDRESSES: Submit your comments, 

identified by Docket identification (ID) 

No. EPA–HQ–OW–2010–0606, by one of 

the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Email: ow-docket@epa.gov. 

• Mail: Water Docket, Environmental 

Protection Agency, Mail Code 2822T, 

1200 Pennsylvania Ave. NW., 

Washington, DC 20460. Attention: 

Docket ID No. EPA–HQ–OW–2010– 

0606. 

• Hand Delivery: EPA Docket Center, 

EPA West Room 3334, 1301 

Constitution Ave. NW., Washington, DC 

20004, Attention: Docket ID No. EPA– 

HQ–OW–2010–0606. Such deliveries 

are only accepted during the Docket 

Center’s normal hours of operation. 

Special arrangements should be made 

for deliveries of boxed information by 

calling 202–566–2426. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–OW–2010– 

0606. The EPA’s policy is that all 

comments received will be included in 

the public docket without change and 

may be made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http://

www.regulations.gov or email. The 

http://www.regulations.gov Web site is 

an ‘‘anonymous access’’ system, which 

means the EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an email 

comment directly to the EPA without 

going through www.regulations.gov your 

email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, the EPA recommends that 

you include your name and other 

contact information in the body of your 

comment and with any disc you submit. 

If the EPA cannot read your comment 

due to technical difficulties and cannot 

contact you for clarification, the EPA 

may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about the EPA’s public docket visit the 

Docket Center homepage at http://

www.epa.gov/epahome/dockets.htm. 

Docket: All documents in the docket 

are listed in the http://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available (e.g., CBI or other 

information whose disclosure is 

restricted by statute). Certain other 

materials, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http://

www.regulations.gov or in hard copy at 

the Office of Water Docket Center, EPA/ 

DC, EPA West, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. 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; 

the telephone number for the Office of 

Water Docket Center is (202) 566–2426. 

FOR FURTHER INFORMATION CONTACT: 

Janita Aguirre, Standards and Health 

Protection Division, Office of Science 

and Technology (4305T), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue NW., Washington, DC 20460; 

telephone number: 202–566–1860; fax 

number: 202–566–0409; email address: 

WQSRegulatoryClarifications@epa.gov. 

SUPPLEMENTARY INFORMATION: This 

supplementary information section is 

organized as follows: 

Table of Contents 

I. General Information 

A. Does this action apply to me? 

B. What should I consider as I prepare my 

comments for the EPA? 

II. Background 

A. What is the statutory and regulatory 

history of the WQS regulation and 

program? 

B. How has the public provided EPA input 

on the national WQS Program in the 

past? 

C. Why is the EPA proposing changes to 

the federal WQS regulation? 

III. Program Areas for Proposed Regulatory 

Clarifications 

A. Introduction 

B. Administrator’s Determinations That 

New or Revised WQS Are Necessary 

C. Designated Uses 

D. Requirements of Triennial Reviews 

E. Antidegradation Implementation 

F. WQS Variances 

G. Provisions Authorizing the Use of 

Permit-Based Compliance Schedules 

H. Other Changes 

IV. When does this action take effect? 

V. Economic Impacts on State and Tribal 

WQS Programs 

VI. 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 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132 (Federalism) 

F. Executive Order 13175 

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 

I. General Information 

A. Does this action apply to me? 

State and tribal governments 

responsible for administering or 

overseeing water quality programs may 

be directly affected by this rulemaking, 

as states and authorized tribes1 may 


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Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / Proposed Rules 54519 

Water Act and this document refers to a state, the 

District of Columbia, the Commonwealth of Puerto 

Rico, the Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana 

Islands. 

need to consider and implement new 

provisions, or revise existing provisions, 

in their water quality standards (WQS or 

standards). Entities such as industrial 

dischargers or publicly owned treatment 

works that discharge pollutants to 

waters of the United States may be 

indirectly affected by this rulemaking 

because WQS may be used in 

determining permit limits under the 

National Pollutant Discharge 

Elimination System (NPDES) or in 

implementing other Clean Water Act 

(CWA or the Act) regulatory programs. 

Citizens concerned with water quality 

and WQS implementation may also be 

interested in this rulemaking, although 

they might not be directly impacted. 

Categories and entities that may 

potentially be affected include the 

following: 

Category Examples of potentially affected entities 

States and Tribes .................................... States and authorized tribes (tribes eligible to administer WQS under the CWA). 

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. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for entities that may be directly or 

indirectly affected by this action. It lists 

the types of entities of which the EPA 

is aware could be potentially affected by 

this action. Other types of entities not 

listed in the table might be affected 

through implementation of WQS that 

are revised as a result of this rule. If you 

have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. What should I consider as I prepare 

my comments for the EPA? 

1. Resubmitting Relevant Comments 

From 2010 Stakeholder and Public 

Listening Sessions 

From August through December 2010, 

the EPA held multiple listening sessions 

with stakeholders and the public, as 

well as consultation sessions with 

states, tribes, and representatives of 

state and local elected officials, 

concerning the general directions of this 

proposed rule. The EPA considered the 

views and comments received from 

these sessions in developing this 

proposal. The proposal published today 

has evolved substantially from the 

materials the EPA shared at that time. If 

you submitted comments in response to 

any of those sessions and wish for these 

comments to be considered during the 

public comment period for this 

proposed rulemaking, you must 

resubmit such comments to the EPA in 

accordance with the instructions 

outlined in this document. 

2. Submitting Confidential Business 

Information (CBI) 

Do not submit this information to the 

EPA through http://www.regulations.gov 

or email. Clearly mark the part or all of 

the information that you claim to be 

CBI. For CBI information in a disc that 

you mail to the EPA, mark the outside 

of the disc as CBI and then identify 

electronically within the disc the 

specific information that is claimed as 

CBI. In addition to one complete version 

of the comment that includes 

information claimed as CBI, a copy of 

the comment that does not contain the 

information claimed as CBI must be 

submitted for inclusion in the public 

docket. Information so marked will not 

be disclosed except in accordance with 

procedures set forth in 40 Code of 

Federal Regulations (CFR) part 2. 

3. Tips for Preparing Your Comments 

When submitting comments, 

remember to: 

• Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

• Follow directions. The agency may 

ask you to respond to specific questions 

or organize comments by referencing a 

CFR part or section number. 

• Submit any and all comments on 

any portion of the rulemaking that you 

wish to be considered. 

• Explain why you agree or disagree, 

suggest alternatives, and substitute 

language for your requested changes. 

• Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

• If you provide an estimate of 

potential costs or burdens, explain how 

you arrived at your estimate in 

sufficient detail to allow for it to be 

reproduced. 

• Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

• Explain your views as clearly as 

possible. 

• Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Background 

A. What is the statutory and regulatory 

history of the WQS regulation and 

program? 

The CWA—initially enacted as the 

Federal Water Pollution Control Act 

Amendments of 1972 (Pub. L. 92–500) 

and subsequent amendments— 

establishes the basic structure in place 

today for regulating pollutant discharges 

into the waters of the United States. In 

the Act, Congress established the 

national objective 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 for recreation 

in and on the water’’ (sections 101(a) 

and 101(a)(2)). 

The CWA establishes the basis for the 

current WQS regulation and program. 

Section 301 of the Act provides that 

‘‘the discharge of any pollutant by any 

person shall be unlawful’’ except in 

compliance with specific requirements 

of Title III and IV of the Act, including 

industrial and municipal effluent 

limitations specified under section 304 

and ‘‘any more stringent limitation, 

including those necessary to meet WQS, 

treatment standards or schedule of 

compliance established pursuant to any 

State law or regulation.’’ Section 303(c) 

of the Act addresses the development of 

state and authorized tribal WQS and 

provides for the following: 

(1) WQS shall consist of designated 

uses and water quality criteria based 

upon such uses; 

(2) States and authorized tribes shall 

establish WQS considering the 

following possible uses for their 

waters—propagation of fish, shellfish 

and wildlife, recreational purposes, 

public water supply, agricultural and 


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2 In this preamble, the EPA uses the term ‘‘water 

quality standards regulation’’ to mean subparts A, 

B, and C of part 131. These three subparts, 

comprising §§ 131.1 through 131.22, contain 

general provisions, requirements for establishing 

standards, and procedures for review and revision 

of standards, respectively. Part 131 also includes a 

subpart D that contains the text of WQS the EPA 

has promulgated to replace or augment state and 

tribal standards. 

3First edition, December 1983; second edition, 

EPA 823–B–94–005a, August 1994. 4First edition, EPA 440/4–85–032, September 

1985; revised edition, EPA 505/2–90–001, March 

1991. 

industrial water supplies, navigation, 

and other uses; 

(3) State and tribal standards must 

protect public health or welfare, 

enhance the quality of water, and serve 

the purposes of the Act; 

(4) States and tribes must review their 

standards at least once every 3 years; 

and 

(5) The EPA is required to review any 

new or revised state and tribal 

standards, and is also required to 

promulgate federal standards where the 

EPA finds that new or revised state or 

tribal standards are not consistent with 

applicable requirements of the Act or in 

situations where the Administrator 

determines that federal standards are 

necessary to meet the requirements of 

the Act. 

The EPA established the core of the 

current WQS regulation in a final rule 

issued in 1983.2 This rule strengthened 

previous provisions that had been in 

place since 1977 and moved them to a 

new 40 CFR part 131 (54 FR 51400, 

November 8, 1983). The resulting 

regulation describes how the WQS 

envisioned in the CWA are to be 

administered. It clarifies the content of 

standards and establishes more detailed 

provisions for implementing the 

provisions of the Act. The following are 

examples of how the regulation has 

interpreted and implemented the CWA 

provisions regarding standards: 

• Establishes procedures to recognize 

the importance of designating beneficial 

uses to achieve the CWA section 

101(a)(2) interim goal with regard to 

protecting aquatic life and recreational 

uses, and to provide states and tribes the 

option of establishing sub-categories of 

uses, such as cold water and warm 

water aquatic life designations 

(§ 131.10). 

• Provides detail concerning the 

adoption of numeric water quality 

criteria, including authorizing the 

modification of the EPA’s national 

recommended criteria to reflect sitespecific conditions, the use of criteria 

methodologies different from the EPA’s 

recommendations so long as they are 

scientifically defensible, and the use of 

narrative criteria where numeric criteria 

cannot be derived or to supplement 

numeric criteria (§ 131.11). 

• Incorporates and clarifies the Act’s 

emphasis on the importance of 

preserving existing uses and identifying 

and preserving high quality and 

outstanding resource waters through 

longstanding antidegradation 

provisions. These provisions are 

designed to protect existing uses and the 

level of water quality necessary to 

support these uses; to protect high 

quality waters and provide a transparent 

analytic process for states and tribes to 

determine whether limited degradation 

of such waters is appropriate and 

necessary (§ 131.12). 

In support of the 1983 regulation, the 

EPA has issued a number of guidance 

documents, such as the ‘‘Water Quality 

Standards Handbook’’ (WQS 

Handbook),3 that have provided 

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. The EPA also 

developed the ‘‘Technical Support 

Document for Water Quality-Based 

Toxics Control’’ 4 (TSD) that provided 

additional guidance for implementing 

state and tribal WQS. 

The part 131 regulation has been 

modified twice since 1983. First, in 

1991 the EPA added §§ 131.7 and 131.8 

regarding tribes, pursuant to section 518 

of the CWA (56 FR 64893, December 12, 

1991). Section 518, which was enacted 

in 1987, included provisions extending 

the ability to participate in the WQS 

program to Indian tribes. Second, in 

2000 the EPA promulgated § 131.21(c), 

commonly known as the ‘‘Alaska Rule,’’ 

to clarify that new and revised 

standards adopted by states and tribes 

and submitted to the EPA after May 30, 

2000 become applicable standards for 

CWA purposes only when approved by 

the EPA (65 FR 24641, April 27, 2000). 

B. How has the public provided EPA 

input on the national WQS Program in 

the past? 

The EPA received comments, data, 

and information from over 6,000 

commenters in developing ‘‘Final Water 

Quality Guidance for the Great Lakes 

System’’ in 1995 (60 FR 15366, March 

23, 1995). The final Guidance 

represented more than six years of 

intensive, cooperative efforts that 

included participation by the eight 

Great Lakes states, the EPA, and other 

Federal agencies in open dialogue with 

citizens, local governments, 

municipalities, academia, the 

environmental community, and 

industries located in the Great Lakes 

ecosystem. This process entailed a 

thorough review and analysis of the 

federal water quality program and 

opportunities for greater clarity, focus, 

and improved implementation. The 

final Guidance is codified in 40 CFR 

part 132 and helps establish consistent, 

enforceable, and long-term protections 

from all types of pollutants, with shortterm emphasis on the types of bioaccumulative contaminants that 

accumulate in the food web and pose a 

threat to the Great Lakes System. While 

not all provisions of the Final Guidance 

may be necessary or appropriate for the 

national Water Quality Standards 

Program, the EPA considered the input 

received from the public through the 

development of the Final Guidance 

during the preparation of this proposed 

rule. 

In 1998, the 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 a 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 tribal WQS 

programs. (63 FR 36742, July 7, 1998). 

In response, the EPA received over 

3,200 specific written comments from 

over 150 comment letters. The EPA also 

held three public meetings during the 

180-day comment period where 

additional comments were received and 

discussed. 

Although the EPA chose not to move 

forward with a rulemaking after the 

ANRPM, as a result of the input 

received, the EPA identified a number 

of high priority issue areas for which the 

Agency has developed guidance, 

provided technical assistance and 

continued further discussion and 

dialogue to assure more effective 

program implementation. For example, 

many ANPRM commenters expressed 

the need for additional assistance on 

establishing designated uses of water 

bodies and the process to follow when 

making designated uses more or less 

protective. In order to receive input 

from a broad set of stakeholders on 

these topics, the EPA held a follow-up 

national symposium on designated uses 

on June 3–4, 2002 in Washington, DC. 

Approximately 200 interested citizens, 

government officials, and regulated 

parties attended this open meeting, 

which included presentations from a 

variety of stakeholders and an expert 

panel representing different 


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Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / Proposed Rules 54521 

5Proceedings from the national symposium on 

designated uses can be found at http://

water.epa.gov/scitech/swguidance/standards/uses/

symposium_index.cfm. 

6A summary of the co-regulator workshops and 

a link to the use attainability analysis (UAA) case 

studies can be found at http://water.epa.gov/

scitech/swguidance/standards/uses/uaa/info.cfm. 

viewpoints.5 In addition, the EPA held 

four co-regulator workshops between 

February 2005 and April 2006 with 

state, interstate, and tribal partners, and 

gathered further input and feedback on 

the establishment, adjustment, and 

implementation of designated uses.6

C. Why is the EPA proposing changes to 

the Federal WQS regulation? 

The core requirements of the current 

WQS regulation have been in place for 

over 30 years. These requirements have 

provided a strong foundation for water 

quality-based controls, including water 

quality assessments, impaired waters 

lists, and total maximum daily loads 

(TMDLs) under CWA section 303(d), as 

well as for water quality-based effluent 

limits (WQBELs) in NPDES discharge 

permits under CWA section 402. As 

with the development and operation of 

any program, however, a number of 

policy and technical issues have 

recurred over the past 30 years in 

individual standards reviews, 

stakeholder comments, and litigation 

that the EPA believes would be 

addressed and resolved more efficiently 

by clarifying, updating and revising the 

federal WQS regulation to assure greater 

public transparency, better stakeholder 

information, and more effective 

implementation. 

From 2008 through 2010, the EPA 

held ongoing discussions with state and 

tribal partners and other stakeholders. 

These discussions addressed a widerange of issues, from which a subset has 

been identified as significant areas of 

continuing concern. In 2010, the EPA 

held listening sessions with the public, 

states and tribes to obtain feedback on 

this subset of issues. The agenda, 

background material, list of participants 

and the public transcripts may be 

viewed at http://water.epa.gov/

lawsregs/lawsguidance/wqs_

listening.cfm#records. Section III of the 

EPA’s proposal describes the key areas 

the EPA has chosen to address based on 

input received and the EPA’s proposed 

regulatory approaches. The EPA 

believes that states, tribes, other 

stakeholders, and the public will benefit 

from clarification in these key areas to 

better understand and make proper use 

of available CWA tools and flexibilities, 

while maintaining open and transparent 

public participation. Clear regulatory 

requirements and improved 

implementation will provide a more 

transparent and well-defined pathway 

for restoring and maintaining the 

biological, chemical, and physical 

integrity of the nation’s waters. The 

changes the EPA is proposing today add 

or modify specific regulatory provisions 

to address key areas described below. 

III. Program Areas for Proposed 

Regulatory Clarifications 

A. Introduction 

As discussed in section II.C, the EPA 

has had ongoing dialogue with states, 

tribes and stakeholders on key issues 

that are central to assuring effective 

implementation of the WQS program. 

As part of this process, the Agency has 

considered several fundamental 

questions in evaluating opportunities to 

improve implementation of the WQS 

program including which recurring 

implementation issues would benefit 

most from a regulatory clarification or 

update, whether there are emerging 

issues that could be more effectively 

addressed through regulatory revisions, 

whether the regulation continues to 

have the appropriate balance of 

consistency and flexibility for states and 

tribes, and whether the resulting 

program effectively facilitates public 

participation in standards decisions. 

As a result of this evaluation and 

consideration of continuing input from 

states, tribes and stakeholders, the EPA 

is proposing changes to key program 

areas of its WQS regulation at 40 CFR 

part 131 that the Agency believes will 

result in improved regulatory clarity 

and more effective program 

implementation, and lead to 

environmental improvements in water 

quality. This proposed rulemaking 

requests comment on regulatory 

revisions in the following six key issue 

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) compliance schedule 

authorizing provisions. 

B. Administrator’s Determinations That 

New or Revised WQS Are Necessary 

1. The EPA Proposal 

The EPA is proposing to amend 

paragraph (b) of § 131.22 to add a 

requirement that an Administrator’s 

determination must be signed by the 

Administrator or his or her duly 

authorized delegate, and must include a 

statement that the document is a 

determination for purposes of section 

303(c)(4)(B) of the Act. 

2. Background and Rationale for 

Revision 

Section 303(c)(4)(B) of the CWA 

provides the EPA Administrator with 

authority to determine that a new or 

revised WQS is necessary to meet the 

CWA requirements, typically in those 

situations where a state or tribe fails or 

is unable to act in a manner consistent 

with the CWA. Such a determination is 

made at the Administrator’s discretion, 

after evaluating all relevant factors. An 

Administrator’s determination triggers 

the requirement for the EPA to promptly 

prepare and publish proposed 

regulations setting forth a revised or 

new WQS for the waters of the United 

States involved, and for the EPA to 

promulgate such WQS unless the state 

or tribe adopts and the EPA approves 

such WQS before the EPA 

promulgation. 

The EPA is concerned that the process 

whereby the Administrator determines 

that new or revised standards are 

necessary is not always clearly 

understood or interpreted by the public 

and stakeholders. In some instances, 

this lack of understanding has led to a 

mistaken conclusion that the EPA has 

made a CWA 303(c)(4)(B) determination 

when, in fact, the EPA did not make nor 

intend to make a determination. For 

example, Agency memoranda or 

documents articulating areas where 

states’ WQS may need improvements 

have sometimes been construed or 

alleged by stakeholders to be official 

Administrator determinations that 

obligate the EPA to propose and 

promulgate federal WQS for such states. 

In order to ensure effective 

implementation of the national WQS 

program, to provide direct, clear, and 

transparent feedback on state and tribal 

actions, and to maintain an open and 

constructive dialogue with states, tribes 

and stakeholders on important water 

quality issues, it is essential that the 

EPA have the ability to provide 

feedback, and states and tribes have the 

opportunity to consider and evaluate 

the Agency’s views, without fear of 

litigation triggering a duty on the part of 

the EPA to propose and promulgate 

WQS before either a state, tribe or the 

Agency believes such a course is 

appropriate or necessary. 

The EPA believes that this revision 

would establish a more transparent 

process for the Administrator to 

announce any determination made 

under section 303(c)(4)(B) of the Act. 

Such a revision will allow the EPA to 

effectively provide direct and specific 

written recommendations to states and 

tribes on areas where WQS 

improvements should be considered, 


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54522 Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / Proposed Rules 

7See 40 CFR 131.2; 131.5(a)(4); 131.6(a),(f); 

131.10(g), (j), (k). 

8See 40 CFR 131.3(g). A UAA is a structured 

scientific assessment of the factors affecting the 

attainment of the use that may include physical, 

chemical, biological, and economic factors as 

described in § 131.10(g). 

9EPA’s ‘‘rebuttable presumption’’ that the uses 

specified in CWA section 101(a)(2) are presumed 

attainable, unless demonstrated to be unattainable 

through a UAA, has been upheld in Idaho Mining 

Association v. Browner, 90 F. Supp. 2d 1078 (D. 

Idaho 2000). 

10http://water.epa.gov/scitech/swguidance/

standards/upload/2000_10_31_standards_

shellfish.pdf. 

without the possibility that such 

recommendations will be construed as a 

determination that obligates the EPA to 

propose and promulgate new or revised 

standards. 

The public’s ability under Section 

553(e) of the Administrative Procedure 

Act (5 U.S.C. 553(e)) to petition the EPA 

to issue, amend, or repeal a rule, would 

not be affected by this proposed 

revision. 

The EPA invites comments on the 

proposed amendment to paragraph (b) 

of § 131.22. The EPA also invites 

comment on any other options it should 

consider or on the interpretations 

expressed in this section. 

C. Designated Uses 

1. The EPA Proposal 

First, the EPA is proposing to amend 

paragraph (g) at § 131.10 to provide that 

where a state or tribe adopts new or 

revised water quality standards based 

on a use attainability analysis (UAA), it 

must adopt the highest attainable use 

(HAU). States and tribes must also adopt 

criteria, as specified in § 131.11(a), to 

protect that use. The EPA is also 

proposing to add a definition of HAU at 

§ 131.3(m). Specifically, the EPA is 

proposing to define HAU as ‘‘the aquatic 

life, wildlife, and/or recreation use that 

is both closest to the uses specified in 

section 101(a)(2) of the Act and 

attainable, as determined using best 

available data and information through 

a use attainability analysis defined in 

§ 131.3(g).’’ 

Second, the EPA is making 

appropriate edits to § 131.10(g) to be 

clear that the factors listed in § 131.10(g) 

must be used when a UAA is required 

by § 131.10(j), and is restructuring 

§ 131.10(k) to clearly articulate when a 

UAA is not required. 

2. Background 

Designated uses communicate a 

state’s or tribe’s environmental 

management objectives for its waters 

and drive on-the-ground water quality 

decision-making and improvements. To 

establish appropriate WQS, states and 

tribes define the water quality goals of 

a water body first by designating the 

use(s) and second by setting criteria that 

protect those uses. WQS are the 

foundation for other CWA requirements 

applicable to a water body, such as 

WQBELs for point source dischargers, as 

well as assessment of waters and 

establishment of TMDLs for waters not 

meeting applicable WQS. Designated 

uses play such an important role in the 

effective implementation of the CWA. 

The EPA believes it is essential to 

provide clear and concise regulatory 

requirements for states and tribes to 

follow (1) when adopting a use specified 

in section 101(a)(2) or sub-categories of 

such uses for a water body for the first 

time, or (2) when removing or revising 

a currently adopted use specified in 

section 101(a)(2) of the Act, or a subcategory of such a use. This is 

particularly important in light of 

recurring input and questions on this 

issue and the potential for conflicting 

interpretations and inconsistent case-bycase WQS program implementation. 

Under section 303 (33 U.S.C. 1313) of 

the CWA, states and authorized tribes 

are required to develop WQS for waters 

of the United States within their state. 

WQS shall include designated use or 

uses to be made of the water and criteria 

to protect those uses. Such standards 

shall be established taking into 

consideration the use and value of 

waters for public water supplies, 

propagation of fish and wildlife, 

recreation, agricultural uses, industrial 

uses, navigation and other purposes 

(CWA 303(c)(2)(A)). Designated uses are 

defined at 40 CFR 131.3(f) as the ‘‘uses 

specified in water quality standards for 

each water body or segment whether or 

not they are being attained.’’ A ‘‘use’’ is 

a particular function of, or activity in, a 

particular water body that requires a 

specific level of water quality. 

Section 101(a)(2) of the CWA 

establishes the national goal that 

‘‘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’’ be 

achieved by July 1, 1983. CWA section 

303(c)(2)(A) requires state and tribal 

WQS to ‘‘protect the public health or 

welfare, enhance the quality of the 

water and serve the purposes of this 

[Act].’’ The WQS regulation at 40 CFR 

part 131 interprets and implements 

these provisions through requirements 

that WQS protect the uses specified in 

section 101(a)(2) of the Act unless those 

uses are shown to be unattainable, 

effectively creating a rebuttable 

presumption of attainability.7 Thus, it 

has been the EPA’s interpretation that 

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

the Act are presumed attainable unless 

a state or tribe affirmatively 

demonstrates through a UAA8 that 

101(a)(2) uses are not attainable as 

provided by one of six regulatory factors 

at § 131.10(g).9

The current WQS regulation at 40 

CFR 131.10 requires states and tribes to 

specify appropriate uses to be achieved 

and protected; requires that WQS ensure 

attainment and maintenance of WQS of 

downstream waters; allows for subcategories of uses (e.g., to differentiate 

between cold water and warm water 

fisheries) and seasonal uses; describes 

when uses are attainable; lists six factors 

of which at least one must be satisfied 

to justify removal of uses specified in 

Section 101(a)(2) that are not existing 

uses; prohibits removal of existing uses; 

requires states and authorized tribes to 

revise WQS to reflect uses that are 

presently being attained but not 

designated; and establishes when a state 

or tribe is or is not required to conduct 

a UAA. States and tribes have flexibility 

when managing their designated uses 

consistent with the CWA and 

implementing regulation. 

More specifically, the current WQS 

regulation requires a UAA when 

designating uses that do not include the 

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

CWA, when removing a designated use 

specified in section 101(a)(2) of the Act, 

or when adopting sub-categories of such 

uses that require less stringent criteria. 

The phrase ‘‘uses specified in section 

101(a)(2) of the Act’’ refers to uses that 

provide for the protection and 

propagation of fish (including aquatic 

invertebrates), 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.10 ‘‘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 of waters with 

the intent of reducing variability within 

the group. 40 CFR 131.10(c) provides 

that states and authorized tribes may 

adopt sub-categories of a use and set the 

appropriate criteria to reflect varying 

needs of such sub-categories of uses. 

States and tribes have broad discretion 

to determine the appropriate level of 

specificity to use in identifying and 

defining designated uses, and nothing in 

this proposal is intended to narrow that 

discretion. However, the EPA has found 

that the clearer, more accurate, and 


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11EPA notes that a use may meet the description 

of a ‘‘sub-category of a use specified in section 

101(a)(2) of the Act,’’ but not provide an equal level 

of protection as a use specified in section 101(a)(2) 

of the Act. If a state wishes to designate such a subcategory, a UAA would be required, consistent with 

§ 131.10(j). 

12See http://water.epa.gov/scitech/swguidance/

standards/upload/Smithee-existing-uses-2008-09- 

23.pdf. 

refined the designated uses are in 

describing the state’s or tribe’s objective 

for a water body, the more effective 

those use designations can be in driving 

the management actions necessary to 

restore and protect water quality.11

The current regulation at § 131.10(g) 

and (h)(1) provides that states and tribes 

may not remove a designated use if it 

would also remove an existing use 

unless a use requiring more stringent 

criteria is added. 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.’’ Existing 

uses are known to be ‘‘attained’’ when 

both the use and the water quality 

necessary to support the use has been 

achieved.12 The EPA recognizes, 

however, that all the necessary data may 

not be available. Where data may be 

limited, inconclusive, or not available, 

states and tribes have discretion to 

determine whether an existing use has 

been attained, based on either the use or 

the water quality. It is important to note 

that the prohibition on removing an 

existing use is not intended to apply to 

a situation where the state or tribe 

wishes to remove a use where removal 

would result in improving the condition 

of a water body. The intent of the 

regulation is to further the objective in 

CWA section 101(a) to ‘‘restore and 

maintain the chemical, physical, and 

biological integrity’’ of the nation’s 

waters, not to prevent actions that make 

the water body more like its minimally 

impacted condition. For example, if a 

warm water fishery exists behind a dam, 

the existing use provision would not 

prevent the state from removing that 

dam because doing so would likely 

restore the natural cold water aquatic 

ecosystem. 

3. Rationale for Revision 

Adoption of Highest Attainable Use 

As discussed above, states and tribes 

have flexibility to designate and revise 

uses in accordance with the provisions 

of § 131.10 which implements the 

requirement in 303(c)(2)(A) that 

standards shall be set to serve the 

purposes of the Act as set forth in 

Section) 101(a)(2) and 303(c)(2)(A). 

However, the EPA believes that it may 

be appropriate to provide greater clarity 

in the regulations implementing this 

requirement. For example, as part of the 

UAA process, a state or 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 goals of 

the CWA are not served by simply 

removing the aquatic life use 

designation and applicable criteria 

without determining whether there is 

some alternate 101(a)(2) use or 

subcategory of such a use that is feasible 

to attain. The UAA process can be used 

to identify the highest aquatic life use 

that is attainable (i.e., highest attainable 

use). Under this proposal, the state or 

tribe would be required to designate that 

highest attainable use. However, as 

noted above, states and tribes have 

broad discretion to determine the 

appropriate level of specificity to use in 

identifying and defining designated 

uses, and nothing in this proposal is 

intended to narrow that discretion. To 

further clarify this in rule text, the 

proposal would add the following 

language to 131.10(g): ‘‘To meet this 

requirement, States may, at their 

discretion, utilize their current use 

categories or subcategories, develop new 

use categories or subcategories, or adopt 

another use which may include a 

location-specific use.’’ Thus, while a 

state or tribe may wish to establish a 

new or revised use category or 

subcategory to meet the proposed HAU 

requirement, the state or tribe could also 

comply with this requirement by 

adopting the highest attainable use from 

its currently established use categories 

or subcategories or by adopting a 

location-specific use, or another 

defensible approach. 

The EPA’s current regulation at 40 

CFR 131.6(a) requires that each state’s or 

tribe’s water quality standards 

submitted to the EPA for review must 

include ‘‘use designations consistent 

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

and 303(c)(2) of the Act.’’ Sections 

131.10(g) and 131.10(j) implement the 

CWA by authorizing a state or tribe to 

designate uses that do not include the 

uses specified in section 101(a)(2) or to 

remove protection for a use specified in 

section 101(a)(2) (or subcategory of such 

a use) only through a UAA. If the state 

or tribe demonstrates through a UAA 

that a 101(a)(2) use, or a subcategory of 

such a use, is not attainable, then in 

order to comply with this regulatory 

requirement, the state or tribe will need 

to adopt use designations that continue 

to serve the 101(a)(2) goal by protecting 

the highest attainable use unless the 

state or tribe has shown that no use 

specified in section 101(a)(2) is 

attainable. 

This proposal is intended to clearly 

articulate a requirement to adopt the 

HAU in the EPA’s regulation. HAU is 

defined in this proposal as ‘‘the aquatic 

life, wildlife, and/or recreation use that 

is both closest to the uses specified in 

section 101(a)(2) of the Act and 

attainable, as determined using best 

available data and information through 

a use attainability analysis defined in 

§ 131.3(g).’’ With this definition, the 

EPA recognizes and affirms the primary 

role accorded to states and tribes under 

the CWA in establishing categories of 

designated uses and assigning those 

uses to specific water bodies within 

their jurisdiction. The EPA intends for 

states and tribes to use their existing use 

classification scheme to meet the HAU 

requirement whenever the state or tribe 

determines that it is appropriate to do 

so. The EPA is not requiring states and 

tribes to revise their use categorization 

scheme by developing new use 

categories or subcategories, although 

states and tribes are encouraged to 

develop them if they find it practical 

and appropriate to do so. While the EPA 

believes that there is often value in 

specifying more narrowly targeted 

aquatic life uses (e.g., warm water or 

cold water fishery), the EPA also 

recognizes that it may not be practical 

for states or tribes to adopt fine 

gradations of aquatic life uses in many 

cases. The proposed rule would thus not 

affect a state or tribe’s discretion to 

determine the appropriate level of 

specificity in establishing designated 

uses. 

When adopting the HAU, states and 

tribes must also adopt criteria to protect 

that use, as specified in § 131.11(a). 

Requiring the HAU to be adopted as an 

essential part of the UAA process is 

important to adequately implement both 

CWA sections 101(a)(2) and 

303(c)(2)(A). Where uses specified in 

section 101(a)(2) are unattainable, it is 

important that states and tribes still 

strive to attain uses that continue to 

serve the purposes of the Act and also 

enhance the quality of the water. 

In determining the HAU to adopt in 

place of an unattainable aquatic life, 

wildlife, and/or recreation use, states 

and tribes should use the same 

regulatory factors (at 40 CFR 131.10(g)) 

and data analysis that were used to 

evaluate attainability. When conducting 

this review and soliciting input from the 

public, states and tribes should consider 

not only what is currently attained, but 

also what is attainable in the future after 

achievable gains in water quality are 


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realized. Such a prospective analysis 

may 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. 

Once a state or tribe has determined 

the HAU, there are several different 

approaches it may wish to consider for 

articulating the designated use in the 

relevant water quality standards 

regulations. The EPA’s intent is for a 

state or tribe to have the flexibility to 

choose its preferred approach for 

articulating the HAU in regulation. The 

EPA provides the following example 

approaches, but does not intend states 

and tribes to be limited to only these 

approaches. The EPA invites comments 

on other approaches or examples that 

states and tribes could use when 

articulating the HAU, or examples of 

scenarios where the following 

approaches may not be appropriate. The 

EPA emphasizes that states and tribes 

are not required to develop new use 

categories or subcategories to meet the 

HAU requirement. 

1. Use a refined designated use 

structure that is already adopted into 

state or tribal regulation: Where a state 

or tribe already has a refined designated 

use structure adopted into state 

regulations, they could consider 

adopting the ‘‘next best’’ attainable use 

that already exists in the use structure 

as the HAU. For example, consider a 

state with the following four aquatic life 

uses: exceptional, high, modified, and 

limited aquatic life use—each with 

associated dissolved oxygen criteria that 

protect the use. The state determines 

through a UAA (based on a factor at 

§ 131.10(g)) that a particular stream 

cannot attain the designated ‘‘high 

aquatic life use’’ and associated 

dissolved oxygen criterion due to a low 

head dam and resulting impoundment. 

Because the dam cannot be removed or 

operated in such a way as to attain the 

dissolved oxygen criteria needed to 

protect the expected biological 

community at the site, the state adopts 

the ‘‘modified aquatic life use’’ and 

dissolved oxygen criterion to protect the 

revised use. The UAA documents that 

the ‘‘modified aquatic life use’’ reflects 

the HAU despite the disturbed 

condition of the water body. 

2. Revise the current designated use 

structure to include more refined uses 

and/or sub-categories of uses: Some 

states or authorized tribes may not have 

a refined designated use structure 

adopted into their state or tribal 

regulations, but rather have a general 

use category expressed as a ‘‘general 

aquatic life use,’’ ‘‘fish and wildlife 

use,’’ ‘‘recreation use,’’ and so on. If a 

state or tribe finds that its only option 

upon determining that such a general 

use category is not attainable is to 

remove it altogether, a state or tribe may 

wish to consider revising its current 

designated use framework to include 

more refined uses and/or sub-categories, 

and adopt criteria to protect those uses. 

For example, a state or tribe may be 

able to adequately demonstrate 

(consistent with 40 CFR 131.10(g)(2)) 

that natural conditions or water levels 

preclude the attainment of a use and 

associated water quality criteria. The 

state or tribe may document that it is 

infeasible to attain an aquatic life use 

associated with fish because the water is 

naturally intermittent. However, 

intermittent streams provide essential 

habitat for different types of aquatic life 

(e.g., aquatic invertebrates). Such an 

aquatic life use is likely attainable if not 

already attained. Therefore, in this 

scenario the state or tribe may wish to 

adopt a refined ‘‘intermittent aquatic life 

use’’ and criteria to protect that use in 

its statewide designated use framework 

because such a use category reflects the 

naturally expected aquatic life use for 

intermittent streams that could be 

applied to multiple streams in the state. 

As another example, some states have 

chosen to refine their use categories to 

reflect the various biological 

communities that might be expected in 

a water body. If a state is interested in 

revising its current designated use 

structure, it may wish to define its uses 

based on the composition and structure 

of the aquatic life expected for each use 

with associated biological and dissolved 

oxygen criteria adopted into regulation. 

Incorporating such refinements into 

designated uses allows the state to tailor 

its use designations to reflect the actual 

biological community expected. 

3. Designate a location-specific use 

and adopt criteria to protect that use: A 

state or tribe may determine that a use 

is unattainable for one particular 

parameter (e.g., altered pH due to highly 

mineralized geology, or a combined 

sewer overflow (CSO)-impacted use) or 

suite of parameters in a specific 

location. In such situations, the state or 

tribe may choose to adopt a use that 

more accurately reflects the locationspecific expectations, such as a ‘‘pH 

limited aquatic life use,’’ a ‘‘habitat 

limited aquatic life use,’’ or a ‘‘minerals 

limited aquatic life use.’’ The state or 

tribe would then adopt a new set of 

criteria to protect that use, but could 

adopt all the same criteria levels as were 

protective of the original use, except for 

the parameter or parameters limiting the 

location-specific use. Such an approach 

would not require a state or tribe to add 

the location-specific use in its 

framework, but it could do so if later if 

it finds that other waters will fall into 

the same category. 

The concept of HAU should not to be 

confused with ‘‘site-specific criteria.’’ A 

site-specific criterion is designed to 

protect the current unchanged 

designated use, but the criterion value 

may be different from the statewide or 

otherwise applicable criterion because it 

is tailored to account for site-specific 

conditions that may cause a given 

chemical concentration to have a 

different effect on one site than on 

another. By contrast, the criterion 

supporting a newly established highest 

attainable use is designed to protect the 

revised use associated with a different 

aquatic community expected in the 

water body. 

In addition to this proposal requiring 

states and tribes to adopt the HAU, the 

EPA recommends that states and tribes 

consider the HAU during a triennial 

review. If new information becomes 

available during a triennial review to 

indicate that a use higher than what is 

currently designated is attainable, states 

and tribes should revise their WQS to 

reflect the HAU. As with the HAU 

requirement, states and tribes are not 

required to revise their currently 

established use categories during 

triennial review to allow for more 

refined designation of higher uses, 

though they may wish to consider doing 

so. 

Revisions To Clarify When a UAA Is 

and Is Not Required 

The EPA’s proposal also revises 

§ 131.10(g) to clarify that the factors at 

§ 131.10(g) are only required to be 

considered when § 131.10(j) requires a 

UAA. The current language in 

§ 131.10(g) is ambiguous on this point 

and thus has led to confusion as to 

whether § 131.10(g) applies to all use 

revisions or only those actions 

addressed in § 131.10(j). The EPA’s 1998 

ANPRM stated that the EPA’s position, 

at the time, was that a UAA is not 

limited to actions addressed in 

§ 131.10(j). However, the EPA has 

implemented the CWA to focus on uses 

specified in § 101(a)(2) and now 

believes that the better interpretation of 

its regulations is that the factors in 

131.10(g) are only required to be 

considered when a state or tribe is 

demonstrating that a use specified in 

§ 101(a)(2) or a subcategory of such a 

use is not attainable through a UAA. 


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The EPA’s interpretation is supported 

by § 131.10(j), that explains when a 

UAA is required, and § 131.3(g) that 

defines a UAA as ‘‘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).’’ When 

§§ 131.3(g), 131.10(g) and (j) are read 

together, it is clear that the factors at 

§ 131.10(g) are only required to be 

considered when the state or tribe must 

do a UAA under § 131.10(j). This 

proposal adds language to §§ 131.10(g) 

and 131.10(j) to clarify the relationship 

between these two provisions and the 

intent of these provisions to implement 

CWA sections 101(a)(2) and 

303(c)(2)(A). For all other designated 

uses, this proposal uses the term ‘‘uses 

not specified in section 101(a)(2)’’ to 

refer to uses discussed in section 

303(c)(2)(A) but not included in section 

101(a)(2). Section 303(c)(2)(A) and the 

EPA’s regulation at § 131.10(a) requires 

the state or authorized tribe to take into 

consideration the ‘‘use and value’’ of 

water for public water supplies, 

propagation of fish and wildlife, 

recreational purposes, agricultural, 

industrial and other purposes, and also 

taking into consideration their use and 

value for navigation. The UAA 

demonstration satisfies this requirement 

for uses specified in 101(a)(2). And 

while states and authorized tribes are 

not required by regulation to conduct a 

UAA using factors at § 131.10(g) when 

designating and removing a use not 

specified in 101(a)(2), the EPA 

recognizes that UAAs may provide 

valuable information to a state or 

authorized tribe when deciding how to 

manage their waters and demonstrate 

consideration of a water’s ‘‘use and 

value.’’ 

Finally, the EPA is proposing to 

clarify § 131.10(k) to state when a UAA 

is not required. Specifically, § 131.10(k) 

is revised to articulate that a UAA is not 

required when a state or authorized 

tribe designates or has designated uses 

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

for a water body for the first time, 

removes a designated use that is not 

specified in section 101(a)(2) of the Act, 

or adopts a subcategory that requires 

criteria as stringent as the previously 

applicable criteria. The current structure 

of 131.10(j)(2) and 131.10(k) could 

result in situations where a UAA is not 

required by 131.10(k) but is required by 

131.10(j)(2) thus leading to confusion. 

The EPA intends to eliminate this 

confusion by restructuring 131.10(k) as 

proposed. 

The EPA invites comments on the 

proposed addition of 40 CFR 131.3(m), 

and the proposed amendments to 

§ 131.10(g), § 131.10(j) and § 131.10(k). 

The EPA also invites comment on any 

other options it should consider or on 

the interpretations expressed in this 

section. 

D. Requirements of Triennial Reviews 

1. The EPA Proposal 

The EPA is proposing to amend the 

triennial review requirements of 

paragraph (a) of § 131.20 to clarify that 

a state or tribe shall re-examine its water 

quality criteria during its triennial 

review to determine if any criteria 

should be revised in light of any new or 

updated CWA section 304(a) criteria 

recommendations to assure that 

designated uses continue to be 

protected. 

2. Rationale for Revision 

Sections 303(a) through (c) of the 

CWA require that states and tribes adopt 

WQS applicable to their interstate and 

intrastate waters and that the EPA 

review and approve or disapprove these 

standards based on whether they are 

consistent with the Act. Section 

303(c)(1) further requires states and 

tribes to hold public hearings at least 

once every 3 years for the purpose of 

reviewing applicable WQS and, as 

appropriate, modifying and adopting 

standards. The state or tribe decides 

whether and how to modify or adopt its 

WQS; however, any new or revised 

standards shall be submitted to the EPA 

for review and approval or disapproval. 

The EPA adopted regulations in 1983 

implementing these provisions at 40 

CFR 131.20. This regulation requires 

that states and tribes hold a public 

hearing to review applicable WQS at 

least once every 3 years (i.e., a ‘‘triennial 

review’’) and, as appropriate, modify 

and adopt standards. Public hearings on 

WQS provide an essential opportunity 

for stakeholders and the general public 

to participate in the WQS-setting 

process to provide input and raise 

issues to appropriate officials. In 

addition, the regulation requires states 

and tribes to consider whether any new 

information has become available that 

indicates if uses specified in CWA 

section 101(a)(2) that were previously 

unattainable are now attainable. 40 CFR 

131.20(c) provides that the results of 

these reviews be submitted to the EPA 

(see also § 131.6(f)). 

Stakeholders have expressed concern 

that states and tribes may retain criteria 

in their WQS that are no longer 

protective of designated uses for 

multiple triennial review cycles, despite 

the availability of new or updated EPA 

CWA section 304(a) criteria 

recommendations. While states and 

tribes are not required to use EPA’s 

304(a) criteria recommendations, the 

EPA agrees that it is important for states 

and tribes to consider any new or 

updated 304(a) criteria as part of their 

triennial review, in order to ensure that 

state or tribal water quality criteria 

reflect current science and protect 

applicable designated uses. In this 

regard, 40 CFR 131.20(a) requires that 

any waterbody segment with WQS that 

does not include the uses specified in 

CWA section 101(a)(2) be re-examined 

and updated if new information 

becomes available to indicate that 

previously unattainable CWA section 

101(a)(2) uses are now attainable. 

However, because 40 CFR 131.20(a) 

does not include a parallel statement 

regarding criteria that support these 

uses, states and tribes may not reevaluate their existing criteria to ensure 

that the criteria continue to be 

protective of the designated uses when 

new or updated 304(a) criteria 

recommendations become available. As 

a result, the EPA is proposing to include 

an explicit reference to 304(a) 

recommended criteria at 131.20(a), to 

ensure that new or updated 304(a) 

criteria are considered during triennial 

review. 

The EPA invites comments on the 

proposed amendments to paragraph (a) 

of § 131.20. The EPA also invites 

comment on any other options it should 

consider or on the interpretations 

expressed in this section. 

E. Antidegradation Implementation 

The EPA is proposing to amend 

several provisions of § 131.12 related to 

implementing the antidegradation 

requirements. These include (1) 

clarifying the options available to states 

and tribes when identifying Tier 2 high 

quality waters, (2) clarifying that states 

and tribes must conduct an alternatives 

analysis in order to support state and 

tribal decision-making on whether to 

authorize limited degradation of high 

quality water, and (3) specifying that 

states and tribes must develop and make 

available to the public implementation 

methods for their antidegradation 

policies. The EPA is also proposing to 

add language to § 131.5(a) describing the 

EPA’s authority to review and approve 

or disapprove state-adopted or tribaladopted antidegradation policies. The 

language at § 131.5(a) will further 

specify that if a state or tribe has chosen 

to formally adopt implementation 

methods as water quality standards, the 

EPA would review whether those 

implementation methods are consistent 

with 131.12. 


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54526 Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / Proposed Rules 

13PUD No. 1 of Jefferson County v. Washington 

Department of Ecology, 511 U.S. 700, 705 (1994) 

(‘‘A 1987 amendment to the Clean Water Act makes 

clear that section 303 also contains an 

‘antidegradation policy . . .’ ’’). 

14Native Village of Point Hope v. U.S. Envtl. Prot. 

Agency, No. 3:11–cv–00200–TMB, slip op. at 24–25 

(D. Alaska Sept. 14, 2012). 

Background 

Section 101(a) of the CWA 

emphasizes the prevention of water 

pollution and expressly includes the 

objective ‘‘to restore and maintain the 

chemical, physical and biological 

integrity of the Nation’s waters (33 

U.S.C. 1251) (emphasis added). The 

antidegradation requirements that the 

EPA incorporated by regulation in 1983 

into 40 CFR 131.12 implement the 

maintenance aspect of CWA section 

101(a) and are an essential component 

of the overall WQS program. Although 

designated uses and criteria are the 

primary tools states and tribes use to 

achieve the CWA 101(a) goals, 

antidegradation complements these by 

providing a framework for maintaining 

existing uses, for protecting waters that 

are either attaining or are of a higher 

quality than necessary to support the 

CWA 101(a)(2) goals, and for protecting 

state/tribal identified Outstanding 

National Resource Waters (ONRWs). 

Antidegradation plays a critical role in 

allowing states and tribes to maintain 

and protect the valuable resource of 

high quality water by ensuring that 

decisions to allow a lowering of high 

quality water are made in a transparent 

public manner and are based on a sound 

technical record. 

In the Water Quality Act of 1987, 

Congress expressly affirmed the 

principle of antidegradation that is 

reflected in section 101 of the Act. In 

those amendments to the CWA, 

Congress incorporated a reference to 

antidegradation policies in section 

303(d)(4)(B) of the Act (33 U.S.C. 

1313(d)(4)(B)): ‘‘Standard Attained—For 

waters identified under paragraph (1)(A) 

where the quality of such waters equals 

or exceeds levels necessary to protect 

the designated use for such waters or 

otherwise required by applicable WQS, 

any effluent limitation based on a total 

maximum daily load or other waste load 

allocation established under this 

section, or any WQS established under 

this section, or any permitting standard 

may be revised only if such revision is 

subject to and consistent with the 

antidegradation policy established 

under this section’’ (emphasis added). 

This provision not only confirms that an 

antidegradation policy is an integral 

part of the CWA, but also explains the 

relationship of the antidegradation 

policy to other CWA regulatory 

programs.13 Antidegradation reviews 

are applicable to revisions to effluent 

limitations based on a TMDL, wasteload 

allocation, or water quality standard, 

but they are not required for revisions 

to a TMDL, wasteload allocation, or 

water quality standard.14

High quality waters provide support 

for aquatic life and recreation and 

support unique and significant ecologies 

and species habitat. These attributes 

confer a special degree of resiliency and 

resistance to adverse effects, particularly 

as the nation’s waters face an increasing 

degree of stress from anthropogenic 

influences. Therefore, maintenance and 

protection of high quality waters has 

never been more important. 

Protection of waters that meet or 

exceed levels necessary to support the 

CWA uses is central to supporting both 

economic and community growth and 

sustainability. Such waters contribute to 

our public health, aquatic ecosystems, 

drinking water supplies, and to the 

welfare of families and communities. 

The health and growth of tourism, 

recreation, fishing, and businesses and 

the jobs they create rely on a sustainable 

source of clean water. Degradation of 

water quality may result in increasing 

public health risks, declining aquatic 

communities and ecological diversity, 

and increasing treatment costs that must 

be borne by ratepayers and local 

governments. Maintenance of waters 

that exceed levels necessary to support 

the CWA uses can sometimes save time 

and economic resources for a 

community in the long-term. Using an 

antidegradation program to prevent the 

degradation of a water body may be 

more cost-effective and efficient than 

long-term restoration efforts. In 

addition, maintaining a water body in 

its initial high quality condition helps 

ensure the preservation of unique 

attributes that may ultimately be 

impossible to fully restore in a number 

of situations. 

Currently, 40 CFR 131.12 requires 

states and tribes to adopt an 

antidegradation policy and identify 

implementation methods for that policy. 

The state’s or tribe’s policy must 

provide protection for all existing uses, 

hereafter referred to as ‘‘Tier 1’’ 

protection (40 CFR 131.12(a)(1)). The 

policy must also require the 

maintenance and protection of high 

quality (‘‘Tier 2’’) waters unless the state 

or authorized tribe finds that ‘‘allowing 

lower water quality is necessary’’ to 

accommodate ‘‘important economic or 

social development in the area in which 

the waters are located,’’ a process 

hereby referred to as ‘‘Tier 2 review’’ (40 

CFR 131.12(a)(2)). Additionally, the 

policy must provide for the 

maintenance and protection of water 

quality in ONRWs, identified by the 

state or tribe, hereinafter referred to as 

‘‘Tier 3’’ waters (40 CFR 131.12(a)(3)). 

This proposal focuses on different 

aspects of state and tribal 

implementation methods to ensure 

effective and transparent 

implementation of Tier 2 high quality 

water antidegradation protection 

provisions. 

In this regard, the EPA indicated in its 

1998 ANPRM that ‘‘on a national scale, 

antidegradation is not being used as 

effectively as it could be,’’ a concern 

that continues today and is echoed by 

stakeholders who have identified 

antidegradation as an underused 

component of water quality protection. 

Although the federal antidegradation 

regulation is intended to help states and 

tribes protect and maintain high quality 

waters, the number of waters that are 

identified as impaired continues to 

grow. The benefits of high quality 

waters may be jeopardized if states and 

tribes do not consider the long-term 

consequences of lowering water quality 

or evaluate the alternatives that might 

be available to reduce the need to 

accommodate increased pollution. 

While the EPA has issued guidance in 

the past to help facilitate state and tribal 

implementation of the regulatory 

antidegradation provisions, the EPA 

received substantial feedback from 

stakeholders that existing CWA 

antidegradation regulatory provisions 

and related guidance have not been 

fully successful in ensuring consistent 

and effective implementation of Tier 2 

high quality water protections. 

Moreover, states have recognized the 

limits of national guidance in the area 

of CWA implementation. Most recently 

on March 30, 2011, the Environmental 

Council of the States published a 

resolution entitled ‘‘Objection to U.S. 

Environmental Protection Agency’s 

Imposition of Interim Guidance, Interim 

Rules, Draft Policy and Reinterpretation 

Policy’’ in which it states that the ‘‘EPA 

should minimize the use of interim 

guidance, interim rules, draft policy and 

reinterpretation policy and eliminate 

the practice of directing its regional or 

national program managers to require 

compliance by states with the same in 

the implementation of delegated 

programs.’’ For these and the other 

reasons discussed above, the EPA is, 

therefore, revising its regulation to 

update the requirements for transparent 

and effective state and tribal 

antidegradation implementation. 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
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1. The EPA Proposal—Part 1: 

Identification of High Quality Waters 

The EPA is proposing to add 

paragraph (b)(1) to § 131.12 to provide 

that high quality waters may be 

identified on a parameter-by-parameter 

basis or on a water body-by-water body 

basis, as long as the state or tribal 

implementation methods ensure that 

waters are not excluded from Tier 2 

protection solely because not all of the 

uses specified in CWA section 101(a)(2) 

are attained. The EPA’s established view 

is that either method of identifying high 

quality waters is acceptable, but is 

proposing today to codify that flexibility 

for states and tribes into regulation. By 

‘‘the uses specified in CWA section 

101(a)(2)’’ the EPA means the uses and 

functions encompassed within the CWA 

section 101(a)(2), such as aquatic life 

support, wildlife support, consumption 

of aquatic life, and recreation. 

The nationally applicable water 

quality standards regulation at § 131.12 

describes high quality waters as those 

where the quality of the waters exceed 

levels necessary to support the 

propagation of fish, shellfish, and 

wildlife and recreation in and on the 

water (i.e., the CWA goals articulated in 

section 101(a)(2)). States typically use 

one of two approaches to identify high 

quality waters. While the EPA specified 

in the ‘‘Water Quality Guidance for the 

Great Lakes System’’ that high quality 

waters subject to 40 CFR part 132 must 

be identified using a parameter-byparameter approach, the WQS 

regulation applicable to all states and 

tribes (at 40 CFR part 131) does not 

currently specify how a state or tribe 

must identify its high quality waters for 

purposes of the antidegradation 

requirements. States and tribes using a 

parameter-by-parameter approach 

identify which waters are of high 

quality for purposes of a Tier 2 review 

at the time the activity that would lower 

water quality is proposed. Under this 

approach, when an activity is proposed 

that would potentially lower water 

quality in any high quality water, the 

state or tribe would determine for which 

parameters the water quality is better 

than applicable criteria developed to 

support the CWA 101(a)(2) uses. Each 

parameter for which water quality 

would be lowered by the permitted 

activity is considered independently 

and, once a parameter is determined to 

exist at a level that is better than 

applicable criteria, the state or tribe 

would conduct a Tier 2 review for that 

parameter. In contrast, states and tribes 

using a water body-by-water body 

approach typically identify high quality 

waters in advance on a list by weighing 

a variety of factors to classify a water 

body’s overall quality. If an activity is 

proposed that would potentially lower 

water quality, the state would first 

determine if that water body is on its 

Tier 2 list, and thus eligible for Tier 2 

review. 

The EPA has found, however, that it 

is currently possible for high quality 

waters to be identified on a water bodyby-water body basis in a manner that the 

EPA believes may be contrary to the 

intent of the antidegradation provisions. 

In some cases, states or tribes have 

implemented antidegradation such that, 

where a water body is listed on the 

CWA section 303(d) list based on one or 

more parameters affecting only one of 

the CWA 101(a)(2) uses, the state or 

tribe automatically considers the water 

no longer high quality. As a result, the 

state or tribe would no longer conduct 

Tier 2 reviews before allowing a 

lowering of water quality for any 

parameter. However, individual Section 

303(d) listings can be a potentially poor 

indicator of the overall quality of a 

surface water because, although one or 

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

is listed as impaired, one or more other 

uses specified in 101(a)(2) might still be 

attained and the water quality may be 

higher than necessary to support such 

use(s). Such a means of identifying high 

quality waters would categorically deny 

Tier 2 protection to a water body that is 

still of high quality with respect to other 

uses specified in CWA 101(a)(2). 

If a water body can be excluded from 

Tier 2 protection solely because one of 

the uses specified in 101(a)(2) is not 

being attained, without a holistic 

evaluation of the water body, it is 

possible that a large number of state and 

tribal waters would never be subject to 

Tier 2 review for any parameter. Yet 

those waters may in fact be high quality 

waters relative to other unimpaired 

uses. Thus, such water bodies could be 

degraded further without a public 

participation process. For example, 

mercury is widely prevalent in U.S. 

waters and is known to bioaccumulate 

in fish tissue, thus affecting the water 

body’s ability to support protection and 

propagation of aquatic life. A recent 

statistically based EPA sampling survey 

found predator species fish tissue in 49 

percent of the sampled population of 

lakes in the conterminous United States 

with surface areas greater than or equal 

to 1 hectare exceeded the EPA’s 

recommended 0.3 ppm tissue-based 

mercury criterion (‘‘National Study of 

Chemical Residues in Lake Fish 

Tissue,’’ EPA 823–R–09–006). If all 

states and tribes used an approach for 

identifying high quality water whereby 

any impairment rendered the water 

body ineligible for Tier 2 protection, 

almost half of the lakes would 

automatically be excluded from Tier 2 

high quality water protection. The 

EPA’s view is that this approach would 

not be consistent with the objectives of 

the CWA and the intent of the 

antidegradation regulation. 

The EPA recognizes that there may be 

multiple ways for a state or tribe to 

develop a water body-based approach 

for identifying high quality waters 

consistent with the goals of the CWA 

and the antidegradation regulation. The 

EPA understands that in some cases, 

§ 131.12(a)(2) has been interpreted to 

mean that if any one of the uses 

reflecting CWA 101(a)(2) goals is not 

supported, that the water body as a 

whole cannot be considered high 

quality. The regulatory language, 

however, is derived from the language 

in CWA 101(a)(2) that specifies it is a 

national goal to achieve water quality 

that provides for ‘‘the protection and 

propagation of fish, shellfish, and 

wildlife and provides for recreation in 

and on the water.’’ The intent of this 

CWA statement is to strive towards all 

of the uses specified in the provision 

and not to stop striving towards all of 

the uses simply because one of them is 

not being achieved. The EPA’s proposal 

and interpretation of 40 CFR 

131.12(a)(2) is consistent with the intent 

of the CWA. 

Rather than excluding a water body 

from Tier 2 protection solely because 

not all of the uses specified in CWA 

section 101(a)(2) are attained, the EPA 

would expect the state or tribe to 

consider a combination of chemical, 

biological, and physical characteristics 

in identifying high quality waters. In 

other words, the EPA would expect the 

state or tribe to use all the relevant 

available data to conduct an overall 

holistic assessment of these 

characteristics in order to determine 

whether a water body would receive 

Tier 2 protection. Some of the factors a 

state or tribe may consider include, but 

are not limited to, existing aquatic life 

uses including aquatic assemblages, 

habitat, hydrology, geomorphic 

processes, and landscape condition; 

existing recreational uses and 

recreational significance; and the overall 

value and significance of the water body 

from an ecological and public-use 

perspective. Numerous tools, such as 

biological, habitat, hydrologic, 

geomorphic, and landscape assessments 

or the environmental impact statement 

rating system, could be useful to states 

and tribes in making and supporting 

these judgments. 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
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15See ‘‘EPA Region VIII Guidance: 

Antidegradation Implementation; Requirements, 

Options, and EPA Recommendations Pertaining to 

State/Tribal Antidegradation Programs,’’ August, 

1883, page 14, http://water.epa.gov/scitech/ 

swguidance/standards/adeg/upload/ 

Region8_ch2_pg5-20.pdf. 

16See ‘‘Proposed Water Quality Standards for 

Kentucky,’’ November 2002, page 68977, http:// 

www.epa.gov/fedrgstr/EPA-WATER/2002/ 

November/Day-14/w28922.htm. 

For purposes of better understanding 

this proposal, consider the following 

examples. 

• Water Body A has aquatic life and 

recreational designated uses and is 

listed as impaired for methylmercury 

and bacteria, pursuant to CWA section 

303(d). Under this proposed rule, a state 

or tribe using a water body-by-water 

body approach could exclude Water 

Body A from its Tier 2 list because the 

state or tribe could show that high levels 

of methylmercury prevent the 

attainment of protection and 

propagation of fish, shellfish and 

wildlife, and that high levels of bacteria 

prevent attainment of recreation in and 

on the water. 

• Water Body B has aquatic life and 

recreational designated uses and is 

listed pursuant to CWA section 303(d) 

as impaired for methylmercury, but not 

for bacteria or any other pollutant 

necessary to protect recreation. Under a 

water body-by-water body approach, the 

proposed rule would prohibit the state 

or tribe from excluding Water Body B 

from its Tier 2 list solely because the 

water body cannot attain protection and 

propagation of aquatic life due to 

methylmercury. Water Body B is still 

attaining recreation in and on the water 

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

Act. 

The EPA invites comments on the 

proposed addition of paragraph (b)(1) to 

§ 131.12. Additionally, the EPA is 

considering whether to specify how a 

state or tribe determines for which 

parameters Tier 2 review must be 

conducted depending on the approach 

used to identify high quality waters. The 

EPA requests comment on whether, 

once a high quality water is identified, 

the Tier 2 review process for that water 

body should differ depending on the 

approach used to identify it as high 

quality. As the EPA has explained 

before in the ANPRM and in the ‘‘Water 

Quality Guidance for the Great Lakes 

System’’ (40 CFR part 132), for high 

quality waters identified through the 

parameter-by-parameter approach, states 

and tribes conduct Tier 2 reviews for all 

parameters for which the water quality 

has been identified as better than the 

applicable criteria developed to support 

the CWA 101(a)(2) uses. Each parameter 

for which water quality would be 

lowered by the permitted activity is 

considered independently and, once a 

parameter is determined to exist at a 

level that is better than applicable 

criteria developed to support the CWA 

101(a)(2) uses, the state or tribe would 

conduct a Tier 2 review for that 

parameter. 

The EPA has made a variety of 

different statements about how Tier 2 

reviews are conducted once the water 

body is identified as Tier 2 using a 

water body-by-water body approach.15 16

Thus, for the water body-by-water body 

approach the EPA could specify that 

Tier 2 reviews must be conducted for all 

parameters for which the water quality 

has been identified as better than the 

applicable criteria developed to support 

the CWA 101(a)(2) uses. 

Alternatively, the EPA could specify 

that for waters identified as high quality 

on a water body-by-water body basis, 

Tier 2 reviews are only required for 

parameters associated with the 101(a)(2) 

uses currently being supported. For 

example, in Water Body B above, a Tier 

2 review would only be required for 

each parameter that is better than the 

applicable criteria to protect recreation. 

And, a Tier 2 review would not be 

required for any parameter only 

associated with the aquatic life use (i.e., 

and not also associated with the 

recreation use). 

The EPA could also specify that states 

and tribes have discretion on how to 

conduct the Tier 2 reviews. The EPA 

also invites comments on any other 

options it should consider or on the 

interpretations expressed in this section. 

2. The EPA Proposal—Part 2: 

Alternatives Analysis 

The EPA is proposing to add 

paragraph (b)(2) to 40 CFR 131.12 to 

ensure that states and tribes will only 

make a finding that lowering water 

quality is necessary, as required in 

§ 131.12(a)(2), after conducting an 

alternatives analysis that evaluates a 

range of non-degrading and minimally 

degrading practicable alternatives that 

have the potential to prevent or 

minimize the degradation associated 

with the proposed activity. This 

proposal also provides that if a state or 

tribe can identify any practicable 

alternatives, the state or tribe must 

choose one of those alternatives to 

implement when authorizing a lowering 

of high water quality. 

Section 131.12(a)(2) also provides that 

high quality water shall be maintained 

and protected unless the state or tribe 

finds (after satisfaction of public 

participation and intergovernmental 

coordination requirements) that 

‘‘allowing lower water quality is 

necessary to accommodate important 

economic or social development in the 

area in which the waters are located’’ 

(40 CFR 131.12(a)(2)). As discussed 

previously, this process is called a Tier 

2 review. Tier 2 review calls for the state 

or tribe to investigate two questions: (1) 

Whether allowing lower water quality is 

necessary to accomplish the proposed 

activity, typically by examining 

alternative ways of accomplishing the 

activity through an alternatives analysis; 

and (2) whether the proposed activity 

that will result in lower water quality 

will accommodate important economic 

or social development, through a socioeconomic analysis. States and tribes 

may determine the order in which to 

complete the two aspects of the finding. 

In addition, states have discretion to 

decide there is no need to answer the 

second question if the answer to the first 

question is ‘‘no.’’ For example, a state or 

tribe may choose to first ask whether 

lowering of water quality is necessary to 

accomplish the proposed activity, and if 

the answer is ‘‘no,’’ decide at that point 

not to investigate whether the proposed 

activity will accommodate important 

economic or social development. While 

this finding is a state or tribal 

responsibility, the EPA recognizes that 

states and tribes may establish processes 

requiring the entity responsible for 

conducting the proposed activity to 

provide information or conduct the 

necessary evaluations. 

Although the existing regulation 

implies that the state or tribe must have 

a means of evaluating whether a 

lowering of water quality is necessary to 

accomplish the proposed activity, 

currently there is no explicit 

requirement to conduct an alternatives 

analysis. Even if a state or tribe 

conducts an alternatives analysis, the 

regulation does not specify that, where 

there is a practicable alternative, the 

state or tribe must select an alternative 

for implementation. For these purposes, 

the term ‘‘practicable’’ means that the 

alternatives considered must be 

available for the proposed activity, 

technologically possible, able to be done 

or put into practice successfully at the 

site in question, and economically 

viable. This lack of specificity can result 

in situations where a state or tribe does 

not evaluate less-degrading or nondegrading alternatives to the proposed 

activity, and thus lacks a reasoned basis 

for determining if the proposed 

lowering of water quality is necessary to 

accomplish the proposed activity, or 

not. The EPA’s view is that this lack of 

specificity can lead to state or tribal 

decisions to lower water quality without 

appropriately making a finding that a 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / Proposed Rules 54529 

17As of 2013, the EPA is aware of 25 states that 

have adopted antidegradation implementation 

methods entirely into rule. 

lowering is necessary, contrary to 

section 131.12(a)(2). 

This issue was considered carefully as 

part of the development of updated 

water quality requirements for the Great 

Lakes states in 1995. The regulation at 

40 CFR part 132, Appendix E, addresses 

it by requiring that any entity seeking to 

degrade high water quality must submit 

an antidegradation demonstration for 

consideration by the state. This 

demonstration includes an analysis 

identifying any cost-effective pollution 

prevention alternatives and techniques, 

as well as an analysis identifying 

alternative or enhanced treatment 

techniques (and their relative costs) that 

are available to the entity and that 

would eliminate or significantly reduce 

the extent to which the increased 

loading results in a lowering of water 

quality. States and tribes should tailor 

the level of detail and documentation in 

antidegradation reviews to the specific 

circumstances encountered. The state or 

tribe then uses that information to 

determine whether or not the lowering 

of water quality is necessary. 

Under the approach proposed today, 

the state or tribe would conduct its 

alternatives analysis by considering a 

range of non-degrading and minimally 

degrading practicable alternatives to the 

proposed activity. Similar to the 

alternatives analysis provided for in 40 

CFR part 132, this evaluation would 

include a consideration of any nondegrading or minimally degrading costeffective pollution prevention 

alternatives and enhanced treatment 

techniques, but would not be limited to 

those. For example, alternatives could 

include no discharge, pollution 

prevention measures, process changes, 

reduction in the scale of the project, 

advanced or different treatment 

technologies, water recycling and reuse, 

land application, seasonal or controlled 

discharge options avoiding critical 

water quality periods, and alternative 

discharge locations, if such measures 

were practicable. 

Once the state or tribe has identified 

a range of practicable alternatives, the 

state or tribe would evaluate the 

alternatives in terms of the extent of 

degradation that would result. By 

initially considering practicable 

alternatives that represent a range from 

non-degrading to minimally degrading 

as opposed to simply identifying the 

single least degrading alternative, the 

state or tribe then has a basis to make 

the required finding, considering the 

implications and technological and 

economic practicability of the 

alternatives more holistically, and 

considering any impacts beyond the 

direct effects on water quality, such as 

cross-media impacts (e.g., impacts on 

land due to land application of 

pollutants found in water). This will 

allow the state or tribe to determine 

whether the lowering of water quality is 

necessary to accommodate important 

economic or social development per 

Part 131.12(a)(2). As reflected in the 

Great Lakes System regulation at Part 

132, the EPA believes states and tribes 

should tailor the level of detail and 

documentation of alternatives analyses 

in antidegradation reviews to the 

significance and magnitude of the 

particular circumstances encountered. 

The EPA invites comment on the 

proposed addition of paragraph (b)(2) to 

§ 131.12. The EPA also invites comment 

on any other options it should consider 

or on the interpretations expressed in 

this section. 

3. The EPA Proposal—Part 3: 

Developing and Making Available to the 

Public Antidegradation Implementation 

Methods 

The EPA is proposing to add 

paragraph (b) to 40 CFR 131.12 to 

specify that states and tribes must 

develop and make available to the 

public antidegradation implementation 

methods to improve program 

implementation, ensure consistency 

with the CWA, and provide 

transparency as to applicable state and 

tribal antidegradation review 

requirements. The EPA is also making 

changes to language in § 131.5(a) 

describing the EPA’s authority to review 

and approve or disapprove stateadopted or tribal-adopted 

antidegradation policies. The language 

in § 131.5(a) further specifies that if a 

state or tribe has chosen to formally 

adopt implementation methods as water 

quality standards, the EPA would 

review whether those implementation 

methods are consistent with § 131.12. In 

addition to the proposed requirements 

included in this proposal, the EPA is 

considering and requesting comment on 

whether the EPA should include a 

requirement that antidegradation 

implementation methods be adopted as 

WQS and thus subject to the EPA’s 

review and approval or disapproval. 

Alternatively, the EPA is considering 

and requesting comment on whether the 

EPA should specify that states and 

tribes may, but are not required to, 

adopt antidegradation implementation 

methods as WQS. 

Currently there is confusion whether 

the existing regulations require states 

and tribes to adopt antidegradation 

implementation methods as WQS. 

Stakeholders have raised concerns that 

some states and tribes have not 

developed or made publically available 

antidegradation implementation 

methods, despite the fact that the 

regulation requiring this was established 

in 1983. Specifically, they are 

concerned that the absence of such 

methods reduces transparency in the 

implementation of states’ and tribes’ 

policies, and potentially limits the 

ability to ensure protection of existing 

uses, high quality waters, and ONRWs 

to the full extent required by the 

regulation. The CWA at section 101(e) 

specifically states 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. . . .’’ The 

EPA encourages states and tribes to 

provide a robust and transparent 

process for developing and making 

available to the public their 

antidegradation implementation 

methods and for implementing those 

methods in specific cases. 

Section 501(a) of the CWA (33 U.S.C. 

1361(a)) authorizes the EPA 

Administrator to ‘‘prescribe such 

regulations as are necessary to carry out 

[her] functions under this Act.’’ The 

CWA, under section 303(c), also 

specifies that the EPA Administrator 

must review and approve new or 

revised WQS after determining they are 

consistent with applicable requirements 

under the CWA. The EPA believes that 

antidegradation implementation 

methods are an important component of 

implementing antidegradation policies. 

Thus, the EPA is considering and 

requesting comment on whether the 

EPA should include a requirement that 

implementation methods be formally 

adopted as WQS and thus subject to the 

EPA’s review and approval or 

disapproval. Formal adoption of 

implementation methods as WQS, along 

with EPA review under section 303(c) of 

the Act, would help ensure the 

consistent and effective implementation 

of the state or tribe’s antidegradation 

provisions so that waters will be 

maintained and protected in accordance 

with the objectives of the Act.17 At the 

same time, the EPA acknowledges the 

primary role of states and tribes in 

establishing and implementing water 

quality standards. The EPA is thus 

alternatively considering and requesting 

comment on whether to specify in rule 

that states and tribes may, but are not 

required to, adopt antidegradation 

implementation methods as WQS 

subject to EPA approval. In this case, 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
54530 Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / Proposed Rules 

states and tribes must develop 

antidegradation implementation 

methods, and must make them available 

to the public, but they would not be 

subject to EPA review and approval or 

disapproval unless the state or tribe 

chose to formally adopt them as WQS. 

Additionally, antidegradation is an 

essential part of WQS and state and 

tribal approaches to implementing 

antidegradation requirements may have 

direct implications for NPDES permits, 

as well as other federal permits and 

licenses for activities that affect water 

quality. The EPA believes that this may 

be an additional reason why the 

regulations should require states and 

tribes to formally adopt, after providing 

an opportunity for public involvement, 

and obtain EPA approval for 

antidegradation implementation 

methods. Lastly, state and tribal 

antidegradation programs that have 

antidegradation implementation 

methods adopted into regulations are 

more transparent to stakeholders and 

the public, as well as provide greater 

clarity to regulated industry. 

The ‘‘Water Quality Guidance for the 

Great Lakes System’’ (40 CFR part 132) 

provides that an acceptable 

antidegradation policy and 

implementation methods are required 

elements of a state’s or tribe’s WQS 

program for waters of the Great Lakes 

system. That regulation requires that 

Great Lakes states and tribes adopt 

provisions into their policy and 

implementation methods that are 

consistent with a list of specifications, 

including details on how high quality 

waters are to be identified and on the 

components of antidegradation Tier 2 

reviews. 

Consistent with this ‘‘Water Quality 

Guidance for the Great Lakes System’’ 

requirement and for the reasons 

explained, the EPA is considering and 

seeking comments on a revision to the 

antidegradation regulation at 40 CFR 

131.12 that would require states and 

tribes to adopt antidegradation 

implementation methods in order to 

improve program implementation, 

ensure consistency with CWA, and 

provide transparency as to applicable 

state or tribal antidegradation review 

requirements. If the EPA were to finalize 

such a requirement, the EPA would 

expect that a state or tribe’s adopted 

implementation methods would 

describe how the state or tribe intended 

to implement each aspect of its policy, 

consistent with § 131.12(a), as well as 

how antidegradation decisions would be 

documented. This would provide 

sufficient information so that the public 

and the EPA would understand the 

extent to which activities affecting water 

quality are being authorized consistent 

with the state’s or tribe’s 

antidegradation policy and other CWA 

requirements. 

The EPA invites comments on the 

proposed addition of paragraph (b) to 

§ 131.12. As previously mentioned, 

there is confusion whether the existing 

regulations require states and tribes to 

adopt antidegradation implementation 

methods as WQS. The EPA requests 

comment on whether the EPA should 

require, as part of Section 131.12(b), that 

implementation methods be adopted as 

WQS and thus subject to the EPA’s 

review and approval or disapproval. If 

the EPA makes adoption of 

implementation methods a requirement, 

the EPA is also considering 

corresponding revisions to sections 

131.5(a) and 131.6(d). Specifically, the 

EPA requests comment on whether a 

corresponding revision should be made 

to section 131.6(d) to clarify that 

implementation methods are one of the 

minimum requirements for a water 

quality standards submission. 

Alternatively, the EPA is requesting 

comment on whether the EPA should 

explicitly specify in regulation that 

states and tribes are not required to 

adopt antidegradation implementation 

method as WQS. Finally, the EPA 

invites comments on any other options 

it should consider or on the 

interpretations expressed in this section. 

4. Minimum Elements of an 

Antidegradation Implementation 

Method 

The EPA’s basis for taking approval or 

disapproval action on a state’s or a 

tribe’s antidegradation policy is whether 

the policy is consistent with the CWA 

and the water quality standards 

regulations at 40 CFR § 131.12. While 

the current regulations do not require 

states or tribes to adopt antidegradation 

implementation methods as water 

quality standards, if a state or tribe 

chooses to do so, the EPA would review 

a state’s or tribe’s implementation 

methods on the basis of ensuring that 

the methods do not undermine the 

state’s or tribe’s own antidegradation 

policy. This proposed revised 

antidegradation regulation continues to 

provide for a wide range of state and 

tribal approaches to antidegradation. 

States and tribes have considerable 

discretion in how they address each of 

the elements of antidegradation 

implementation specified in the 

regulation. To facilitate development of 

implementation methods, the EPA is 

providing in this preamble a list of the 

areas states’ and tribes’ implementation 

methods would need to address, at a 

minimum, to be consistent with the 

WQS regulation. This list is based on 

requirements currently found in the 

federal antidegradation regulation, as 

well as proposed requirements found in 

this action. Again, how states and tribes 

address each of these areas in their 

methods is within their discretion, as 

long as it does not undermine their 

antidegradation policy or is otherwise 

inconsistent with the Act or EPA’s 

regulations. 

a. Scope and applicability: the state or 

tribe should describe the scope and 

applicability of their antidegradation 

policy. 

b. Existing uses protection: the state 

or tribe will ensure the maintenance and 

protection of all existing uses and the 

water quality necessary to protect the 

existing uses. 

c. High quality water protection 

i. Identification of high quality water: 

the state or tribe will identify high 

quality waters on a parameter-byparameter basis or a water body-bywater body basis, as long as the state’s 

or tribe’s implementation methods 

ensure that waters are not excluded 

from Tier 2 protection solely because 

not all of the uses specified in CWA 

section 101(a)(2) are attained. 

ii. Alternatives analysis and social/

economic analysis: the state or tribe will 

determine whether the lowering of 

water quality that would result from a 

proposed activity is necessary to 

accommodate important economic or 

social development in the area in which 

the waters are located through an 

alternatives analysis and a social and/or 

economic analysis. 

iii. Public participation and 

intergovernmental coordination: the 

state or tribe will ensure full satisfaction 

of the public participation and 

intergovernmental coordination 

provisions of the state’s or tribe’s 

continuing planning process in any 

finding that will allow lower water 

quality. 

iv. Requirements for point and 

nonpoint sources: the state or tribe will 

ensure 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 when 

allowing a lowering of water quality. 

d. ONRW protection: the state or tribe 

will ensure the maintenance and 

protection of water quality for waters 

identified as ONRWs. 

e. Thermal Discharges: The state or 

tribe will ensure consistency with 

Section 316 of the Act in cases that 

involve potential water quality 

impairment associated with thermal 

discharges. 


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18The EPA distinguishes WQS variances, as 

described in today’s proposed rulemaking, from 

variances as described in the EPA’s permitting 

regulation at §§ 122.2 and 125.3. 

19The EPA’s memoranda discussing variances are 

available on the EPA’s Web site at http://

water.epa.gov/scitech/swguidance/waterquality/

standards/handbook/chapter05.cfm#section3. 

20 ‘‘Permanent’’ is used here and throughout this 

section to contrast between the time-limited nature 

of variances and designated use changes in 

accordance with 40 CFR 131.10 that require a 

revision to a State’s water quality standards to 

reverse. 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 State shall revise its standards 

accordingly.’’ 

21 Variances in Water Quality Standards, March 

15, 1985, Memo from Edwin L. Johnson, Director 

of the Office of Water Regulations and Standards, 

to the Regional Water Division Directors and the 

Advanced Notice of Proposed Rulemaking at 63 FR 

36759. 

22The EPA addressed variances in its Kansas and 

Puerto Rico promulgations and part 132 Great Lakes 

Water Quality Guidance regulations (Published 

March 23, 1995, http://www.ecfr.gov/cgi-bin/textidx?c=ecfr&SID=105020ee867fe139a8d0965b23bf

7557&rgn=div5&view=text&node=40:23.0.1.1.19&

idno=40). 

23The EPA’s WQS Handbook, 1994: http://water.

epa.gov/scitech/swguidance/standards/handbook/

chapter05.cfm#section3 

5. How does this proposal affect states 

or authorized Tribes for which the EPA 

has promulgated antidegradation 

implementation methods? 

The revised WQS regulation will 

apply to all states, authorized tribes, and 

territories, regardless of whether or not 

the EPA has previously promulgated an 

antidegradation policy or 

implementation methods for the state or 

tribe. Therefore, any previously 

promulgated antidegradation policies or 

implementation methods may require 

revision to meet the new requirements 

of Section 131.12. 

F. WQS Variances 

1. Background 

The EPA has encouraged states and 

tribes to utilize WQS variances 18

(hereafter referred to as ‘‘variances’’), 

where appropriate, as an important 

WQS tool that provides states and tribes 

time to make progress towards attaining 

a designated use and criteria. The EPA 

has offered input and support for 

variances through Office of General 

Counsel legal decisions,19 guidance, 

memoranda, and approval actions for 

many years. These documents 

specifically explain the EPA’s 

interpretation that variances may be 

granted if the state or authorized tribe 

demonstrates that the variance meets 

the same requirements as a permanent 20

designated use change, even though the 

WQS regulation lacks explicit 

provisions on the issue. As a result, the 

EPA has heard from states, tribes, and 

stakeholders that there is confusion, 

inconsistency, and mixed 

interpretations about how, when, and 

where variances may be used 

appropriately (e.g., with regard to 

nutrients and implementation of 

numeric nutrient criteria). In particular, 

the EPA has found that this WQS tool 

is underutilized. For example, since 

tracking WQS variance submittals in 

2004, four EPA Regions have never 

received a WQS variance submittal. 

However, the EPA has found that where 

states and tribes and their stakeholders 

have more specificity in regulation 

regarding variances, such as those states 

and tribes covered by the ‘‘Water 

Quality Guidance for the Great Lakes 

System’’ (i.e., Great Lakes Initiative) 

rulemaking at 40 CFR part 132, they are 

successfully adopting and submitting 

WQS variances. This proposed rule is 

intended to provide this specificity 

nationally. 

The CWA specifies a national goal at 

Section 101(a) to restore and maintain 

the chemical, physical and biological 

integrity of the Nation’s waters and an 

interim goal in Section 101(a)(2) that, 

‘‘wherever attainable,’’ water quality 

provide for the protection and 

propagation of fish, shellfish, and 

wildlife and provides for recreation in 

and on the water. In implementing the 

CWA, the regulation at 40 CFR 131.10 

establishes provisions relating to the 

management of designated uses. In 

1977, an Office of General Counsel legal 

decision considered the practice of 

temporarily downgrading the WQS as it 

applies to a specific discharger rather 

than permanently downgrading an 

entire water body or waterbody 

segment(s) and determined that such a 

practice is acceptable under the EPA’s 

existing regulations as long as the 

variance is adopted consistent with the 

substantive and procedural 

requirements for permanently 

downgrading a designated use. In other 

words, a state or tribe may change the 

standard in a more targeted way rather 

than remove the standard all together. 

The EPA further explained that it would 

be appropriate to grant a variance based 

on any of the six factors for removing a 

designated use as listed in § 131.10(g).21

The state practice described in the 

Office of General Counsel legal decision 

became known as adopting a ‘‘variance’’ 

to WQS. Specifically, a variance is a 

time-limited designated use and 

criterion that is targeted to a specific 

pollutant(s), source(s), and/or water 

body or waterbody segment(s) that 

reflects the highest attainable condition 

during the specified time period. 

Variances are different from changes to 

the designated use and associated 

criteria in that they are intended as a 

mechanism to provide time for states, 

authorized tribes and stakeholders to 

implement adaptive management 

approaches that will improve water 

quality where the designated use and 

criterion currently in place are not being 

met, but still retain the designated use 

as a long term goal. Variances are 

limited in scope and are an 

environmentally preferable tool over a 

designated use change because 

variances retain designated use 

protection for all pollutants as they 

apply to all sources with the exception 

of those specified in the variance. Even 

the discharger who is given a variance 

for one particular constituent is required 

to meet the applicable criteria for all 

other constituents. The variance is given 

for a limited time period and the 

discharger must either meet the WQS 

upon the expiration of this time period 

or the state or tribe must adopt a new 

variance or re-justify the current 

variance subject to EPA review and 

approval. Thus, when properly applied, 

a variance can lead to improved water 

quality over time, and in some cases, 

full attainment of designated uses due to 

advances in treatment technologies, 

control practices, or other changes in 

circumstances, thereby furthering the 

objectives of the CWA. 

Presently, the nationally applicable 

WQS regulation only mentions 

variances in 40 CFR 131.13. This 

provision indicates that variance 

policies are general policies affecting 

the application and implementation of 

WQS, and that states and tribes may 

include variances policies in their state 

and tribal standards, at their discretion. 

The EPA provided variance procedure 

requirements when it promulgated WQS 

for Kansas (§ 131.34(c)), Puerto Rico 

(§ 131.40(c)), and the Great Lakes 

System (40 CFR part 132, Appendix F, 

Procedure 2). However, the nationally 

applicable regulation does not explicitly 

address questions such as when a 

variance can be granted, how a variance 

must be justified, what is required 

during the term of the variance, or for 

how long a variance can be granted. The 

EPA’s established position has been that 

variances, as time-limited and narrow 

use revisions, are appropriate WQS 

tools that must go through public review 

and require the EPA’s review and 

approval.22 This position is supported 

by the EPA’s practice regarding 

variances.23 Today, we recognize a more 

direct link to the CWA Section 101(a) 


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24 Discharger-specific Variances on a Broader 

Scale: Developing Credible Rationales for Variances 

that Apply to Multiple Dischargers, EPA–820–F– 

13–012, March 2013 (http://water.epa.gov/scitech/

swguidance/standards/upload/Discharger-specificVariances-on-a-Broader-Scale-Developing-CredibleRationales-for-Variances-that-Apply-to-MultipleDischargers-Frequently-Asked-Questions.pdf). 

goal of ‘‘restore and maintain’’ for 

variances. WQS variances are consistent 

with the ‘‘restore’’ aspect of the goal 

since variances are intended to allow 

incremental environmental progress in 

achieving designated uses. As described 

in detail in section III.F.2, the EPA is 

proposing a set of variance provisions 

that are in many ways parallel to the 

regulations in 131.10, but are tailored to 

better fit the circumstances where 

variances will allow for environmental 

progress toward achieving the goals of 

the CWA. The EPA notes that its 

understanding and past practice allows 

for variances whether or not those uses 

are specified in Section 101(a)(2), 

however, the demonstration may differ. 

States and tribes have expressed that 

variances are useful in a number of 

circumstances where the state or tribe 

has demonstrated that the designated 

use and criterion are not attainable 

today (or for a limited period of time), 

but may be attainable in the longer term. 

Examples include when: 

• Attaining the designated use and 

criterion is not feasible under the 

current conditions (e.g., attainment of 

numeric nutrient criteria would result 

in substantial and widespread social 

and economic impact) but could be 

feasible should circumstances change 

(e.g., development of less expensive 

pollution control technology or a change 

in local economic conditions); or 

• The state or tribe does not know 

whether the designated use and 

criterion can be attained, but feasible 

progress toward attaining the designated 

use and criterion can still be made by 

implementing known controls and 

tracking environmental improvements 

(e.g., complex use attainability 

challenges involving legacy pollutants). 

There are a variety of tools available 

to states, tribes and dischargers that can 

provide time to meet regulatory 

requirements; however, the most 

common regulatory tools considered are 

variances and permit compliance 

schedules. Which tool is appropriate 

depends upon the circumstances. 

Variances can be appropriate to address 

situations where it is known that the 

designated use and criterion are 

unattainable today (or for a limited 

period of time) but feasible progress 

could be made toward attaining the 

designated use and criterion. A permit 

compliance schedule, on the other 

hand, may be appropriate when the use 

is attainable, but the permittee needs 

additional time to modify or upgrade 

treatment facilities in order to meet its 

WQBEL such that a schedule and 

resulting milestones will lead to 

compliance ‘‘as soon as possible’’ with 

the WQBEL based on the currently 

applicable WQS. (See CWA section 

507(17) for a definition of ‘‘Schedules of 

compliance’’ and 40 CFR 122.47). 

The EPA is proposing and soliciting 

comment on revisions to the WQS 

regulation that will provide more 

specificity and clearer requirements on 

the development and use of variances. 

Such revisions will establish 

requirements to help improve water 

quality by allowing states and tribes 

time to work with stakeholders to 

address any challenges and 

uncertainties associated with attaining 

the designated use and the associated 

criterion. These revisions will also 

provide assurance that further feasible 

progress toward the designated use and 

criterion will be made during the 

variance period. 

The EPA’s proposed regulatory 

provisions for variances at § 131.14 

address the following key topic areas: 

(1) Applicability, (2) submission 

requirements, (3) implementing 

variances, (4) how to renew a variance, 

and (5) conforming changes to §§ 131.34 

and 131.40. A discussion of this 

proposal and the rationale for each 

proposed regulatory provision follows. 

2. Rationale and the EPA Proposal 

a. Part 1—Applicability of Variances 

i. The Scope of a Variance 

To provide clarity, promote 

consistency, and avoid conflicting 

interpretations of WQS variances, the 

EPA is proposing a new regulatory 

definition for WQS variance at § 131.14. 

A water quality standards variance 

(WQS variance) is a time-limited use 

and criterion for a specified pollutant(s), 

permittee(s), and/or water body or 

waterbody segment(s) that reflect the 

highest attainable condition during the 

specified time period. Variances are 

WQS subject to EPA review and 

approval or disapproval and must be 

consistent with § 131.14. As WQS, 

variances are subject to § 131.20(a) and 

thus must be reviewed on a triennial 

basis. States and tribes continue to have 

broad discretion on the structure of their 

triennial reviews and can decide 

whether and how to modify or adopt 

WQS as a result of a triennial review. 

The EPA is also proposing to specify at 

§ 131.14(a)(1) that all other applicable 

water quality standards not specifically 

addressed by the variance remain 

applicable. 

Typically, states find variances that 

apply to a specific pollutant(s) and 

discharger(s) to be most useful. If a state 

believes that the designated use and 

criterion is unattainable for a period of 

time because the discharger cannot meet 

its WQBEL, the state may grant a 

discharger-specific variance so long as 

the variance is consistent with the CWA 

and implementing regulation. 

Similarly, if a state or tribe believes 

that the designated use and criterion is 

unattainable as it applies to multiple 

permittees because they are all 

experiencing challenges in meeting their 

WQBELs for the same pollutant for the 

same reason, regardless of whether or 

not they are located on the same water 

body, a state or tribe may streamline its 

variance process by granting one 

variance that applies to all these 

dischargers (i.e., a multiple discharger 

variance) so long as the variance is 

consistent with the CWA and 

implementing regulations. The EPA 

recognized the utility of a multiple 

discharger variance and its distinction 

from an individual discharger variance 

in the ‘‘Water Quality Guidance for the 

Great Lakes System: Supplementary 

Information Document’’ (SID; EPA–820– 

B–95–001; March 1995). The EPA 

provided further clarification regarding 

multiple discharger variances in the 

‘‘Water Quality Standards for the State 

of Florida’s Lakes and Flowing Waters; 

Final Rule’’ (75 FR 75790, December 6, 

2010). More recently in March 2013, the 

EPA provided a set of frequently asked 

questions to assist states and tribes in 

developing credible rationales for 

multiple discharger variances. 24

Where a state or tribe can demonstrate 

that the designated use and criterion 

currently in place for a specific 

pollutant is not attainable immediately 

(or for a limited period of time) for an 

entire water body, the state or tribe may 

adopt a waterbody variance as an 

alternative to a designated use change 

for the water body so long as the 

variance is consistent with the CWA 

and implementing regulation. In such 

an instance, the variance applies to the 

water body itself, rather than to any 

specific source or sources. A waterbody 

variance provides time for the state or 

tribe to work with both point and 

nonpoint sources to determine and 

implement adaptive management 

approaches on a waterbody/watershed 

scale to achieve pollutant reductions 

and strive toward attaining the water 

body’s designated use and associated 

criteria. 

States and tribes retain discretion as 

to whether, when, and where to adopt 

variances. However, consistent with the 


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EPA’s current position, should a state or 

tribe choose to grant a variance, it is 

subject to the EPA’s review and 

approval or disapproval—regardless of 

the scope of the variance. 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

The EPA also invites comment on the 

applicability of variances to individual 

dischargers, multiple dischargers and to 

entire water bodies. 

ii. An EPA Approved Variance Is Only 

Applicable for CWA Section 402 

Permitting Purposes and in Issuing 

Certifications Under Section 401 of the 

Act 

The proposed WQS regulation at 40 

CFR 131.14(a)(2) would specify that 

where a state or authorized tribe adopts 

a variance, the state or tribal regulations 

must continue to reflect the underlying 

designated use and criterion unless the 

state or tribe adopts and the EPA 

approves a revision to the designated 

use and criterion as consistent with 

§ 131.10 or § 131.11. The interim 

requirements specified in the variance 

apply only for CWA section 402 

permitting purposes and in issuing 

certifications under section 401 of the 

Act for the pollutant(s), permittee(s) 

and/or water body or waterbody 

segment(s) covered by the variance. 

To date, the EPA’s available guidance 

has characterized variances as 

temporary changes to the designated 

use; however, such a characterization 

might imply that the variance replaces 

the designated use while the variance is 

in effect. This has led to conflicting 

interpretations of how variances affect 

the implementation of WQS through 

CWA programs, such as NPDES permits 

and the CWA 303(d) requirements. 

The CWA and implementing 

regulation direct the states to add waters 

that are not attaining any applicable 

WQS to their 303(d) impaired waters 

list. Specifically, CWA section 

303(d)(1)(A) states that ‘‘each state shall 

identify those waters within its 

boundaries for which the effluent 

limitations required by section 

301(b)(1)(A) and section 301(b)(1)(B) of 

this title are not stringent enough to 

implement any water quality standards 

applicable to such waters’’(emphasis 

added). Stakeholders have expressed 

concern that if the interim requirements 

do not replace the designated use and 

criterion, there will effectively be two 

WQS applicable for purposes of 

implementing the CWA section 303(d) 

program where a variance has been 

approved. However, the interim 

requirements do not replace the 

designated use and criteria for the water 

body as a whole. Discharger-specific 

variances affect the development of 

WQBELs for the discharger(s) specified 

in the variance; they do not affect the 

designated use and criterion that apply 

to the rest of the water body. In 

addition, variances are time-limited and 

intended as a tool to facilitate water 

quality improvements, not to revise the 

long term goals for a water body. 

Therefore, any implementation of CWA 

section 303(d) must continue to be 

based on the underlying designated uses 

and criteria for the water body rather 

than the interim requirements. 

By requiring state and tribal 

regulations to maintain the underlying 

designated use and criterion where a 

variance is approved, the proposed 

regulation will ensure it is clear that the 

interim requirements associated with a 

variance do not replace the designated 

use and criterion. This will, in turn, 

facilitate a consistent interpretation 

regarding how variances affect the 

implementation of WQS through the 

various CWA programs and how 

variances are to be used to support 

feasible progress toward attaining the 

underlying designated use and criteria. 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

iii. Relationship to Technology-Based 

Requirements in CWA Sections 301(b) 

and 306 

The EPA is proposing to add 

paragraph (a)(3) to 40 CFR 131.14 to 

specify that a variance shall not be 

granted 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. 

As with designated use changes, 

variances are not permissible if the 

WQS can be attained by implementing 

technology-based effluent limits 

required under section 301(b) and 306 

of the Act. Section 301(b)(1)(A), (B), and 

section 306 of the Act provide for 

technology-based requirements through 

effluent limitations guidelines and new 

source performance standards. These 

technology-based requirements 

represent the minimum level of control 

that must be imposed in a permit (40 

CFR 125.3). Because variances are 

allowed only where the designated use 

and criterion are demonstrated to be 

unattainable during the term of the 

variance, it would not be appropriate to 

use a variance if the designated use and 

criterion can be attained by 

implementing the technology-based 

requirements of the Act. 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

b. Part 2—Submission Requirements 

This section describes the relevant 

information that a state or authorized 

tribe must submit to the EPA when 

requesting the EPA’s review and 

approval of a variance. 

i. Components of a Variance 

1. Identifying Information—Pollutant(s), 

Permittee(s), Location 

The EPA is proposing to add 

paragraph (b)(1)(i) at 40 CFR 131.14 

requiring states and authorized tribes to 

identify, in the variance, the 

pollutant(s), the permittee(s), and/or the 

water body or waterbody segment(s) to 

which the variance applies. 

This proposed regulatory revision will 

require all variances to specify for what, 

to whom, and/or where the variance 

applies, which will help ensure full 

transparency and public participation 

on the applicability and scope of the 

variance. This will alleviate any 

inconsistencies in the way states and 

tribes have articulated where, when and 

how the variance applies. 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

2. Numeric Interim Requirements That 

Apply During a Variance 

The EPA is proposing to add 

paragraph (b)(1)(ii) at 40 CFR 131.14 to 

require that a variance must specify (1) 

the highest attainable interim use and 

numeric criterion that will apply during 

the term of the variance or (2) an interim 

numeric effluent condition that reflects 

the highest attainable condition for a 

specific permittee(s) during the term of 

the variance. Neither (1) nor (2) shall 

result in any lowering of the currently 

attained water quality, unless a timelimited lowering of water quality is 

necessary during the term of a variance 

for restoration activities, consistent with 

§ 131.14(b)(2)(ii). 

As variances have been implemented 

to date, some states and tribes have not 

identified in the variance the interim 

requirements that shall apply for 

permitting purposes during the term of 

the variance. Specifying the interim 

requirements to be met during the 

variance will provide the legal basis for 

permit writers to develop permit limits 

that derive from and comply with a 

WQS, as required by the permitting 

regulations at 40 CFR 122.44(d)(vii)(A). 

As discussed in Section III.C, the EPA 

is proposing a requirement that a state 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
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25The EPA’s 1994 WQS Handbook stated that 

‘‘EPA has approved state adopted variances in the 

past and will continue to do so if ...reasonable 

progress is being made toward meeting the 

standards.’’ The EPA’s 1998 ANPRM indicated that 

the EPA was considering revising its regulations to 

include a requirement that before a variance may 

be granted the applicant must include 

documentation that ‘‘...reasonable progress will be 

made toward meeting the underlying or original 

standard.’’ The EPA did not propose a revised 

regulation at that time. 

26A PMP is a structured process to reduce 

loadings of a pollutant by identifying, preventing 

and reducing loadings, improving processes and 

improving wastewater treatment. 

or tribe adopts the highest attainable use 

closest to the 101(a)(2) goals when it has 

demonstrated that the use specified in 

CWA section 101(a)(2) or a subcategory 

of such a use is not attainable based on 

a UAA. The EPA is proposing that a 

similar requirement apply to variances 

such that if states or tribes can 

demonstrate that a use specified in 

section 101(a)(2) or subcategory of such 

a use is not attainable for the variance 

period, then the state or tribe must 

adopt a variance reflecting the highest 

attainable condition during the term of 

the variance. Such a requirement 

ensures that feasible progress will be 

made towards the designated use and 

the criterion to protect that use during 

the period of the variance. 

Requiring that states and tribes 

establish interim requirements that 

apply for purposes of CWA section 402 

permitting and in issuing certifications 

under section 401 of the Act, and that 

such requirements reflect the highest 

attainable condition during the 

variance, creates a framework for 

variances to provide states and tribes 

with time to implement adaptive 

management approaches that drive 

progress towards meeting the designated 

use and criterion in a transparent and 

accountable manner—a key 

environmental benefit of a variance. 

This is consistent with previous EPA 

statements in the EPA’s WQS Handbook 

and 1998 ANPRM that discuss the 

EPA’s position regarding the progress to 

be made during the term of the variance 

towards attaining the designated use 

and criterion.25

A state’s or tribe’s determination or 

identification of the highest attainable 

interim use need not be complex. A 

state or tribe could simply include the 

phrase ‘‘variance affected’’ or ‘‘variance 

modified’’ to the current use description 

or the state or tribe could describe the 

interim use by identifying the parameter 

included in the variance, such as ‘‘pHlimited’’ use as a way to provide 

transparency. States and tribes may find 

it appropriate to adopt such ‘‘variance 

modified’’ uses as the highest attainable 

interim use, rather than adopting an 

alternate use from the state or tribe’s 

current use classification system, as 

they might be more likely to do if they 

were making a permanent change to a 

designated use. To determine the 

numeric criterion that protects the 

highest attainable interim use, a state or 

tribe shall determine the condition that 

is both feasible to attain and closest to 

the protection afforded by the 

designated use and criteria. A state’s or 

tribe’s determination of the highest 

attainable condition and numeric 

interim requirements to apply during a 

waterbody variance should include 

consideration and evaluation of 

pollutant reductions from all 

contributing sources. This could include 

an evaluation of the point source 

controls, pollutant minimization plans 

and NPS pollutant reductions that could 

be achieved in the water body. 

Rather than identifying the highest 

attainable interim use and interim 

numeric criterion, a state or tribe may 

choose to specify in its variance that the 

applicable interim water quality 

standard shall be defined by a numeric 

effluent condition that reflects the 

highest attainable condition for a 

specific permittee(s) during the term of 

the variance. Adopting a numeric 

effluent condition that reflects the 

highest attainable condition is 

reasonable because the resulting 

instream concentration reflects the 

highest attainable interim use and 

interim criterion and, therefore, the 

interim numeric effluent condition is 

acting as a surrogate for the interim use 

and interim criterion. If current effluent 

quality represents the highest attainable 

condition for a specific permittee(s), 

then this would become the interim 

requirement during the term of the 

variance. In situations where a variance 

addresses a pollutant(s) for which no 

feasible wastewater treatment option 

can be identified, an interim numeric 

water quality-based effluent condition 

reflecting the levels currently achievable 

and a requirement to develop and 

implement a Pollutant Minimization 

Program (PMP) 26 together would 

constitute the highest attainable effluent 

condition. 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

3. Expiration Date 

The EPA is proposing to add 

paragraph (b)(1)(iii) at 40 CFR 131.14 to 

require that all variances must include 

an expiration date and that variances 

must be as short as possible but expire 

no later than 10 years after the date the 

state or tribe adopts the variance, 

consistent with § 131.14(b)(2). 

Variances are time-limited; therefore, 

in order to promote consistency and 

clarity and to ensure that variances are 

truly time-limited, the EPA is proposing 

that all variances include an explicit 

expiration date. Such expiration date 

must be consistent with the 

demonstration that a variance is needed 

for a specified period of time based on 

one of the factors identified in proposed 

§ 131.14(b)(2), must be as short as 

possible, and cannot exceed 10 years. 

Establishing an expiration date will 

ensure that the conditions of a variance 

will be thoroughly re-evaluated 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 variance may be renewed). 

The EPA believes that up to 10 years 

is a reasonable duration for a variance, 

as it represents two 5-year NPDES 

permit terms and provides adequate 

opportunity to implement measures to 

make feasible progress. A maximum of 

10 years is also sufficient to reflect 

changing circumstances, such as the 

availability of new economic 

information or affordable treatment 

technology that may impact whether or 

not a variance is still warranted. 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

ii. Demonstrating the Need for a 

Variance—Supporting Documentation 

The EPA is proposing to add 

paragraph (b)(2) at 40 CFR 131.14 to 

specify that in order to document that 

a variance is needed for uses specified 

in section 101(a)(2) or sub-categories of 

such uses, the state or tribe must 

demonstrate that attaining the 

designated use and criterion is not 

feasible during the term of the variance 

because of one of the factors listed in 

§ 131.10(g) or because actions necessary 

to facilitate restoration through dam 

removal or other significant wetland or 

stream reconfiguration activities 

preclude attainment of the designated 

use and criterion while the actions are 

being implemented. 


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27The § 131.10(g)(6) analysis would include costs 

of point source controls and the impacts on the 

surrounding community. 

28As specified in § 131.10(g)(3) and crossreferenced in § 131.14(b)(2)(i). 

The regulation at 40 CFR 131.10(g) 

identifies six factors that may be used to 

demonstrate, through a UAA, when a 

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

Act, or a subcategory of such a use, is 

unattainable. The EPA’s current 

position (and its longstanding practice) 

is that one of these same § 131.10(g) 

‘‘attainability’’ factors must be used by 

states and tribes to justify why and for 

how long a variance is necessary for 

uses specified in section 101(a)(2) or 

sub-categories of such uses. In 

developing this proposed regulation, the 

EPA considered other situations where 

a variance may be appropriate and the 

EPA concluded that the current 

§ 131.10(g) factors do not accommodate 

situations where a variance may be 

necessary to facilitate short-term efforts 

to restore the natural physical features 

(i.e., natural geomorphology) of a 

system. Specifically, this is meant to 

address the situation when a timelimited exceedance of a criterion might 

be expected while efforts for dam 

removal or significant wetlands or 

stream reconfiguration/restoration 

efforts are underway to facilitate 

restoration of the natural physical 

features of a water body. The proposed 

new factor is intended only to cover the 

length of time necessary to remove the 

dam or the length of time in which 

stream restoration activities are actively 

on-going. Although such a variance 

might not directly impact a NPDES 

permittee, it may be necessary to allow 

states and tribes to certify that any 

federal license or permit that may result 

in the discharge of pollutants in state/ 

tribal jurisdiction will still meet their 

state/tribal WQS, under CWA section 

401. 

In determining whether or not to grant 

a variance for uses specified in section 

101(a)(2) and sub-categories of such 

uses (and subsequently submit such a 

variance to the EPA for review and 

approval), the state or tribe must 

consider and evaluate whether the 

available information supports a 

conclusion that the designated use and 

criteria are not feasible to attain during 

the variance period based on one of the 

factors listed in § 131.14(b)(2). 

A factor that has been commonly used 

to demonstrate the need for a discharger 

specific variance is § 131.10(g)(6), which 

provides that a state or tribe may 

remove a designated use if ‘‘[c]ontrols 

more stringent than those required by 

sections 301(b) and 306 of the Act 

would result in substantial and 

widespread economic and social 

impact.’’ The Interim Economic 

Guidance for Water Quality Standards, 

published March 1995 (see http:// 

water.epa.gov/scitech/swguidance/ 

standards/economics/) provides 

guidance on the types of information 

that a state or tribe should consider 

evaluating and include in its record to 

support a variance based on 

§ 131.10(g)(6).27

The state’s or tribe’s record for 

granting a variance based on ‘‘Human 

caused conditions or sources of 

pollution prevent the attainment of the 

use and cannot be remedied or would 

cause more environmental damage to 

correct than to leave in place’’ 28 may 

include, but not be limited to, 

consideration and evaluation of the 

following types of available information: 

• Monitoring data to determine the 

current ambient conditions. 

• Data/maps showing the 

geographical extent of the problem. 

• Engineering studies and literature 

of the relevant remediation alternatives 

and best management practices that 

could be implemented and 

documentation that none of the 

alternatives or practices, if 

implemented, would result in attaining 

the designated use and criteria within 

the variance timeframe. 

• Description, with supporting 

information from the scientific 

literature, of the environmental impacts 

associated with the remedial 

alternatives and an analysis of what 

could be done in an environmentally 

safe manner. Such an analysis would 

facilitate a determination of whether the 

human caused condition or source of 

pollution would cause more 

environmental harm to remedy than to 

leave in place. 

• Modeling data showing the 

associated pollutant reductions 

achievable within the timeframe of the 

variance compared to reductions needed 

to achieve the designated use and 

criteria. 

A variance should be a transparent 

mechanism that allows a state, tribe or 

discharger a defined period of time to 

conduct any necessary studies so long 

as the state or tribe demonstrates the 

need for the variance in accordance 

with the regulations and the state or 

tribe retains the applicable criteria for 

all other pollutants. The EPA commonly 

receives questions about whether permit 

compliance schedules can be used for 

this purpose. Permit compliance 

schedules may only be used in 

situations where time is needed for a 

permittee to come into compliance with 

the WQBEL in the permit, not to 

provide time to address uncertainty 

regarding the appropriateness or 

attainability of the WQS. 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

iii. Identifying and Documenting the 

Controls for Other Sources Related to 

the Pollutant(s) and Location(s) 

Specified in a Waterbody Variance That 

Could Be Implemented 

The EPA is proposing to add 

paragraph (b)(3) at § 131.14 to specify 

that, in addition to the other 

requirements under 131.14(b), for a 

waterbody variance (one not limited to 

a specific discharger or dischargers), a 

state or tribe must include an 

identification and documentation of any 

cost-effective and reasonable BMPs for 

nonpoint sources related to the 

pollutant(s) and location(s) specified in 

the variance that could be implemented 

water body wide to make progress 

towards attaining the designated use 

and criterion. A state or tribe must 

provide public notice and comment for 

any such documentation. 

Because other sources of pollution 

(e.g., nonpoint sources) can have a 

significant bearing on whether the 

designated use and associated criterion 

for the entire water body are attainable, 

it is essential for states and tribes to 

consider and provide information to the 

public regarding the impact that 

controlling other sources through 

application of cost-effective and 

reasonable BMPs could have on water 

quality before granting a waterbody 

variance. Doing so could inform the 

state’s or tribe’s assessment of what 

interim actions may be needed to make 

feasible progress towards attaining the 

designated use and criterion related to 

the pollutant(s) and location(s) specified 

in the variance, as well as what the 

highest attainable interim designated 

use and criterion may be and for how 

long they may be needed. 

A similar requirement is set out in the 

WQS regulation at § 131.10(d) and (h)(2) 

which specifies that a use is deemed 

attainable and cannot be removed if it 

can be achieved by the imposition of/

implementing effluent limits required 

under sections 301(b) and 306 of the Act 

as well as cost-effective and reasonable 

best management practices for nonpoint 

source control. The EPA’s current 

position is that before removing a 

designated use states and tribes must 

first evaluate the impact that point and 

nonpoint source controls might have on 

water quality. When conducting such an 

evaluation, states and tribes should 

consider the impacts from 


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29 i.e., not just those that may already be required 

by state regulations. 30 63 FR 36759. 

implementing any 29 cost-effective and 

reasonable BMPs for nonpoint source 

controls water body wide. In situations 

where it can be demonstrated that a use 

is precluded by non-anthropogenic 

stressors (e.g., high levels of a naturally 

occurring metal in a surface water 

body), the EPA does not expect states 

and tribes to evaluate nonpoint source 

controls, as controlling nonpoint 

sources would not lead to attainment. 

The EPA’s proposed requirement for 

waterbody variances differs from those 

applicable to designated uses because 

variances are time-limited and targeted 

serving as a tool to facilitate progress 

toward the designated use and criterion. 

It is unnecessary to require states and 

tribes to demonstrate that the designated 

use and criteria are unattainable even if 

cost effective and reasonable BMPs were 

implemented, as is required when 

revising a designated use, because 

variances do not ‘‘permanently’’ 

downgrade the designated use but 

establish a regulatory mechanism by 

which feasible progress will be made 

during the term of the variance. Instead, 

a requirement to identify and document 

cost-effective and reasonable BMPs for 

other sources will assist states and tribes 

in identifying the actions they may need 

to implement to meet their interim 

requirements as well as to make feasible 

progress towards attaining the 

designated use and criterion. 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

c. Part 3—Implementing Variances 

The EPA is proposing to add 

paragraph (c) at 40 CFR 131.14 

specifying that variances serve as the 

basis of a WQBEL included in a NPDES 

permit for the period the variance is in 

effect. Any activities required to 

implement the variance shall be 

included as conditions of the NPDES 

permit for the permittee(s) subject to the 

variance. 

When variances are adopted and 

approved, they serve as the basis of a 

WQBEL included in a NPDES permit 

during the variance period. However, 

any specific actions that will be 

necessary for the discharger to 

implement the variance and make such 

feasible progress are typically at the 

discretion of the permitting authority. 

Therefore, in § 131.14(c), the EPA is 

proposing regulatory language similar to 

§ 131.34(c) and § 131.40(c) linking the 

requirements of variances to the NPDES 

permitting process, specifically 40 CFR 

122.44(d)(1)(viii)(A) that requires the 

permitting authority to establish 

limitations that derive from and comply 

with the applicable WQS. The EPA 

believes the proposed regulatory 

requirement will ensure proper 

accountability when implementing 

variances. The proposed provision 

reflects the provisions in the ‘‘Water 

Quality Guidance for the Great Lakes 

System’’ (40 CFR part 132, Appendix F, 

Procedure 2). 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

d. Part 4—How To Renew a Variance 

The EPA is proposing to add 

paragraph (d) at 40 CFR 131.14 to 

specify that to obtain the EPA’s 

approval of a variance renewal, the state 

or tribe must meet the requirements of 

§ 131.14 and provide appropriate 

documentation of the steps taken to 

meet the requirements of the previous 

variance. Renewal of the variance may 

be disapproved if the applicant did not 

comply with the conditions of the 

original variance, or otherwise does not 

meet the requirements of this section. 

For renewal of a waterbody variance, 

the state or tribe must also include 

documentation of whether and to what 

extent cost-effective and reasonable 

BMPs have been implemented to 

address the pollutant(s) subject to the 

variance and the water quality progress 

achieved during the variance period. 

Although the EPA is proposing to 

establish a maximum single variance 

term of no more than 10 years, it 

recognizes that there may be 

circumstances in which a renewal of a 

variance is both necessary and 

appropriate. As the EPA’s 1998 ANPRM 

articulates, variances are WQS and 

should be continued or extended only 

where the initial conditions for granting 

the variance still apply.30 If a variance 

term will expire and the applicant 

complied with the conditions of the 

original variance (e.g., feasible progress 

has been made), but the designated use 

and criterion remain unattainable, then 

renewal of a variance may be an 

appropriate option for the state or tribe 

to consider. 

The EPA is providing an additional 

requirement for waterbody variances 

because both point and nonpoint 

sources are contributing to the water 

quality challenges. The state or tribe 

must document whether and to what 

extent BMPs have been implemented 

and the water quality progress achieved 

during the variance period. 

This proposed regulation explicitly 

provides that the EPA may disapprove 

a renewal of the variance if the 

applicant did not comply with the 

conditions of the original variance, or 

otherwise does not meet the 

requirements of § 131.14. The EPA 

recognizes that circumstances out of the 

permittee, state’s or tribe’s control may 

impact the ability to meet the specific 

conditions and requirements of the 

variance, even if all required actions to 

implement the variance were 

completed. The proposed regulatory 

language allows the EPA to consider 

these factors when determining whether 

to grant a WQS variance renewal. If the 

EPA disapproves the variance renewal, 

then the state or tribe must implement 

its water quality program to meet the 

applicable designated use and 

associated criteria or conduct a UAA to 

justify a revision to the designated use 

and associated criteria. 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

e. Part 5—Variances for the EPAPromulgated Designated Uses 

The EPA is proposing to delete 

detailed variance procedures 

promulgated by the EPA in 40 CFR 

131.34(c) and 131.40(c) and replace 

them with language specifying that the 

appropriate Regional Administrators 

may grant variances from the EPApromulgated regulations for Kansas and 

Puerto Rico consistent with this 

proposed requirements at § 131.14. 

The EPA promulgated variance 

procedures that the Regional 

Administrator could use to grant 

variances from the specific WQS the 

EPA promulgated for Kansas and Puerto 

Rico in § 131.34 and 131.40. This 

proposal reflects the most efficient and 

transparent approach to ensure that 

variances granted by the Regional 

Administrator for the federally 

promulgated standards in Kansas and 

Puerto Rico meet the same requirements 

as the rest of the United States once the 

EPA finalizes the nationally applicable 

revisions to 40 CFR part 131. 

The EPA invites comment on its 

proposal and on any other options it 

should consider or on the 

interpretations expressed in this section. 

G. Provisions Authorizing the Use of 

Permit-Based Compliance Schedule 

1. The EPA Proposal 

The EPA is proposing to add a new 

regulatory provision at § 131.15 to be 

consistent with the decision of the EPA 

Administrator in In the Matter of StarVerDate Mar<15>2010 16:53 Sep 03, 2013 Jkt 229001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\04SEP2.SGM 04SEP2

tkelley on DSK3SPTVN1PROD with PROPOSALS2
Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / Proposed Rules 54537 

31 ‘‘The Trust Territory of the Pacific Islands’’ 

became the ‘‘Commonwealth of the Northern 

Mariana Islands’’ in 1986 via Presidential 

Proclamation. See http://

www.presidency.ucsb.edu/ws/

index.php?pid=36688#axzz1XrK7AXLN. 

Kist Caribe, Inc. (1990 WL 324290 

(EPA), 1990 EPA App. LEXIS 45, 3 EAD 

172 (April 16, 1990)). This provision 

would clarify that a permitting authority 

may only issue compliance schedules 

for WQBELs in NPDES permits if the 

state or tribe has authorized issuance of 

such compliance schedules pursuant to 

state or tribal law in its water quality 

standards or implementing regulations. 

Any such compliance schedule 

authorizing provision is a WQS subject 

to the EPA’s review and approval. The 

proposed provision would also clarify 

that individual compliance schedules 

issued pursuant to such authorizing 

provisions are not themselves WQS but 

must be consistent with CWA section 

502(17), the state’s or tribe’s EPAapproved compliance schedule 

authorizing provision, and the 

requirements of 40 CFR 122.2 and 

122.47. 

2. Rationale for Revision 

CWA section 502(17) defines 

‘‘schedule of compliance’’ to mean ‘‘a 

schedule of remedial measures 

including an enforceable sequence of 

actions or operations leading to 

compliance with an effluent limitation, 

other limitation, prohibition, or 

standard.’’ The EPA’s NPDES regulation 

at 40 CFR 122.2 defines a schedule of 

compliance as ‘‘a schedule of remedial 

measures included in a ‘permit,’ 

including an enforceable sequence of 

interim requirements . . . leading to 

compliance with the CWA and 

regulations.’’ Section 301(b)(1)(C) of the 

Act specifies that there shall be 

achieved ‘‘. . . not later than July 1, 

1977, any more stringent limitation, 

including those necessary to meet WQS, 

treatment standards, or schedules of 

compliance, established pursuant to any 

State law or regulations (under authority 

preserved by section 1370 of this title) 

or any other Federal law or regulation, 

or required to implement any applicable 

water quality standard established 

pursuant to this chapter.’’ 

In, In the Matter of Star-Kist Caribe, 

Inc., the EPA Administrator (in an 

appeal of an EPA-issued NPDES permit) 

interpreted CWA 301(b)(1)(C) to mean 

that (1) after July 1, 1977, permits must 

require immediate compliance with 

(i.e., may not contain compliance 

schedules for) effluent limitations based 

on WQS adopted before July 1, 1977, 

and (2) permit compliance schedules are 

allowed for effluent limitations based on 

WQS adopted after that date only if the 

state or tribe has clearly indicated in its 

WQS or implementing regulations that 

it intends to allow them (i.e., the state’s 

or tribe’s WQS or implementing 

regulations must contain a provision 

authorizing the use of permit-based 

compliance schedules). The latter 

requirement ensures that a permit 

including such a compliance schedule 

still meets WQS pursuant to CWA 

section 301(b)(1)(C). 

The EPA’s current WQS regulation is 

silent regarding compliance schedules 

and compliance schedule authorizing 

provisions. As a result, despite StarKist, the EPA is concerned that state/

tribal permitting authorities may be 

including compliance schedules in 

permits, thus delaying compliance with 

a WQS-based WQBEL, even though the 

state/tribe may not have authorized the 

use of such compliance schedules in its 

WQS or implementing regulations. 

Consistent with the Star-Kist decision, 

a state or tribe has the discretion to 

include a compliance schedule 

authorizing provision in its WQS or 

implementing regulations. Such a 

provision may also be codified in a state 

or tribe’s NPDES regulations. However, 

regardless of where it appears, a 

compliance schedule authorizing 

provision adopted pursuant to state or 

tribal law is considered a WQS subject 

to the EPA’s approval under CWA 

section 303(c)(3). Although a 

compliance schedule authorizing 

provision does not describe the desired 

condition or level of protection of a 

water body in exactly the same way as 

a designated use or water quality 

criteria, it expresses the state’s or tribe’s 

intent to allow a delay in meeting the 

desired condition. Compliance schedule 

authorizing provisions allow the 

permitting authority to provide a 

permittee additional time to comply 

with a WQBEL that derives from and 

complies with the applicable WQS 

beyond the date of permit issuance, 

which is the date upon which a 

permittee is otherwise required to 

comply with its WQBEL. In addition, as 

articulated in the Star-Kist decision, 

states and tribes may only allow this 

delay if the applicable WQS is new or 

revised, after July 1, 1977. 

When states and tribes authorize the 

use of compliance schedules in their 

WQS or implementing regulations, they 

ensure that WQBELs subject to 

appropriately issued compliance 

schedules are ‘‘fully consistent with, 

and therefore ‘meet,’ the requirements of 

the State or tribal water quality 

standard, as contemplated by [CWA] 

301(b)(1)(C).’’ Star-Kist at 175. Once 

approved pursuant to CWA 303(c)(3), 

the compliance schedule authorizing 

provision itself becomes part of the 

applicable WQS; therefore, any delay in 

compliance with a WQBEL pursuant to 

that permit compliance schedule would 

be consistent with state/tribal WQS. A 

compliance schedule, as defined by 

section 502(17) of the Act, that is 

granted pursuant to a state’s or tribe’s 

approved compliance schedule 

authorizing provision is, on the other 

hand, a permitting tool and is not itself 

considered a WQS. The EPA has 

implemented section 502(17) of the Act 

in the context of the NPDES permitting 

program at 40 CFR 122.2 and 122.47. 

Any compliance schedule, itself, must 

be consistent with these provisions. 

The EPA invites comments on the 

proposed addition of § 131.15. The EPA 

also invites comment on any other 

options it should consider or on the 

interpretations expressed in this section. 

H. Other Changes 

1. The EPA Proposal 

In the course of developing this 

proposal, the EPA identified several 

spelling mistakes, grammatical errors 

and/or inconsistencies, and incorrect 

citations in 40 CFR part 131, as well as 

the need for various conforming edits 

(e.g., provisions that need to be renumbered or re-lettered based on a 

regulatory addition or deletion outlined 

in this proposal). The EPA is proposing 

the following changes: 

• § 131.2: Change ‘‘. . . necessary to 

protect the uses’’ to ‘‘. . . that protect 

the designated uses’’ (consistency with 

terminology in § 131.11). 

• § 131.3(h): Change ‘‘technologybases’’ to ‘‘technology-based’’ (spelling 

mistake). 

• § 131.3(j): Delete ‘‘the Trust 

Territory of the Pacific Islands.’’ 31 Insert 

the word ‘‘the’’ in front of ‘‘water 

quality standards program’’ 

(grammatical clarification). 

• § 131.5(a)(1): Change ‘‘. . . has 

adopted water uses’’ to ‘‘. . . has 

adopted designated water uses’’ 

(grammatical clarification). 

• § 131.5(a)(2): Insert ‘‘. . . based on 

sound scientific rationale’’ (consistency 

with language in § 131.11). 

• § 131.10(j): Insert ‘‘and § 131.10(g)’’ 

before the word ‘‘whenever’’ 

(consistency with proposed revisions to 

§ 131.10(g)). 

• § 131.10(j)(2): Insert ‘‘, to remove a 

subcategory of such a use,’’ after the first 

instance of ‘‘. . . specified in section 

101(a)(2) of the Act’’ (legal clarification 

that a UAA is also required when 

removing a subcategory of a use 

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

without adopting another use in its 

place). 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
54538 Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / Proposed Rules 

• § 131.11(a)(2): Change reference 

from ‘‘40 CFR part 35’’ to ‘‘40 CFR part 

130’’ to reflect the correct citation. 

• § 131.11(b): Italicize ‘‘Form of 

criteria’’ (consistency with formatting in 

§ 131.11(a)). 

• § 131.12(a)(2): Insert ‘‘the protection 

and’’ into the phrase ‘‘propagation of 

fish, shellfish and wildlife’’ to be 

consistent with CWA 101(a)(2) and the 

rest of the WQS regulation at part 131. 

Change ‘‘assure’’ to ‘‘ensure’’ 

(grammatical clarification). 

• § 131.20(b): Change ‘‘hold a public 

hearing’’ to ‘‘hold public hearings’’ and 

add ‘‘or revising’’ after ‘‘reviewing’’ 

(consistency with CWA 303(c) and 

§ 131.20(a)). Insert ‘‘EPA’s’’ in front of 

‘‘public participation regulation’’ 

(clarification that 40 CFR part 25 is the 

EPA’s regulation). Delete the phrase 

‘‘EPA’s water quality management 

regulation (40 CFR 130.3(b)(6))’’ 

(nonexistent citation). 

The EPA invites comments on the 

proposed amendments described above. 

The EPA also invites comment on any 

other options it should consider or on 

the interpretations expressed in this 

section. 

IV. When does this action take effect? 

Comments on this proposed 

rulemaking must be received on or 

before December 3, 2013. Should this 

proposed rulemaking be finalized, the 

effective date will likely be 60 days after 

date of publication of the final rule in 

the Federal Register. For judicial review 

purposes, the effective date will likely 

be 60 days after date of publication of 

the final rule in the Federal Register. 

The EPA is proposing to require states 

and tribes to meet the requirements of 

the final rule on the effective date of the 

final rule. The EPA’s expectation is that, 

where a new or revised requirement 

necessitates a change to state or tribal 

WQS, such changes will occur within 

the next triennial review that the state 

or tribe initiates after the EPA’s 

publication of the final rule. 

The EPA invites comments on the 

proposed effective dates. The EPA also 

invites comment on any other options it 

should consider or on the 

interpretations expressed in this section. 

V. Economic Impacts on State and 

Tribal WQS Programs 

The EPA evaluated the potential 

incremental administrative burdens and 

costs that may be associated with this 

proposal. Incremental burden and costs 

are those above and beyond the burden 

and costs associated with 

implementation of current WQS 

regulations. Because this proposal will 

not establish any requirements directly 

applicable to regulated entities, the 

focus of the EPA’s economic analysis is 

to estimate the potential administrative 

burden and costs to state, tribal, and 

territorial governments, and the EPA. 

The EPA’s economic analysis is 

documented in Economic Analysis for 

the Water Quality Standards Regulatory 

Clarifications (Proposed Rule) and can 

be found in the docket for this proposal. 

The EPA assessed the potential 

incremental burden and costs associated 

with this proposed regulation revisions 

by first identifying those elements of the 

proposed revisions that may impose 

incremental burdens and costs. The EPA 

estimated the incremental number of 

labor hours potentially required by 

states and tribes to comply with those 

elements of the proposed regulations, 

and then estimated the costs associated 

with those additional labor hours. The 

EPA identified four areas where 

incremental burdens and costs may be 

anticipated: (1) One-time burden and 

costs associated with state and tribal 

rulemaking activities because states and 

tribes may need to adopt new or revised 

provisions into their WQS, (2) annual 

costs associated with designating uses 

because identifying the highest 

attainable use when performing a UAA 

may require additional labor hours, (3) 

annual costs associated with 

antidegradation implementation 

including reviewing a greater number 

and more complex antidegradation 

requests, and (4) annual costs associated 

with additional development and 

documentation of variance requests. In 

addition to the proposed requirements 

included in this proposal, the EPA is 

considering and requesting comment on 

whether the EPA should include a 

requirement that antidegradation 

implementation methods be formally 

adopted as WQS and thus subject to the 

EPA’s review and approval or 

disapproval. Incremental burden and 

costs were estimated for all 50 states, 

the District of Columbia, 5 territories, 

and the 39 Indian tribes authorized to 

administer a WQS program with WQS 

approved by the EPA. 

Estimates of the incremental 

administrative burden and costs to state 

and tribal governments associated with 

this proposal without the requirement to 

adopt antidegradation implementation 

methods as WQS are summarized in the 

following table: 

SUMMARY OF INCREMENTAL ADMINISTRATIVE BURDEN AND COSTS TO STATE AND TRIBAL GOVERNMENTS ASSOCIATED

WITH THIS PROPOSAL WITHOUT THE REQUIREMENT TO ADOPT ANTIDEGRADATION IMPLEMENTATION METHODS AS WQS 

Provision 

One-time Recurring 

Burden (hours) Cost (2013$ 

millions) 

Annualized cost 

(2013$ millions/ 

year) 1

Burden 

(hours/year) 

Cost (2013$ 

millions/year) 

Rulemaking Activities ............................. 9,500–47,500 $0.46–$2.28 $0.03–$0.15 — — 

Designated Uses .................................... — — — 240–1,200 $0.01–$0.06 

Antidegradation 2 .................................... — — — 97,070–145,605 $4.61–$7.04 

Variances ............................................... — — — 4,620–5,310 $0.22–$0.26 

National Total .................................. 9,500–47,500 $0.46–$2.28 $0.03–$0.15 101,930–152,115 $4.84–$7.36 

‘—’ = not applicable. 

1Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 

years for comparative purposes. 2 Includes annual costs associated with reviewing a greater number and more complex antidegradation requests. 

Estimates of the incremental 

administrative burden and costs to the 

EPA associated with this proposal 

without the requirement to adopt 

antidegradation implementation 

methods as WQS are summarized in the 

following table: 


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SUMMARY OF POTENTIAL INCREMENTAL ADMINISTRATIVE BURDEN AND COSTS TO THE EPA ASSOCIATED WITH THIS

PROPOSAL WITHOUT THE REQUIREMENT TO ADOPT ANTIDEGRADATION IMPLEMENTATION METHODS AS WQS 

One-time Recurring 

Costs to states 

and tribes 

(2013$ million) 

Costs to the 

agency 1 (2013$ 

million) 

Annualized cost 

to the agency 2

(2013$ million 

per year) 

Burden Costs to states 

and tribes 

(2013$ million 

per year) 

Costs to the 

agency 1 (2013$ 

million per year) 

Burden 

Hours 3 FTEs 4 Hours per year 3 FTEs per year 4

$0.46–$2.28 $0.09–$0.46 $0.01–$0.03 1,200–6,040 0.58–2.9 $4.84–$7.36 $0.97–$1.47 12,810–19,470 6.16–9.36 

1Assuming that the incremental costs to the EPA are equal to 20% of the costs to states and tribes. 

2Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for comparative 

purposes. 3Total costs to the Agency divided by hourly wage rate (including overhead and benefits) of $75.55 per hour. 

4Burden hours to the Agency divided by hours worked by full-time equivalent (FTE) employees per year (2,080 hours per year). 

A summary of the combined 

estimated costs to all potentially affect 

states, tribes, and the EPA without the 

requirement to adopt antidegradation 

implementation methods as WQS are 

summarized in the following table: 

SUMMARY OF POTENTIAL INCREMENTAL ADMINISTRATIVE BURDENS AND COSTS ASSOCIATED WITH THE PROPOSED RULE

TO STATES, TRIBES, AND THE EPA WITHOUT THE REQUIREMENT TO ADOPT ANTIDEGRADATION IMPLEMENTATION

METHODS AS WQS 

Entities 

One-time Recurring 

Burden (hours) Cost (2013$ 

millions) 

Annualized cost 1

(2013$ million/ 

year) 

Burden 

(hours/year) 

Cost (2013 

$millions/year) 

States and tribes .................................... 9,500–47,500 $0.46–$2.28 $0.03–$0.15 101,930–152,115 $4.84–$7.36 

Agency ................................................... 1,200–6,040 $0.09–$0.46 $0.01–$0.03 12,810–19,470 $0.97–$1.47 

Total ................................................ 10,700–53,540 $0.55–$2.74 $0.04–$0.18 114,740–171,585 $5.81–$8.83 

1Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 

years for comparative purposes. 

To estimate the total annual cost of 

this proposal without the requirement to 

adopt antidegradation implementation 

methods as WQS which include both 

one-time costs and recurring costs, the 

EPA annualized the one-time costs over 

a period of 20 years. Using a 20-year 

annualization period and a discount rate 

of three percent, total annual costs for 

this proposal without the requirement to 

adopt antidegradation implementation 

methods as WQS are estimated to range 

from $5.84 million ($0.04 million + 

$5.81 million) to $9.01 million ($0.18 

million + $8.83 million) per year. 

In addition to the proposed 

requirements included in this proposal, 

the EPA is considering and requesting 

comment on whether the EPA should 

include a requirement that 

antidegradation implementation 

methods be formally adopted as WQS 

and thus subject to the EPA’s review 

and approval or disapproval. This 

additional requirement would require 

affected entities to develop or revise 

antidegradation implementation 

methods, and adopt the implementation 

methods in WQS, resulting in one-time 

(nonrecurring) burden and costs. 

Estimates of the incremental 

administrative burden and costs to state 

and tribal governments associated with 

this proposal including the requirement 

to adopt antidegradation 

implementation methods into WQS are 

summarized in the following table: 

SUMMARY OF INCREMENTAL ADMINISTRATIVE BURDEN AND COSTS TO STATE AND TRIBAL GOVERNMENTS ASSOCIATED

WITH THIS PROPOSAL WITH THE REQUIREMENT TO ADOPT ANTIDEGRADATION IMPLEMENTATION METHODS AS WQS 

Provision 

One-time Recurring 

Burden (hours) Cost (2013$ 

millions) 

Annualized cost 1

(2013$ millions/ 

year) 

Burden 

(hours/year) 

Cost (2013$ 

millions/year) 

Rulemaking Activities ............................. 9,500–47,500 $0.46–$2.28 $0.03–$0.15 — — 

Designated Uses .................................... — — — 240–1,200 $0.01–$0.06 

Antidegradation ...................................... 33,600–67,200 1.61–3.23 0.11–0.22 97,070–145,605 4.61–7.04 

Variances ............................................... — — — 4,620–5,310 0.22–0.26 

National Total .................................. 43,100–114,700 2.07–5.51 0.14–0.37 101,930–152,115 4.84–7.36 

‘—’ = not applicable. 

1Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 

years for comparative purposes. 

Estimates of the incremental 

administrative burden and costs to the 

EPA associated with this proposal 

including the requirement to adopt 

antidegradation implementation 


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54540 Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 / Proposed Rules 

methods into WQS are summarized in 

the following table: 

SUMMARY OF POTENTIAL INCREMENTAL ADMINISTRATIVE BURDEN AND COSTS TO THE EPA ASSOCIATED WITH THIS

PROPOSAL WITH THE REQUIREMENT TO ADOPT ANTIDEGRADATION IMPLEMENTATION METHODS AS WQS 

One-time Recurring 

Costs to states 

and tribes 

(2013$ million) 

Costs to the 

agency 1 (2013$ 

million) 

Annualized cost 

to the agency 2

(2013$ million 

per year) 

Burden Costs to states 

and tribes 

(2013$ million 

per year) 

Costs to the 

agency 1 (2013$ 

million per year) 

Burden 

Hours 3 FTEs 4 Hours per year 3 FTEs per year 4

$2.07–$5.51 $0.41–$1.10 $0.03–$0.07 5,480–14,570 2.63–7.01 $4.84–$7.36 $0.97–$1.47 12,810–19,470 6.16–9.36 

1Assuming that the incremental costs to the EPA are equal to 20% of the costs to states and tribes. 

2Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for comparative 

purposes. 3Total costs to the Agency divided by hourly wage rate (including overhead and benefits) of $75.55 per hour. 

4Burden hours to the Agency divided by hours worked by full-time equivalent (FTE) employees per year (2,080 hours per year). 

A summary of the combined 

estimated costs of this proposal to all 

potentially affect states, tribes, and the 

EPA including the requirement to adopt 

antidegradation implementation 

methods into WQS are summarized in 

the following table. 

SUMMARY OF POTENTIAL INCREMENTAL ADMINISTRATIVE BURDENS AND COSTS ASSOCIATED WITH THE PROPOSED RULE

TO STATES, TRIBES, AND THE EPA WITH THE REQUIREMENT TO ADOPT ANTIDEGRADATION IMPLEMENTATION METHODS AS WQS 

Entities 

One-time Recurring 

Burden 

(hours) 

Cost 

(2013$ millions) 

Annualized cost 1

(2013$ millions/

year) 

Burden 

(hours/year) 

Cost 

(2013 $millions/

year) 

States and tribes .................................... 43,100–114,700 $2.07–$5.51 $0.14–$0.37 101,930–152,115 $4.84–$7.36 

Agency ................................................... 5,480–14,570 $0.41–$1.10 $0.03–$0.07 12,810–19,470 $0.97–$1.47 

Total ................................................ 48,580–129,270 $2.48–$6.61 $0.17–$0.44 114,740–171,585 $5.81–$8.83 

1Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 

years for comparative purposes. 

To estimate the total annual cost of 

this proposal including the requirement 

to adopt antidegradation 

implementation methods as WQS which 

include both one-time costs and 

recurring costs, the EPA annualized the 

one-time costs over a period of 20 years. 

Using a 20-year annualization period 

and a discount rate of three percent, 

total annual costs for this proposal with 

the requirement to adopt 

antidegradation implementation 

methods as WQS are estimated to range 

from $5.98 million ($0.17 million + 

$5.81 million) to $9.27 million ($0.44 

million + $8.83 million) per year. 

In addition to estimating potential 

burden and costs, the EPA also 

evaluated the potential benefits 

associated with this proposal. States, 

tribes, stakeholders, and the public will 

benefit from the proposed clarifications 

of the WQS regulations by ensuring 

better utilization of available WQS tools 

that allow states and tribes the 

flexibility to implement their WQS in an 

efficient manner while providing 

transparency and open public 

participation. Although associated with 

potential administrative burden and 

costs in some areas, this proposal has 

the potential to partially offset these 

costs by reducing regulatory uncertainty 

and consequently increasing overall 

program efficiency. Furthermore, more 

efficient and effective implementation 

of state and tribal WQS has the potential 

to provide a variety of economic 

benefits associated with cleaner water 

including the availability of clean, safe, 

and affordable drinking water, 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 proposal 

include the protection and improvement 

of public health and greater recreational 

opportunities. The EPA acknowledges 

that achievement of any benefits 

associated with cleaner water would 

involve additional control measures, 

and thus costs to regulated entities and 

non-point sources, that have not been 

included in the economic analyses for 

this proposed rule. The EPA has not 

attempted to quantify either the costs of 

such control measures that might 

ultimately be required as a result of this 

rule, or the benefits they would provide. 

Complete details on how the EPA 

evaluated burden, costs, and benefits are 

documented in Economic Analysis for 

the Water Quality Standards Regulatory 

Clarifications (Proposed Rule) included 

in the docket for this proposal. 

The EPA invites comments on its 

economic analysis. Specifically, the 

EPA invites comments on the accuracy 

of the burden and costs estimates 

presented in this proposal, and any 

actual state or tribal data that may help 

to refine these estimates. This proposal 

does not establish any requirements 

directly applicable to regulated point 

sources or nonpoint sources of 

pollution, although the EPA recognizes 

that these sources could potentially 

incur costs as a result of changes to 

WQS adopted by states and tribes as a 

result of this rule (states and tribes 

could also adopt new or revised WQS 

independent of this proposed rule). 

However, unlike some other EPA WQS 

rules for which an economic analysis 

was prepared, this proposal does not 

lend itself to identification of readily 

predictable outcomes regarding changes 

to state water quality standards that 

might result. Likewise, the EPA could 


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not predict requirements that could 

ultimately be imposed on NPDES 

permittees and nonpoint sources. Thus, 

the EPA has not analyzed potential costs 

or cost savings associated with any 

consequences of revised state or tribal 

WQS. Nonetheless, the EPA is 

interested in the potential implications 

of this proposal for regulated entities 

and non-point sources and on whether 

and how it should incorporate such 

costs in its economic analysis of the 

rule. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

Under Executive Order (E.O.) 12866 

(58 FR 51735, October 4, 1993), this 

action is a ‘‘significant regulatory 

action.’’ Accordingly, the EPA 

submitted this action to the Office of 

Management and Budget (OMB) for 

review under E.O.s 12866 and 13563 (76 

FR 3821, January 21, 2011) and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. 

In addition, the EPA prepared an 

analysis of the potential costs and 

benefits associated with this action. 

This analysis is contained in ‘‘Economic 

Analysis for the Proposed Revisions to 

Water Quality Standards Regulatory 

Revisions.’’ A copy of the analysis is 

available in the docket for this action 

and the analysis is briefly summarized 

in Section V of the preamble. 

B. Paperwork Reduction Act 

The information collection 

requirements in this proposed rule have 

been submitted for approval to the 

Office of Management and Budget 

(OMB) under the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. The 

Information Collection Request (ICR) 

document prepared by the EPA has been 

assigned EPA ICR number 2449.01. 

The EPA is proposing the WQS 

Regulatory Clarifications Rule to 

improve the regulation’s effectiveness in 

helping restore and maintain the 

chemical, physical, and biological 

integrity of the nation’s waters. The core 

of the current regulation has been in 

place since 1983; since then, a number 

of issues have been raised by 

stakeholders or identified by the EPA in 

the implementation process that will 

benefit from clarification and greater 

specificity. The proposed rule addresses 

the following key program areas: (1) 

Administrator’s determinations that 

new or revised WQS are necessary, (2) 

designated uses, (3) triennial reviews, 

(4) antidegradation, (5) variances to 

WQS, and (5) compliance schedule 

authorizing provisions. In addition to 

the proposed requirements included in 

this proposal, the EPA is considering 

and requesting comment on whether the 

EPA should require that antidegradation 

implementation methods be adopted as 

WQS and thus subject to the EPA’s 

review and approval or disapproval. 

This mandatory information collection 

will ensure the EPA has the needed 

information to review standards and 

make approvals or disapprovals in 

accordance with provisions in the 

proposed Water Quality Standards 

Regulatory Clarifications Rule. Under 

the Clean Water Act (CWA), the EPA is 

responsible for reviewing and approving 

or disapproving new and revised WQS 

submitted by states and tribes. The EPA 

will use the information required by this 

proposed rule to carry out its 

responsibility under the CWA. In 

reviewing state and tribal standards 

submissions, the EPA considers whether 

submissions are consistent with the 

WQS regulation at part 131. The WQS 

Regulatory Clarifications Rule will add 

new requirements to part 131. If the 

information collection activities in the 

WQS Regulatory Clarifications Rule are 

not carried out, specific improvements 

in the implementation of the WQS 

program will not take place. In some 

cases, implementation and control steps 

such as total maximum daily loads and 

National Pollutant Discharge 

Elimination System permits may not be 

as protective as necessary under the 

CWA. 

Burden is defined at 5 CFR 1320.3(b). 

The EPA expects that the proposed rule 

will lead to incremental burden hours 

and labor costs in the following areas: 

rulemaking activities, designated uses, 

antidegradation, and variances to WQS. 

The EPA estimates the cost of labor from 

data on state government hourly wage 

rates (data are not available for tribes). 

The labor categories chosen as 

applicable to WQS regulatory revision 

efforts are Environmental Scientist, 

Department Manager, Environmental 

Engineer, and Economist. Given the 

2012 labor rates for these categories, 

inflated to March 2013 dollars using the 

Bureau of Labor Statistics (BLS) 

Employment Cost Index for professional 

and related state and local government 

workers (116.0/115.0 = 1.01), and 

accounting for benefits using the BLS 

Employer Cost for Employee 

Compensation for state and local 

professional government workers 

(32.7% of total compensation is 

attributable to benefits), the EPA 

calculated an average hourly wage rate 

of $48. 

The EPA estimates the incremental 

number of labor hours using historical 

information and data, and the historical 

knowledge and best professional 

judgment of EPA personnel with 

experience administering the WQS 

program. A total of 95 governmental 

entities are potentially affected by the 

proposed rule: 50 states, the District of 

Columbia, 6 territories, and 39 tribes 

that have authority to administer WQS 

programs. Rulemaking activities result 

in one-time (nonrecurring) burden and 

costs. Note that these one-time activities 

will occur over an initial three-year 

period. The proposed rule will also 

require affected entities to undertake the 

following activities each year: conduct 

use attainability analyses to determine 

the highest attainable use, review 

alternative analyses in antidegradation 

requests, review additional 

antidegradation requests for high quality 

waters, comply with new submission 

requirements for variances, and review 

additional variance renewal 

applications. Given the EPA’s estimates 

of the number and frequency of labor 

hours associated with each of the 

proposed provisions, the total one-time 

incremental burden (during each of the 

first three years) associated with the 

proposed rule without requiring 

adoption of antidegradation 

implementation methods as WQS ranges 

from 9,500 hours to 47,500 hours, while 

the annual incremental burden ranges 

from 101,930 hours to 152,115 hours. 

Given an hourly wage rate of $48, these 

labor hours lead to total one-time costs 

(incurred during each of the first three 

years) of approximately $0.46 million to 

$2.28 million and annual costs of $4.84 

million to $7.36 million. These 

incremental burden and costs are 

associated with a total of 32 one-time 

responses per year during the initial 

three-year period for rulemaking 

activities. In addition, the number of 

annual responses is 1,405 responses. 

In addition to the proposed 

requirements included in this proposal, 

the EPA is considering and requesting 

comment on whether the EPA should 

include a requirement that 

antidegradation implementation 

methods be formally adopted as WQS 

and thus subject to the EPA’s review 

and approval or disapproval. This 

additional requirement would require 

affected entities to develop or revise 

antidegradation implementation 

methods, and adopt antidegradation 

implementation methods as WQS 

resulting in one-time (nonrecurring) 

burden and costs. Including this 


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additional requirement, the total onetime incremental burden (during each of 

the first three years) associated with the 

proposed rule ranges from 43,100 hours 

to 114,700 hours, while the annual 

incremental burden remains the same 

ranging from 101,930 hours to 152,115 

hours. Given an hourly wage rate of $48, 

these labor hours lead to total one-time 

costs (incurred during each of the first 

three years) of approximately $2.07 to 

$5.51 million and annual costs of $4.84 

to $7.36 million. These incremental 

burden and costs are associated with a 

total of 32 one-time responses per year 

during the initial three-year period for 

rulemaking activities. In addition, the 

number of annual responses is 1,405 

responses. 

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. 

To comment on the Agency’s need for 

this information, the accuracy of the 

provided burden estimates, and any 

suggested methods for minimizing 

respondent burden, the EPA has 

established a public docket for this rule, 

which includes this ICR, under Docket 

ID number EPA–HQ–OW–2010–0606. 

Submit any comments related to the ICR 

to the EPA and OMB. See ADDRESSES 

section at the beginning of this notice 

for where to submit comments to the 

EPA. Send comments to OMB at the 

Office of Information and Regulatory 

Affairs, Office of Management and 

Budget, 725 17th Street NW., 

Washington, DC 20503, Attention: Desk 

Office for EPA. Since OMB is required 

to make a decision concerning the ICR 

between 30 and 60 days after September 

4, 2013, a comment to OMB is best 

assured of having its full effect if OMB 

receives it by October 4, 2013. The final 

rule will respond to any OMB or public 

comments on the information collection 

requirements contained in this proposal. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, small 

entity is defined as (1) a small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this proposed rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

This proposed rule will not impose any 

requirements on small entities. 

State and tribal governments 

responsible for administering or 

overseeing water quality programs may 

be directly affected by this rulemaking, 

as states and 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. The EPA continues to be 

interested in the potential impacts of the 

proposed rule on small entities and 

welcomes comments on issues related to 

such impacts. 

D. Unfunded Mandates Reform Act 

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 for the private sector in any one year. 

The EPA estimates total annual costs to 

states and tribes to range from 

$4,840,000 to $7,360,000. Thus, this 

rule is not subject to the requirements 

of sections 202 or 205 of the Unfunded 

Mandates Reform Act of 1995 (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) 

Under section 6(b) of E.O. 13132, the 

EPA may not issue an action that has 

federalism implications, that imposes 

substantial direct compliance costs, and 

that is not required by statute, unless 

the Federal government provides the 

funds necessary to pay the direct 

compliance costs incurred by state and 

local governments, or the EPA consults 

with state and local officials early in the 

process of developing the proposed 

action. In addition, under section 6(c) of 

E.O. 13132, the EPA may not issue an 

action that has federalism implications 

and that preempts state law, unless the 

Agency consults with state and local 

officials early in the process of 

developing the proposed action. 

The EPA has concluded that the 

action does not have federalism 

implications. The EPA is proposing 

changes to provide clarity and 

transparency in the WQS regulation that 

may require state and local officials to 

reevaluate or revise their standards. 

However, it will not impose substantial 

direct compliance costs on state or local 

governments, nor will it preempt state 

law. Thus, the requirements of sections 

6(b) and 6(c) of the E.O. do not apply 

to this action. 

Consistent with the EPA’s policy, the 

EPA nonetheless consulted with state 

and local officials early in the process 

of developing the proposed action to 

allow them to provide meaningful and 

timely input into its development. In 

August and September 2010, the EPA 

consulted with representatives from 

states and intergovernmental 

associations to hear their views on the 

proposed regulatory changes. 

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 of 

antidegradation and designated uses. 

The EPA’s view is that such changes 

would generally codify the EPA’s 

current practice and provide clear 

expectations to state and local 

regulators. Participants urged the EPA to 

ensure that states with satisfactory 

regulations in these areas are not unduly 

burdened by the proposed changes. 

Keeping with the spirit of E.O. 13132, 

and consistent with the EPA’s policy to 

promote communications between the 

EPA and state and local governments, 

the EPA specifically solicits comment 

on this proposed action from state and 

local officials. In particular, the EPA 

requests comment on any provision in 

this proposed rule that state officials 

believe would impose an undue burden 

on state water quality standards 

programs. 

F. Executive Order 13175 

Subject to the E.O. 13175 (65 FR 

67249, November 9, 2000), the EPA may 

not issue a regulation that has tribal 

implications, that imposes substantial 

direct compliance costs, and that is not 

required by statute, unless the federal 

government provides the funds 

necessary to pay the direct compliance 

costs incurred by tribal governments, or 

the EPA consults with tribal officials 

early in the process of developing the 

proposed regulation and develops a 

tribal summary impact statement. 


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The EPA has concluded that this 

action may have tribal implications. 

However, it will neither impose 

substantial direct compliance costs on 

tribal governments, nor preempt tribal 

law. To date, 48 Indian tribes have been 

approved for treatment in a manner 

similar to a state (TAS) for CWA 

sections 303 and 401. Of the 48 tribes, 

39 have federally approved WQS in 

their respective jurisdictions. All of 

these authorized tribes are subject to 

this proposed rule. However, this rule 

might impact other tribes as well 

because federal, state or authorized 

tribal standards may apply to waters 

adjacent to the tribal waters. The EPA 

consulted with tribal officials early in 

the process of developing this regulation 

to allow them to provide meaningful 

and timely input into its development. 

In August 2010, the EPA held a tribesonly consultation session to hear their 

views and answer questions of all 

interested tribes on the targeted areas 

the EPA is considering 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. The EPA has 

considered the burden to states and 

tribes in developing this proposal and, 

when possible, has chosen to provide 

sufficient direction and flexibility to 

allow tribes to spend resources 

addressing other aspects of their WQS 

programs. The EPA also intends to 

release updated guidance in a new 

edition of the WQS Handbook. The EPA 

specifically solicits additional comment 

on this proposed action from tribal 

officials. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to E.O. 

13045 (62 FR 19885, April 23, 1997) 

because it is not economically 

significant as defined in E.O. 12866, and 

because the Agency does not believe the 

environmental health 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’’ as defined in E.O. 13211 

(66 FR 28355, May 22, 2001), 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 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (NTTAA), Pub. L. 104–113, 

12(d) (15 U.S.C. 272 note) directs the 

EPA to use voluntary consensus 

standards in its regulatory activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impractical. Voluntary consensus 

standards are technical standards (e.g., 

materials specifications, test methods, 

sampling procedures, and business 

practices) that are developed or adopted 

by voluntary consensus standards 

bodies. NTTAA directs the EPA to 

provide Congress, through OMB, 

explanations when the Agency decides 

not to use available and applicable 

voluntary consensus standards. 

This proposed rulemaking does not 

involve technical standards. Therefore, 

the EPA is not considering the use of 

any voluntary consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

E.O. 12898 (59 FR 7629, February 

16,1994) establishes federal executive 

policy on environmental justice. Its 

main provision directs federal agencies, 

to the greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. 

The EPA has determined that this 

proposed 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 

proposed rulemaking does not directly 

establish water quality standards for a 

state or tribe. In addition, this proposed 

rulemaking is national in scope, and 

therefore is not specific to a particular 

geographic area(s). 

List of Subjects in 40 CFR Part 131 

Environmental protection, Indians— 

lands, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Water pollution control. 

Dated: August 20, 2013. 

Gina McCarthy, 

Administrator. 

For the reasons stated in the 

preamble, the EPA proposes to amend 

40 CFR part 131 as follows: 

PART 131—WATER QUALITY 

STANDARDS 

■ 1. The authority citation for part 131 

continues to read as follows: 

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

Subpart A—General Provisions 

■ 2. Amend § 131.2 by revising the first 

sentence to read as follows: 

§ 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. * * * 

■ 3. Amend § 131.3 by revising 

paragraphs (h) and (j), and adding 

paragraph (m) to read as follows: 

§ 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 

aquatic life, wildlife, and/or recreation 

use that is both closest to the uses 

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

and attainable, as determined using best 

available data and information through 

a use attainability analysis defined in 

§ 131.3(g). 

■ 4. Amend § 131.5 by: 

■ a. Revising paragraphs (a)(1) and 

(a)(2); 

■ b. Redesignating paragraphs (a)(3) 

through (a)(5) as (a)(4) through (a)(6) 

and adding a new paragraph (a)(3); and 

■ c. Revising paragraph (b). 

The revisions and additions read as 

follows: 


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§ 131.5 EPA Authority. 

(a) * * * 

(1) Whether the State has adopted 

designated 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 based on sound scientific rationale; 

(3) Whether the State has adopted an 

antidegradation policy consistent with 

§ 131.12(a), and if the State has chosen 

to adopt implementation methods, 

whether those implementation methods 

are consistent with § 131.12; 

* * * * * 

(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)(6) 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)(6) 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 

■ 5. Amend § 131.10 by revising 

paragraph (g) introductory text and 

paragraphs (j), and (k) to read as follows: 

§ 131.10 Designation of uses. 

* * * * * 

(g) Pursuant to § 131.10(j), States may 

designate or remove a use or a subcategory of a use as long as the action 

does not remove protection for an 

existing use, and the State can 

demonstrate that attaining the use is not 

feasible because of one of the six factors 

in this paragraph. If a State adopts new 

or revised water quality standards based 

on a use attainability analysis, the State 

shall also adopt the highest attainable 

use and the criteria to protect that use. 

To meet this requirement, States may, at 

their discretion, utilize their current use 

categories or subcategories, develop new 

use categories or subcategories, or adopt 

another use which may include a 

location-specific use. 

* * * * * 

(j) A State must conduct a use 

attainability analysis as described in 

§ 131.3(g), and § 131.10(g), whenever: 

(1) The State designates or has 

designated uses for a water body for the 

first time 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 

which requires criteria less stringent 

than previously applicable. 

(k) A State is not required to conduct 

a use attainability analysis whenever: 

(1) The State designates or has 

designated uses for a water body for the 

first time that include the uses specified 

in section 101(a)(2) of the Act, or 

(2) The State wishes to remove a 

designated use that is not specified in 

section 101(a)(2) of the Act, or designate 

a sub-category of a use specified in 

section 101(a)(2) of the Act which 

requires criteria at least as stringent as 

previously applicable. 

■ 6. Amend § 131.11 by revising 

paragraphs (a)(2) and (b) introductory 

text to read as follows: 

§ 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 

Quality Planning and Management 

Regulations (40 CFR part 130). 

(b) Form of criteria: In establishing 

criteria, States should: 

* * * * * 

■ 7. Amend § 131.12 by revising the 

section heading and paragraphs (a) 

introductory text and (a)(2), and adding 

paragraph (b) to read as follows: 

§ 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 

exceed 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 ensure 

water quality adequate to protect 

existing uses fully. Further, the state 

shall ensure 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. 

* * * * * 

(b) The State shall develop and make 

available to the public statewide 

methods for implementing the 

antidegradation policy adopted 

pursuant to paragraph (a) of this section. 

A State’s antidegradation 

implementation methods shall be 

designed to achieve antidegradation 

protection consistent with paragraph (a) 

of this section. Such methods must 

ensure that: 

(1) High quality waters are identified 

on a parameter-by-parameter basis or on 

a water body-by-water body basis at the 

State’s discretion, but must not exclude 

any water body from high quality water 

protection solely because not all of the 

uses specified in CWA section 101(a)(2) 

are attained; and 

(2) The State will only make a finding 

that lowering high water quality is 

necessary, pursuant to paragraph (a)(2) 

of this section, after conducting an 

alternatives analysis that evaluates a 

range of non-degrading and minimally 

degrading practicable alternatives that 

have the potential to prevent or 

minimize the degradation associated 

with the proposed activity. If the State 

can identify any-practicable 

alternatives, the State must choose one 

of those alternatives to implement when 

authorizing a lowering of high water 

quality. 

■ 8. Add § 131.14 to subpart B to read 

as follows: 

§ 131.14 Water quality standards 

variances. 

States may, at their discretion, grant 

variances subject to the provisions of 

this section and public participation 

requirements at § 131.20(b). A water 

quality standards variance (WQS 


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variance) is a time-limited designated 

use and criterion for a specified 

pollutant(s), permittee(s), and/or water 

body or waterbody segment(s) that 

reflect the highest attainable condition 

during the specified time period. WQS 

variances are water quality standards 

subject to EPA review and approval or 

disapproval and must be consistent with 

this section. Any such WQS variances 

adopted after [effective date of the final 

rule] must be consistent with this 

regulatory section. 

(a) Applicability: 

(1) All applicable WQS not 

specifically addressed by the WQS 

variance remain applicable. 

(2)(i) Where a state adopts a WQS 

variance, the State regulations must 

continue to reflect the underlying 

designated use and criterion unless the 

State adopts and EPA approves a 

revision to the underlying designated 

use and criterion consistent with 

§ 131.10 or § 131.11. 

(ii) The interim requirements 

specified in the WQS variance are in 

effect during the term of the WQS 

variance and apply for CWA section 402 

permitting purposes and in issuing 

certifications under section 401 of the 

Act for the permittee(s), pollutant(s), 

and/or water body or waterbody 

segment(s) covered by the WQS 

variance. For these limited purposes, 

the interim requirements will be the 

standards applicable for purposes of the 

CWA under 40 CFR 131.21(c)–(e). 

(3) A WQS variance shall not be 

granted if the designated use and 

criterion addressed by the proposed 

WQS variance can be achieved by 

implementing technology-based effluent 

limits required under sections 301(b) 

and 306 of the Act. 

(b) Submission Requirements: 

(1) A WQS variance must specify the 

following: 

(i) Identifying information: A WQS 

variance must identify the pollutant(s), 

permittee(s), and/or the water body or 

waterbody segment(s) to which the 

WQS variance applies. 

(ii) WQS that apply during a variance 

for CWA section 402 permitting 

purposes and in issuing certifications 

under section 401 of the Act: A WQS 

variance must specify: 

(A) The highest attainable interim use 

and interim numeric criterion, or 

(B) An interim numeric effluent 

condition that reflects the highest 

attainable condition for a specific 

permittee(s) during the term of the 

variance. Neither (A) nor (B) of this 

paragraph shall result in any lowering of 

the currently attained water quality 

unless a time-limited lowering of water 

quality is necessary during the term of 

a variance for restoration activities, 

consistent with paragraph (b)(2)(ii) of 

this section. 

(iii) Date the WQS variance will 

expire: States must include an 

expiration date for all WQS variances, 

consistent with paragraph (b)(2) of this 

section. WQS variances must be as short 

as possible but expire no later than 10 

years after state adoption. 

(2) The State must submit a 

demonstration justifying the need for a 

WQS variance. 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 submit a demonstration 

that attaining the designated use and 

criterion is not feasible during the term 

of the WQS variance because: 

(i) One of the factors listed in 

§ 131.10(g) applies, or 

(ii) Actions necessary to facilitate 

restoration through dam removal or 

other significant wetland or stream 

reconfiguration activities preclude 

attainment of the designated use and 

criterion while the actions are being 

implemented. 

(3) For a waterbody variance, the state 

must identify and document any costeffective and reasonable best 

management practices for nonpoint 

source controls related to the 

pollutant(s) and location(s) specified in 

the WQS variance that could be 

implemented to make progress towards 

attaining the designated use and 

criterion. A State must provide public 

notice and comment for any such 

documentation. 

(c) Implementing variances in NPDES 

permits: Consistent with paragraph 

(a)(2)(ii) of this section, a WQS variance 

serves as the basis of a water qualitybased effluent limit included in a 

NPDES permit for the period the 

variance is in effect. Any limitations 

required to implement the WQS 

variance shall be included as conditions 

of the NPDES permit for the permittee(s) 

subject to the WQS variance. 

(d) WQS variance renewals: EPA may 

approve a WQS variance renewal if the 

State meets the requirements of this 

section and provides documentation of 

the actions taken to meet the 

requirements of the previous WQS 

variance. For a waterbody WQS 

variance renewal, the state must also 

provide documentation of whether and 

to what extent BMPs have been 

implemented to address the pollutant(s) 

subject to the WQS variance and the 

water quality progress achieved during 

the WQS variance period. Renewal of a 

WQS variance may be disapproved if 

the applicant did not comply with the 

conditions of the original WQS 

variance, or otherwise does not meet the 

requirements of this section. 

■ 9. Add § 131.15 to subpart B to read 

as follows: 

§ 131.15 Compliance schedule authorizing 

provisions. 

A State may, at its discretion and 

consistent with state law, authorize 

schedules of compliance for water 

quality-based effluent limits (WQBELs) 

in NPDES permits by including a 

compliance schedule authorizing 

provision in its water quality standards 

or implementing regulations. Any such 

provision is a water quality standard 

subject to EPA review and approval and 

must be consistent with sections 502(17) 

and 301(b)(1)(C) of the Act. Individual 

compliance schedules issued pursuant 

to such authorizing provisions are not 

themselves water quality standards. 

Individual compliance schedules must 

be consistent with CWA section 502(17), 

the state’s EPA-approved compliance 

schedule authorizing provision, and the 

requirements of §§ 122.2 and 122.47. 

Subpart C—Procedures for Review and 

Revision of Water Quality Standards 

■ 10. Amend § 131.20 by revising 

paragraphs (a) and (b) to read as follows: 

§ 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 and, as appropriate, 

modifying and adopting standards; in 

particular, any water body segment with 

water quality standards 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 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. Similarly, a 

State shall re-examine its water quality 

criteria to determine if any criteria 

should be revised in light of any new or 

updated CWA section 304(a) criteria 

recommendations to assure that 

designated uses continue to be 

protected. Procedures States establish 

for identifying and reviewing water 

bodies for review should be 

incorporated into their Continuing 

Planning Process. 

(b) Public Participation. The State 

shall hold public hearings for the 

purpose of reviewing or 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 


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standards revision and supporting 

analyses shall be made available to the 

public prior to the hearing. 

* * * * * 

■ 11. Amend § 131.22 by revising 

paragraph (b) to read as follows: 

§ 131.22 EPA promulgation of water 

quality standards. 

* * * * * 

(b) The Administrator may also 

propose and promulgate a regulation, 

applicable to one or more States, setting 

forth a new or revised standard upon 

determining such a standard is 

necessary to meet the requirements of 

the Act. To constitute an 

Administrator’s determination, 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 

■ 12. Amend § 131.34 by revising 

paragraph (c) to read as follows: 

§ 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 

§ 131.14 are met. 

■ 13. Amend § 131.40 by revising 

paragraph (c) to read as follows: 

§ 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 

§ 131.14 are met. 

[FR Doc. 2013–21140 Filed 9–3–13; 8:45 am] 

BILLING CODE 6560–50–P 


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