### EPA Publication 

# No 820F12017 1 

# WHAT IS 

### A

# NEW OR REVISED 

## WATER QUALITY 

## STANDARD UNDER 

# CWA 303

# C

# 3 FREQUENTLY 

## ASKED QUESTIONS OCTOBER

## 2012
DISCLAIMER
These Frequently Asked Questions 

## FAQs do not impose legally binding requirements 

### on 

## EPA states orthe regulated 

### communitynor 

### do they confer legal rights or impose legal obligations 

### upon any 

## member ofthe public The 

## CWA provisions 

### and EPA regulations described in this 

### document contain legally binding requirements These 

### FAQsdo not constitute a regulation nor 

### do they 

### change or substitute forany 

## 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 

## maybe 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 ordisapprove 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 fortreatment in the same manner as a state 

## TAS under section 

### 518

# e ofthe Clean Water Act 

## CWA for purposes of 

## CWA section 

### 303

## c 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 303

# e

### EPA Publication 

# No 820F12017 2 

# 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 ofwater quality standards see section 

## 303

# d4

# B

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 

## 303

# c 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 131.6

# d 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 ofAppeals for the Eleventh Circuit’s 

### 2004 decision Florida Public Interest Research Group Citizen

### Lobby Inc et 

### al

# v EPA 386 

# F3d 1070 11th Cir

## 2004 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 ordisapprove 

### 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 ofwater 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 fourquestions 

## 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 ordisapprove under

## CWA section 

## 303

# c

# 3 If any ofthe 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

# c

# 3 1 Is it 

### a legally binding provision adopted or established pursuant to state or tribal 

## law This consideration stems

### from the use ofthe terms “adopt,” “law,” “regulations” 

### and “promulgate” in 

## CWA section 

## 303

# ac and from EPA's regulations at

### 40 CFR 131.3

# i which specify that

### EPA Publication 

# No 820F12017 3 

## WQS are provisions of state orfederal 

## law 3 

### EPA considers 

### documents incorporated 

### by reference into state or tribal law to 

### be legally binding provisions 

### adopted orestablished 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 forwaters 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 requirementsTherefore this consideration explicitly specifies that for

### a provision to 

### be a

# WQS

it 

### must include or address at least 

### one ofthese three core 

### components 

## AND 

# 3 Does the provision express or establish the desired condition 

# e

# g uses criteria or instream level of protection 

# e

# g antidegradation requirements for waters ofthe United States immediately or

### mandate 

## how it will 

### be expressed orestablished forsuch 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 forwaters ofthe United States it 

## may be a 

## new or revised 

## WQS that 

### EPA has the authority 

### and duty to approve ordisapprove under 

## CWA section 

## 303

# c

# 3 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 tribes

### and 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

### EPA Publication 

# No 820F12017 4 

# 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

# c

# 3 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 this

### manner to ensure public transparency as to which provisions are effective forpurposes ofthe 

# CWA EPA notes that the scope of its action in reviewing 

### and approving ordisapproving 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 priorapproval ofthe underlying 

## WQS would 

### be subject to any applicable statute of limitations and priorjudicial 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 i

# e 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 ofthe 

### NPDES and 

## 303

# dTMDL programs For

### example revisions to 

### NPDES statetribal programs are subject to 

### EPA approval 

### under 40 

# CF

# R 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 Similarly

### EPA 

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

# e

# g NPDES or

## CWA section 

## 303

# d assessment provisions If such provisions 

### do not 

### meet the four considerations 

### and therefore 

### EPA does not approve ordisapprove 

### them under Section 

## 303

# c

# 3 the status of such provisions 

### would be determined 

### under the applicable requirements of the other 

## CWA programs the provisions are intended to 

### implement