EPA Publication No 820F12017 1

WHAT IS A NEW OR REVISED WATER QUALITY STANDARD UNDER CWA 303C3

FREQUENTLY ASKED QUESTIONS

OCTOBER 2012

DISCLAIMER

These Frequently Asked Questions FAQs do not impose legally binding requirements on EPA

states or the regulated community nor do they confer legal rights or impose legal obligations upon

any member of the public The CWA provisions and EPA regulations described in this document

contain legally binding requirements These FAQs do not constitute a regulation nor do they change

or substitute for any CWA provision or EPA regulations

The general description provided here may not apply to a particular situation based upon the

circumstances Interested parties are free to raise questions and objections about the substance of

these FAQs and the appropriateness of their application to a particular situation EPA retains the

discretion to adopt approaches on a case bycase basis that differ from those described in these

FAQs where appropriate These FAQs are a living document and may be revised periodically without

public notice EPA welcomes public input on these FAQs at any time

1 Why is EPA issuing these FAQs

Determining which provisions constitute new or revised water quality standards WQS that EPA

has the authority and duty to approve or disapprove under the Clean Water Act CWA section

303 c3 has increasingly become an issue as state and tribal1 water programs are becoming more

integrated with implementation policies and processes

To date EPA has evaluated each situation on a case bycase basis These FAQs consolidate

EPA’s plain language interpretation informed by the CWA EPA’s implementing regulations at 40

CFR part 131 and relevant case law of what constitutes a new or revised WQS that the Agency has

the CWA section 303 c3 authority and duty to approve or disapprove

2 How is evaluating whether a provision is a new or revised WQS different from determining

whether a state or tribe’s new or revised WQS are approvable

There are two decisions EPA must make before approving or disapproving a state or tribe’s new

or revised WQS First EPA must determine whether the provision constitutes a new or revised WQS

that EPA has the CWA section 303 c3 authority and duty to approve or disapprove If it does EPA

must then determine whether the provision is approvable This FAQ document only addresses EPA’s

position with regard to the first decision2

1

“Tribal” and “tribes” refers to tribes authorized for treatment in the same manner as a state TAS under section

518e of the Clean Water Act CWA for purposes of CWA section 303c water quality standards WQS 2

These FAQs in no way affect EPA’s authority to approve or disapprove a state or tribe’s continuing planning

process CPP under CWA 303e

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3 What is the basis for the information in these FAQs

EPA’s understanding of what constitutes a new or revised WQS under CWA section 303 c3

derives from the CWA itself EPA’s implementing regulations and case law The CWA requires EPA

to approve or disapprove new or revised WQS and specifies that state WQS must consist of

designated uses and criteria to protect such uses In the 1987 amendments to the CWA Congress

recognized that antidegradation is a part of water quality standards see section 303 d4B

EPA’s regulation at 40 CFR 131.3 i provides that WQS are provisions of State or Federal law”

that consist of designated uses and water quality criteria EPA’s regulations at 131.5 provide

specificity as to what EPA’s review under section 303c of the Act involves at 131.6 the minimum

requirements for WQS submissions and at 131.13 that general policies states choose to include in

their WQS are subject to EPA review and approval 40 CFR 131.5 a5 131.6d and 131.12

further reinforce that antidegradation requirements are WQS

In addition case law relating to what constitutes a new or revised WQS has been established in

1 the Supreme Court’s 1994 decision in PUD No 1 of Jefferson County v Washington Dept of

Ecology 511 US700 1994 which acknowledged that antidegradation requirements are part of

WQS and 2 the US Court of Appeals for the Eleventh Circuit’s 2004 decision Florida Public

Interest Research Group Citizen Lobby Inc et al v EPA 386 F3d 1070 11th Cir2004 and

subsequent EPA action on the Florida Impaired Waters Rule IWR The Court’s decision in the

Florida IWR case established that EPA has a mandatory duty to approve or disapprove a new or

revised WQS even if the state did not submit such new or revised WQS to EPA for review Thus

EPA’s position is that its authority and duty to evaluate whether a provision is a new or revised WQS

is not dependent upon whether the provision was submitted to EPA for review In addition in its

decision following a 2004 remand in the IWR litigation EPA determined that specific water quality

criteria provisions in the IWR were new or revised WQS because they were legally binding provisions

that define change or establish magnitude duration or frequency of water quality criteria EPA’s

current practice is to consider all the salient points from the CWA regulations and case law when

evaluating whether a provision is a new or revised WQS

4 What does EPA consider when evaluating whether a specific provision constitutes a new or

revised WQS

EPA considers four questions when evaluating whether a provision constitutes a new or revised

WQS If ALL four questions are answered ”yes,” then the provision would likely constitute a new or

revised WQS that EPA has the authority and duty to approve or disapprove under CWA section

303 c3 If any of the four questions are answered “no,” then the provision would likely not be a

new or revised WQS that EPA has the authority and duty to approve or disapprove under CWA

section 303 c3

1 Is it a legally binding provision adopted or established pursuant to state or tribal law This

consideration stems from the use of the terms “adopt,” “law,” “regulations” and “promulgate”

in CWA section 303 ac and from EPA's regulations at 40 CFR 131.3i which specify that

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WQS are provisions of state or federal law 3 EPA considers documents incorporated by

reference into state or tribal law to be legally binding provisions adopted or established

pursuant to state or tribal law4

AND

2 Does the provision address designated uses water quality criteria narrative or numeric to

protect designated uses andor antidegradation requirements for waters of the United States

The CWA EPA’s implementing regulation and case law have broadly established three core

components of WQS designated uses water quality criteria and antidegradation

requirements Therefore this consideration explicitly specifies that for a provision to be a WQS

it must include or address at least one of these three core components

AND

3 Does the provision express or establish the desired condition eg uses criteria or instream

level of protection eg antidegradation requirements for waters of the United States

immediately or mandate how it will be expressed or established for such waters in the future

This consideration recognizes that if a provision meets the above two considerations and

expresses the desired condition or level of protection for waters of the United States it may be

a new or revised WQS that EPA has the authority and duty to approve or disapprove under CWA

section 303 c3 regardless of whether that expression applies immediately or will be applied

in the future EPA action on provisions that may not apply immediately will ensure that EPA is

able to provide input as early as possible in the state’s or tribe’s WQS development process

thus enabling the states tribesand EPA to carry out their functions under the CWA in the most

efficient expedient manner possible

AND

4 Does the provision establish a new WQS or revise an existing WQS While a provision may

meet the first three considerations the EPA's authority and duty to review and approve or

disapprove such provisions under section 303 c3 are limited to those WQS that are new or

revised A provision that establishes a new5 WQS or has the effect of changing an existing WQS

would meet this consideration In contrast a provision that simply implements a WQS without

revising it would not constitute a new or revised standard

5 Does EPA consider general policies under 40 CFR 131.13 to be WQS

EPA’s regulation at 40 CFR 131.13 provides that states and tribes may at their discretion

“include in their state standards policies generally affecting their application and implementation

such as mixing zones low flows and variances.” 40 CFR 131.13 also states that “Such policies are

subject to EPA review and approval.” EPA has the CWA section 303 c3 authority and duty to

approve or disapprove general policies such as mixing zones as long as those policies themselves

constitute new or revised WQS based on the four considerations above

3

These FAQs deal with what constitutes new or revised WQS adopted by states or authorized tribes It does not

discuss whether or how provisions of federal law may constitute WQS If EPA promulgates federal WQS for state

or tribal waters EPA adheres to the same four considerations in promulgating such new or revised WQS 4

A provision in a document incorporated by reference must meet all 4 considerations to be a new or revised WQS 5

A provision that EPA has never approved as a WQS would be considered “new.” It must also meet the other

three considerations to be a new or revised WQS

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6 Does EPA have the authority and duty to approve or disapprove nonsubstantive revisions to

WQS

EPA considers nonsubstantive edits to existing WQS to constitute new or revised WQS that EPA

has the authority and duty to approve or disapprove under CWA section 303 c3 While such

revisions do not substantively change the meaning or intent of the existing WQS EPA believes that it

is reasonable to treat such non substantive changes in thismanner to ensure public transparency as

to which provisions are effective for purposes of the CWA EPA notes that the scope of its action in

reviewing and approving or disapproving such nonsubstantive changes would extend only as far as

the actual nonsubstantive changes themselves In other words EPA’s action on nonsubstantive

changes to previously approved WQS would not constitute an action on the underlying previously

approved WQS Any challenge to EPA’s prior approval of the underlying WQS would be subject to

any applicable statute of limitations and prior judicial decisions

7 Does EPA have any CWA authority over provisions that do not constitute new or revised WQS

In cases where the Agency believes that an existing state or tribal WQS ie a provision that

meets the first three considerations but is not new or revised is inconsistent with the CWA or that

the existing WQS lack what is necessary to be consistent with the CWA the Administrator may

determine that a revised or new standard is necessary to meet the requirements of the CWA

under CWA section 303 c4B An Administrator's determination triggers a duty on the part of EPA

to propose and promulgate such WQS unless the state or tribe adopts and EPA approves WQS

addressing EPA’s determination

In addition the CWA and its regulations grant EPA authority over state and tribal

implementation of WQS through its oversight or implementation of the NPDES and 303dTMDL

programsFor example revisions to NPDES statetribal programs are subject to EPA approval under

40 CFR 123.62 and EPA may object to statetribal draft or proposed NPDES permitsfor point

source discharges if the limits in those permits would not achieve applicable WQS SimilarlyEPA

may add waters to a state’s or tribe’s list of water quality limited waters if the state tribe did not

assess waters in a manner consistent with the applicable WQS

State and tribal law may include provisions that do not meet the four considerations described

in these FAQs such as those guiding implementation of their CWA programs eg NPDES or CWA

section 303 d assessment provisions If such provisions do not meet the four considerations and

therefore EPA does not approve or disapprove them under Section 303 c3 the status of such

provisions would be determined under the applicable requirements of the other CWA programs the

provisions are intended to implement

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