HeinOnline -- 47 Fed. Reg. 49234 1982

49234 Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 35, 120 and 131 i 

[WH-FRL 2113-3] 

Water Quality Standards Regulation 

AGENCY: Environmental Protection 

Agency. 

ACTION: Proposed rule. 

SUMMARY: This proposed rule would 

revise and consolidate in a new Part 131 

the existing regulations now codified in 

40 CFR Parts 120 and 35 that govern the 

development, review, revision and 

approval of water quality standards 

under Section 303 of the Clean Water 

Act. 

The proposed changes reflect 

experiences gained in the program by 

both EPA and the States. The changes 

increase the flexibility of the States to: • Review and revise, as appropriate, 

water quality standards on priority 

water bodies or segments as necessary 

rather than reviewing all standards 

statewide every three years; 

• set site-specific criteria rather than 

adopt Section 304(a) criteria guidance; 

• remove or modify impaired uses 

based on analyses of the attainability bf 

the uses and on benefit-cost 

assessments, if appropriate, rather than 

maintain use designations which cannot 

be met. 

These changes will enable States to 

use water quality standards as a 

pragmatic tool in improving water 

quality where necessary to protect 

water uses. 

DATES: Written public comments should 

be submitted to the person listed 

immediately below by January 27, 1982. 

FOR FURTHER INFORMATION CONTACT: 

Mr. David K. Sabock, Chief, Criteria 

Branch, Office of Water Regulations and 

Standards, United States Environmental 

Protection Agency, 401 M Street SW., 

Washington, D.C. 20460, (202) 245-3042. 

SUPPLEMENTARY INFORMATION: 

Information in the preamble is presented 

in the following order. 

A. Introduction 

B. Proposed Changes and Clarifications 

C. State Water Quality Standards Review 

Process 

D. State/Federal Roles 

E. Impact on State Resources 

F. Regulatory Impact Analysis 

G. List of Subjects in 40 CFR 131 

Appendix A: Response to Public Comment 

on the ANPRM (43 FR 29486, July 10, 1976). 

A. Introduction 

A water quality standard defines the 

water quality goals of a water body, or 

portion thereof, by designating the use 

or uses to be made of the water and by 

setting criteria necessary to protect the 

uses. States adopt water quality 

standards to pFotect public health or · 

welfare, enhance the quality of water 

and serve the purposes of the Clean 

Water Act [the Act). "Serve the 

purposes of the Act" (as defined in 

Sections 101(a)(2) and 303(c) of the Act) 

means that water quality standards 

should, "wherever attainable," provide 

water quality for the protection and 

propagation of fish, shellfish and 

wildlife and for recreation in and on the 

water and take into consideration their 

use and value for public water supplies, 

propagation of fish and wildlife, 

recreation, agricultural and industrial 

purposes and navigation. 

Water quality standards are the 

foundation of a State's water quality 

management process. The State water 

quality management process varies from 

State to State but the phrase is used 

here to describe the general mechanism 

States use to integrate the various 

activities under the Act into a coherent 

management framework. Section 106, 

205(g), 205(j), 208, 303 and 305 of the Act 

set out the planning and management 

activities to be undertaken by States 

and local governments to establish their 

water quality goals and standards and 

to develop programs whic~ will meet 

those goals. This includes: (1) Setting 

and revising standards for all water 

bodies; [2) water monitoring activities 

upon which water quality based 

decisions are made, progress evaluated 

in meeting State goals and the 

effectiveness of water quality planning 

and management efforts measured; (3) 

total maximum daily loads and waste 

load allocations for each water body 

that cannot meet water quality 

standards after point sources are 

controlled by national municipal and 

industrial technology based controls; (4) 

the water quality management plan, 

certified by the Governor and approved 

by EPA, which lists the standards, 

prescribes the regulatory and 

construction activities necessary to meet 

the standards and guides the 

implementation of water pollution 

control programs; (5) the Continuing 

Planning Process (CPP) document which 

outlines the process by which the State 

will undertake each of these planning 

and management activities; and (6) the 

305[b) report which documents the 

status of water quality and water 

pollution control programs of ~he States. 

The U.S. Environmental Protection· 

Agency [EPA) is revising the Water 

Quality Standards Regulation (40 CFR 

35.1550) as part of an overall effort to 

assist States.in improving the 

management of their water quality 

programs. Several policy initiatives are 

incorporated into the revised water 

quality standards regulation which will 

serve to improve the water quality . 

standards decision-making proeess by 

ensuring that the decisions are ba:secl on 

sufficient data and information, 

appropriate scientific analyses and open 

debate and involvement with those 

affected by the decisions. 

States are encouraged to obtain the 

necessary data and information to: [1) 

Adequately analyze the attainability of 

the uses; [2) perform benefit-cost 

assessments on attaining the uses; and 

(3) set site-specific criteria. Other State 

agencies, local and regional 

governmental entities, industry, and 

environmental and academic groups 

which have data and information can 

assist States in their analyses prior to 

the public hearing process on the 

revisions of State water quality 

standards. The State analyses are to be 

available at the public hearing so that 

during the public hearing, interested 

groups can debate, support and/or · 

challenge the analyses the State used as 

a basis for any possible revisions to 

their standards. The changes 

recommended in the proposed 

regulation will enable States to use 

standards as a pragmatic tool in the 

State water quality management process 

and as the foundation for water qualitybased control programs. 

The U.S. Environmental Protection 

Agency's Guidelines for State and 

Areawide Water Quality Management 

Program Development, Chapter 5, 

"Water Quality Standards," November 

1976, is rescinded. It will be superseded 

by the Water Quality Standards 

Handbook. The Handbook will contain 

the guidance to assist States in 

implementing their water quality 

standards program. This guidance will 

be available before the final regulation 

is published. Copies of the draft 

guidance documents may be obtained 

for review and comment from the 

individual referenced under "FOR 

FURTHER INFORMATION CONTACT". The 

documents include: 

Water Quality Standards Handbook. 

All the guidance published by EPA to 

assist States in implementing their water 

quality standards program will be 

included in a handbook so that any 

future policy or program interpretation 

may be easily added. The handbook 

includes: 

• Water-body Surveys and 

Assessments for Analyzing the 

Attainability of Uses. Describes the 

biological, chemical and physical factors 

that States may evaluate in determining 

existing uses of a water body and 
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Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 49235 

whether designated uses are attainable 

based on the characteristics of the water 

body. 

• Benefit-Cost Assessment in the 

Water Quality Standards DecisionMaking Process. Outlines alternative 

analyses States may use in deciding 

whether the benefits of attaining a use 

bear a reasoanble relationship to the 

costs. 

• Setting Site-Specific Criteria. 

Outlines methods for setting sitespecific criteria to reflect instream 

conditions. 

EPA would appreciate public 

comment on any aspect of the proposed 

water quality standards regulation and 

program, but especially on the options 

described for the antidegradation policy 

in section C.6 of this Preamble. 

B. Proposed Changes and Clarifications 

EPA Is proposing the revision to the 

water quality standards regulation to 

make fundamental changes in the 

management of the program. These 

changes would enable the States to: 

• Design a water quality standards 

program based on priority water quality 

polluant problems; • Select the uses and set criteria 

· consistent with meeting the 

requirements of the Act; and • Revise uses based on an analysis of 

the attainability of uses and the costs 

and benefits of attaining the uses. 

The major proposed changes in the 

water quality standards program 

include: 

1. Focusing on priority water bodies 

2. Determining the attainability of 

uses by: 

a. Analyzing environmental and 

physical factors impacting the 

attainment of a use 

b. Assessing the benefits and costs of 

attaining a use 

3. Changing designated uses 

4. Providing for varying levels of 

aquatic protection 

5. Developing site-specific criteria 

6. Clarifying the antidegradation 

policy 

7. Eliminating provisions relating to 

national resource waters 

8. Recognizing general policies 

applicable to State water quality 

standards 

9. Specifying elements which EPA will 

review in approving State water quality 

standards. 

1. Focus on Priority Water Bodies 

Existing Provision: ''The State shall 

hold public hearings for the purpose of 

reviewing water quality standards and 

shall adopt revisions to water quality 

standards, as appropriate, at least once 

every three years • • *" (§ 35.1550(a]). 

Proposed Change: To ensure that 

standards are reviewed in detail, based 

on adequate data and information, the 

proposed regulation no longer requires 

States to review all their water quality 

standards every three years. Rather, 

EPA is encouraging States to select 

priority water quality limited 1 segments 

for review, as necessary. The selection 

of these segments, and their review in 

accordance with this regulation satisfies 

the requirement in Section 303(c)(1) of 

the Act that standards be reviewed from 

time to time (but at least once during 

each three year period). 

Priority water quality areas will be 

identified in accordance with the 

revised regulation for water quality 

management planning (40 CFR Part 130) 

and guidance for State preparation of 

Section 305(b) reports. Priority water 

quality areas will be used for scheduling 

total maximum daily loads and major 

· permits, as well as developing 

construction grant priority lists and 

focusing monitoring, enforcement and 

reporting efforts. Priorities may include 

areas where advance treatment and 

combined sewer overflow funding 

decisions are pending, major water 

quality-based permits are scheduled for 

issuance or renewal, or toxics have been 

identified or are suspected of precluding 

a use or are posing an unreasonable risk 

to human health. In selecting priorities, 

States should also take into account the 

"Municipal Wastewater Treatment 

Construction Grant Amendments of 

1981" (Pub. L. 97-117, December 29, 

1981). Section 24 of the amendment is 

intended to ensure that \Yater quality 

standards influencing construction grant 

decisions have been reviewed in 

accordance with Section 303(c) of the 

Acl It prohibits the issuance of a grant 

after December, 1984, unless the State 

has completed its review of the water 

quality standard for any segments 

affected by the project grant (see Interim 

Final Rule 40 CFR 35.2111, 47 FR 20450, 

May 12, 1982). 

To comply with Section 24 on effluent 

limited segments no further water 

quality standards review will be needed 

beyond the determination that the 

segment is effluent limited. A more 

comprehensive review will be required 

for water qllality limited segments for 

which an AT project application is 

anticipated. The level of review is 

dependent on particular site-specific 

conditions. Guidance is available which 

1 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)(l) and (21 of the Act. 

describes analyses that States may find 

appropriate in reviewing their water 

quality standards in detail. 

By focusing on high prioritY, water 

quality limited segments where the costs 

or benefits of installing controls are 

significant, States will be able to collect 

and analyze the data and information 

necessary to improve their decisionmaking process. State water quality 

agencies should work with other State, 

Federal, areawide and local planning 

agencies and the private sector to assist 

in assembling the data and in 

performing the analyses. Since the 

review of standards will be a continuous 

process, EPA and the States should 

cooperatively develop a list of priority 

water quality limited segments which 

will be reviewed in the coming year. 

Such annual plans will enable EPA to 

assist States more effectively in revising 

their standards. 

2. Use Attainability 

Existing Provision: Under§ 35.1550(b) 

and (c) of the existing regulation: 

The water quality standards of the State 

shall: 

(1) Protect the public health or welfare, 

enhance the quality of water and serve the 

purposes of the Act; 

(2) Specify appropriate water uses to be 

achieved and protected, taking into 

consideration the use and value of water for 

public water supplies, propagation of fish, 

shellfish, and wildlife." recrea lion purposes, 

and agricultural, industrial, and other 

purposes, and also taking into consideration 

their use and value for navigation • • • 

In reviewing and revising its water quality 

standards, the State shall adhere to the 

following principles: 

(1) The State shall establish water quality 

standards which will result in the 

achievement of the national water quality 

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

wherever attainable. In determining whether 

such standards are attainable for any 

particular segment, the State should take into 

consideration environmental, technological. 

social. economic, and institutional factors. 

(2) The State shall maintain those water 

uses which are currently being attained. 

Where existing water quality standards 

specify designated water uses less than those 

which are presently being achieved, the State 

shall upgrade its standards to reflect the uses 

actually being attained. 

(3) At a minimum, the State shall maintain 

those water uses which are currently 

designated in water quality standards, 

effective as of the date of !hese regulations or 

as subsequently modified • • •. The State 

may establish less restrictive uses than those 

contained in existing water quality 

standards, however, only where the State can 

demonstrate that: 

(i) The existing designated use is not 

attainable because of natural background; 
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49236 Federal Register I Vol. 47, No. 210 I Friday. October 29, 1982 I Proposed Rules 

(ii) The existing designated use is not 

attainable because of irretrievable maninduced conditions; 

(iii) Application of effluent limitations for 

existing sources more stringent than those 

required pursuant to section 301(b)(2)(A) and 

(B) of the Act in order to attain the existir.g 

designed use would result in substantial and 

widespread economic impact. 

(4) The State shall take into consideration 

the water quality standards of downstream 

waters and shall assure that its water quality 

standards provide for the attainment of the 

water quality standards of downstream 

waters." 

Proposed Change: Since passage of 

the Water Quality Act of 1965 (Pub. L. 

89-234) water quality standards were 

set to provide for the protection and 

propagation of fish, shellfish and 

wildlife, and recreation in and on the 

water, often without adequate analysis 

as to whether these uses were 

attainable. Agricultural or industrial 

purposes or navigation, which may have 

been more appropriate as the principal' 

use, where usually rejected as not 

meeting the requirements of the Act. As 

a result, some standards reflecting 

unreasonable stream uses were adopted 

which either forced overly stringent and 

costly treatment controls or were simply 

ignored in the implementation of water 

pollution control programs. 

Because legitimate factors may 

effectively prevent a use from being met, 

EPA recommends that States justify 

changes in the use designations by 

analyzing the attainability of uses (see 

proposed section 40 CFR 131.11(a) and 

(b)). These particular analyses are 

optional. However, some type of 

adequate analysis must be submitted to 

support revisions to standards. EPA 

believes that the information generated 

by the suggested analyses, and the 

involvement of the public in providing 

data for the analyses, will enable States 

to improve their decision-making 

process. 

Analyzing the attainability of uses is a 

multi-step, but not necessarily complex, 

process for determining whether 

impaired uses are attainable and for 

determining other appropriate uses of a 

particular water body. For a discussion 

of the context in which the analyses 

would be used, see section C, State 

Water Quality Standards Review 

Process. 

(a) Use Attainability Analysis 

(Environmental and Physical Factors) 

The term "use attainability analysis" 

refers to a scientific analysis of factors 

which determine the suitability of the 

·water body for a particular use. These 

factors include the physical, chemical, 

and biological characteristics of the 

water body, its geographic setting, 

scenic qualities, and current uses. 

With the completion of effluent 

guidelines and the application of 

technology-based controls, EPA is now 

emphasizing the implementation of the 

water quality based approach to 

pollution control. The water quality 

based approach to pollution control. The 

water quality based approach will allow 

States to focus on their priority water 

bodies and, when necessary, to provide 

adequate water quality protection 

beyond what will be achieved through 

technology-based control. In 

implementing a water quality approach, 

the use attainability analysis is a key 

analysis. 

The proposed regulation(§ 131.10(d) 

and (i)(2) and (3)) prohibits States from 

modifying or reclassifying designated 

uses if they can be attained by 

implementing technology-based controls 

and cost-effective and reasonable best 

management practices (BMP's) for the 

control of non point sources. 

If adequate data are available to 

conduct a use attainability analysis, an 

intensive survey of the water body is 

not necessary. If adequate data are not 

available, a water body survey will 

assist States in pinpointing the water 

quality problems and in determining 

present uses, uses impaired and the 

reasons the uses are impaired. The use 

attainability analysis should be 

sufficiently detailed to answer the 

following questions: 

1. What is the use to be protected? 

How is it characterized in physical, 

chemical and biological terms, and in 

terms of its social or economic value? 

2. To what extent does pollution 

contribute to the impairment of the use? 

Which pollutants are significant in terms 

of impairing the use? To what extent 

does water quality affect the use 

relative to other non-water quality 

factors such as flow, and the physical 

habitat? What level of in-stream water 

quality must be maintained to provide 

adequate protection for the use given 

the characteristics of the use? 

3. What is the level of point source pollution control necessary to restore or 

enhance the use? What are the 

pollutants of significance that are 

present in the point source discharges? 

What is the contribution of point map 

source discharges relative to 

background levels (pollutants in the 

stream from upstream sources) and 

relative to nonpoint sources generated 

in the water body. What is the 

allowable pollution load from point 

sources under specified in stream flow 

conditions in the water body and how 

does that translate to permit 

requirements? What is the plan? 

4. What is the level of nonpoint 

source pollution control necessary to 

restore or enhance the use? What are 

the nonpoint source pollutants of 

significance that are present? What is 

the contribution of non point sources 

relative to background levels and point 

sources? Does the occurrence of 

nonpoint sources contribute to the 

impairment of the use? Is it significant? 

What is the "feasible" level of control of 

nonpoint sources? What is the plan? 

Experience indicates that defining the 

problem is neither an easy process nor, 

in all cases, a simple scientific exercise. 

Rather, problem definition requires 

debate and consensus building among 

all interested and affected organizations 

and individuals. 

(b) Benefit-Cost Assessment 

Although there are no universally 

accepted methods of quantifying or· 

placing a dollar value on direct and 

indirect benefits or costs, the water 

quality standards decision-making 

process by its very nature includes an 

assessment of the benefits and costs of 

meeting the standard. Water quality 

management plans, peer review of the 

scientific analyses of the attainability of 

uses or the appropriateness of criteria, 

and public debate of the decisions 

provide the responsible State 

rulemaking body with the information it 

neeos to weigh and balance the tangible 

and intangible benefits and costs of its 

standards decision. 

This proposed regulation advocates a 

structured exercise to identify and 

evaluate the incremental impact of the 

standards decision. It is difficult to 

generalize on the level of precision and 

detail appropriate for any site-specific, 

benfit-cost assessment. However, the 

more costly and controversial the 

potential impacts of a standards 

decision, the more comprehensive the 

analyses of the benefits and costs will 

need to be. The analysis should be 

sufficiently detailed to identify and 

display all significant impacts, the 

sensitivity of key assumptions, 

variables, and risk aiCd uncertainty of 

attaining a designatej use, to serve as a 

basis for the rulemaking body to 

determine that there is (or is not) a 

reasonable relationship between the 

incremental costs and resulting 

incremental benefits. 

Guidance will be available to assist 

the States in conducting the benefit-cost 

assessment, A number of methodologies 

and approaches will be presented for 

States to consider in identifying and, to 

the maximum extent practicable, 

quantifying the benefits and the costs. 

All significant impacts (benefits or 
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Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 49237 

costs) of attaining the standard whether 

quantifiable Or not are identified. Some 

impacts, even .though they cannot be 

quantified may be crucial to the 

decision. 

If the State conducts a use 

attainability analysis and benefit-cost 

assessment, these analyses should be 

available to the public and EPA. This 

will stimulate open debate and scrutiny 

of the findings among scientific peer 

groups and will ensure an understanding 

of the changes in uses the ,State is 

recommending. Such discussions should 

enable the State to make more informed 

decisions on proposed water quality 

standards revisions and enable EPA to 

adequately review the appropriateness 

of the revisions. 

3. Types of Changes to Designated Uses 

Existing Provision: The terms 

"downgrading" and "upgrading" and 

alternatives to removing a use in a 

State's water quality standard were part 

of the U.S. Environmental Protection 

Agency's Guidelines for State and 

Areawide Water Quality Management 

Program Development, Chapter 5, 

"Water Quality Standards," November, 

1976, rather than the existing regulation. 2 

Proposed Change: The terms 

"downgrading" and "upgrading" 

cannoted "higher" ana "lower" uses. 

However, there is no accepted hierarchy 

of uses. There has also been confusion 

over what constitutes a downgrading. 

The prop{lsed regulation establishes 

new terminology to describe changes in 

uses. The proposed regulation replaces 

"upgrading" and "downgrading" with 

"adding", "removing", and "modifying" 

use designations. These terms are used 

to clarify the types of changes that are 

allowed. "Adding" or "removing" a use 

designation refers to identifying 

different uses for a waterbody or 

segment consistent with meeting the 

goals of the Act. "Modifying" a use 

refers to keeping the same general 

classification such as aquatic protection 

but changing the designation, for 

example, from a cold water fishery to a 

warm water fishery. 

The regulation also encourages States 

{o consider steps short of removing a 

use entirely. States are encouraged to 

adopt seasonal uses (see § 131.10(g)), 

where applicable, for uses that are 

attainable only during certain times of 

the year. For example, certain 

·intermittent streams or wetlands may 

lack adequate water to support aquatic 

life year round but could serve as 

spawning grounds during spring runoff. 

The proposed regulation allows States 

to modify or reclassify a use, which is 

2This publication has been rescinded. 

not an existing use as defined in the 

regulation, (see § 131.2) if attaining the 

use is not feasible because (see 

§ 131.10(h)): 

• naturally ·occurring pollutant 

concentrations prevent the attainment 

of the use; • natural, ephemeral, intermittent or 

low flow conditions or water levels 

prevent the propagation or survival of 

fish and other aquatic life. These 

natural conditions may be 

compensated for by the discharge of 

sufficient volume of effluent 

discharges to enable uses to be met; 

• human caused conditions or sources 

of pollution exist which cannot be 

remedied or would cause more 

environmental damage to correct than 

to leave in place; 

• dams, diversions or other types of 

hydrologic modifications interfere 

with the attainment of the use, and it 

is not feasible to restore the water 

body to its original condition or to 

operate such modification in a way 

that will maintain the use; 

• physical conditions unrelated to water 

quality preclude attainment of the use; 

or 

• benefits of attaining the use do not 

bear a reasonable relationship to the 

costs. _ 

States may not modify or reclassify 

designated uses if (see§ 131.10(i)): 

• They are existing uses unles.s uses 

requiring more stringent criteria are 

added; 

• uses will be attained by implementing 

the effluent limits required under 

Section 301(b)(1) and (2) of the Act 

(including modifications under Section 

301(c) of the Act); 

• uses will be attained by implementing 

cost-effective and reasonable best 

management practices for nonpoint 

source controls; or 

• the revision is based on anticipated 

growth; 3 or • the revision would result directly or 

indirectly in impairment of 

downstream uses. 

4. ·Levels of Aquatic Protection 

Existing Provision: Beypnd the 

general references to various stream 

uses referred to in 40 CFR 35.1550(b) and 

(c), no explicit references exist that 

'The provision precluding the modification of a 

stream use based on anticipated growth is 

consistent with the proposed antidegradation 

policy. In Section 6 of the Preamble, 

"Antidegradation and Maintenance of Existing 

Uses," the Agency describes alternative 

antidegradation policies. This provision on 

economic growth may change depending on the 

antidegradation policy the Agency finally 

promulgates. The reader is specifically requested to 

comment on the alternatives discussed in Section 6. 

define levels of protection within the 

aquatic protection use category. (Level 

of protection refers to the impact on 

propagation, growth. survival, and 

diversity of species, relative to various 

water quality criteria levels for a water 

body). However, subcategories of the 

aquatic protection use have evolved as 

both the States and EPA recognized that 

aquatic protection could range from 

providing for the survival of pollutanttolerant fish to providing high quality 

trout streams. These sub-categories may 

include warm wate~ and cold water 

fisheries, fish survival. fish passage, and 

put-and-take fisheries. 

Proposecj Change: Section 130.10(b) of 

the proposed regulation expressly 

provides States the. opportunity to define 

subcategories of aquatic protection uses 

which reflect different levels of 

protection. 

Subcategories will reflect the 

expected effects of various criteria 

levels on the growth, propagation, and 

diversity of fish and aquatic life. In 

describing the various effects on the 

aquatic community, the State may look 

at existing data bases, such as the 

Section 304(a) criteria guidance, to 

determine if the resident species in the 

particular waterway might experience 

adverse growth or reproductive effects. 

This evaluation can be matched against 

the various treatment levels and costs. 

This information may then be 

considered in public forums to reach 

decisions that balance costs against 

levels of protection in setting stre(lm 

uses and criteria. 

The information available from water 

quality management plans, the use 

attainability analysis, the benefit-cost 

assessments and EPA's criteria guidance 

can be used in identifying specific levels 

of protection. In future criteria 

development, EPA will attempt to 

provide more information as an aid to 

States in more precisely correlating 

instream pollutant concentrations with 

biological characteristics as they relate 

to fishery classifications. 

Presently, a number of States have 

defined subcategories of aquatic 

protection or are considering doing so. 

For example, Pennsylvania has 6 

different dissolved oxygen lev~ls which 

may be applied to any one of 7 aquatic 

protection uses which are·generally 

based on a cold water, warm water 

division. Montana has defined criteria 

for 4 different kinds of trout streams, in 

addition to other aquatic_protection 

uses. Oklahoma has specific uses 

designated for protection of smallmouth 

bass and a put-and-take trout fishery. 

Criteria for these uses differ from the 

basic aquatic protection uses. 

.. 
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49238 Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 

Wisconsin is currently considering a 

stream use classification system 

involving 5 use classes [all related to 

aquatic protection), which places 

common fish species by name into the 

different use classes. The application of 

seasonal uses, as described in an earlier 

section, is another way to provide 

varying levels of protection. 

5. Developing Site-Specific Criteria 

Existing Provision 

Other than indicating that States are 

to specify criteria necessary to support 

designated water uses, the existing 

regulation does not reference acceptable 

methods for developing site-specific 

criteria. Under Section 304[a) of the Act, 

EPA develops and publishes guidance 

on surface water quality criteria, which 

are quantitative or qualitative estimates 

of acceptable concentrations or 

conditions of water constituents or 

pollutants in ambient waters. The 

guidance reflects the latest scientific 

knowledge of the identifiable effects of 

each pollutant on public health and 

welfare, aquatic life, and recreation. 

Between July 10, 1978, and November 

28, 1980, EPA operated under the policy 

of presumptive applicability. 

Presumptive applicability meant that the . 

State had to adopt a criterion for a 

particular water quality parameter at 

least as stringent as the Section 304(a) 

criteria recommendation unless the 

State was able to justify a less stringent 

criterion. Little guidance was provided 

to States to assist them in modifying 

criteria based on site-specific local 

conditions and few modifications were 

in fact accepted. 

Proposed Change: The Section 304(a) 

criteria published by EPA are not rules 

and have no direct regulatory impact. 

EPA rescinded the policy of presumptive 

applicabilit~ on November 28, 1980 (45 · 

FR 79320). The proposed regulation 

reemphasizes States' flexibility in · 

setting or revising criteria. 

The proposed regulation encourages 

States to develop site-specific criteria to 

reflect local conditions. The Section 

304(a) laboratory-derived criteria may 

not accurately reflect the toxicity of a 

pollutant because of the effect of local 

water quality characteristics or varying 

sensitivities of local aquatic 

communities. In other cases, adaptive 

processes may enable a viable, 

balanced aquatic community to exist in 

water with high natural background 

levels of certain pollutants. Similarly, 

certain compounds may be more or less 

toxic in some waters becasue of 

differentes in temperature, hardness, 

and other parameters. Developing site-

.specific criteria is a method of taking 

local conditions into account. This 

determination ensures that criteria will 

be adequate to protect the designated 

use and that they will not be more 

stringent than needed. 

There are water bodies that support 

the designated uses even though the 

Section 304(a) numerical criteria 

included in the State's standard are 

exceeded. EPA believes that if, after 

surveying the water body, States 

determine that the water conditions are 

acceptable for the use even though the 

criteria are exceeded, States should be 

able to modify the criteria. Such changes 

should be justified based on acceptable 

scientific procedures that reflect actual 

instream levels and should be submitted 

to EPA for review and approval. 

8. Antidegradation and Maintenance of 

Existing Uses 

Existing Provision (Section 40 CFR 

35.1550(e)) 

"The State shall develop and adopt a 

Statewide antidegradation policy and 

identify the methods for implementing 

such policy • • • The antidegradation 

policy and implementation methods 

shall, at a minimum, be consistent with 

the following: 

(1) Existing instream water uses shall 

be maintained and protected. No further 

water quality degradation which would 

interfere with or become injurious to 

existing instream water uses is 

allowable. 

(2) Existing high quality waters which 

exceed those levels necessary to support 

propagation of fish, shellfish, and 

wildlife and recreation in and on the 

water shall be maintained and protected 

unless the State chooses, after full 

satisfaction of the intergovernmental 

coordination and public participation 

provisions of the State's continuing 

planning process, to allow lower water 

quality as a result of necessary and 

justifiable economic or social 

development. In no event, however, may 

degradation of water quality interfere 

with or become injurious to existing 

instream water uses • * * Further, the 

State shall assure that there shall be 

achieved the highest statutory and 

regulatory requirements for all new and 

existing point sources and feasible 

management or regulatory programs 

pursuant to section 208 of the Act for 

nonpoint sources both existing and 

proposed." 

Proposed Change: Ever since the 

antidegradation policy initiative was 

first developed in 1968, the question of 

the impact of that policy on economic 

growth has been debated. EPA is 

soliciting comments on the 

antidegradation policy alternatives 

described below and is requesting 

specific information on any instance 

where the existing antidegradation 

policy may preclude or constrain 

economic growth and development. The 

Agency will carefully consider these 

responses in formulating its final 

position. 

The selection of a policy is important, 

not only as it relates to questions of 

growth, but as it relates to EPA's role in: 

(a) Satisfying the Clean Water Act's 

requirement that water quality 

standards "* * * enhance the quality of 

water * * *,"and (b) meeting the 

objective of the Act to "* * • restore an 

maintain the chemical, physical, and 

biological integrity of the nation's 

waters." 

The proposed regulation is based on 

limiting the mandatory antidegradation 

policy to the protection and 

maintenance of existing uses (see 

§ 131.10(c)). Once a State determines 

that a use is being attained, that use 

cannot be changed to a use requiring 

less stringent criteria. However, States 

may designate additional uses for the 

water body or segment. Dischargers 

must be controlled to the extent 

necessary to ensure the maintenance of 

the use requiring the most stringent 

criteria. 

The emphasis in this proposal is on 

the use, not individual water quality 

parameters which might, in any 

particular water body, be higher than 

necessary to protect the existing use. 

For example, if a stream was meeting a 

warmwaterrishery use which included a 

criterion of 5.0 mg/1 for dissolved 

oxygen [D.O.), and the in-stream 

concentration of D.O. was 7.0, the 

proposed policy would allow additional 

discharges to the stream until the instream D.O. level decreased to 5.0 mg/ 

1-but not less than that. No public 

participation requirements would be 

involved in the lowering of the in-stream 

D.O. level because there would be no 

change in the. water quality standard. 

This policy, if finally adopted by the 

Agency, would mean that once a use has 

been met, it must continue to be met 

regardless of any future growth or 

development [including plant 

expansion) that might occur. 

Option two retains the existing 

antidegradation policy (40 CFR 

35.1550(e)[2)), except for provisions 

related to outstanding National resource 

waters. 4 This option restricts changes in 

the quality of existing high quality 

waters (e.g. those waters whose quality 

exceed levels necessary to support fish, 

• See Discussion on Outstanding National 

Resource Waters, Section 7 of the Preamble. 
HeinOnline -- 47 Fed. Reg. 49239 1982

Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 49239 

shellfish, and wildlife and recreation in 

and on the water) even if the existing 

use would still be protected. The quality 

of these waters would be maintained 

and protected unless the State chooses, 

after full satisfaction of the public 

participation provisions of the State's 

continuing planning process, this 

regulation and EPA's public 

participation requirements (40 CFR Part 

25) to allow lower water quality as a 

result of necessary and justifiable 

economic or social development. In no 

event, however, would degradation of 

water quality be allowed to interfere 

with or become injurious to existing instream water uses. 

The difference between this option 

and the one proposed lies in the 

requirement for full satisfaction of 

public participation provisions of State 

and Federal law before any change in 

high quality waters may occur. This 

position is grounded on the concern that 

there may be risks involved in lowering 

water quality because the calculations 

upon which the various pollutant levels 

and their effects are based may not be 

sufficiently precise to assure that 

lowering water quality will, in fact, 

allow the use to continue to be attained. 

This option requires States \o go through 

a public decisionmaking process before 

lowering water quality. 

Option three offered for consideration 

is to allow changes in existing uses if 

maintaining that use would effectively 

prevent any future growth in the 

community or if tlie benefits of 

maintaining the use do not bear a 

reasonable relationship to its costs. 

Such a modification of the water quality 

standard would be granted only after 

full satisfaction of public participation 

provisions of State's continuing planning 

process, this regulation and EPA's public 

participation requirements (40 CFR Part 

25) and demonstration that the 

technology-based requirements of the 

Act, those included in 301(c) waivers, 

and cost-effective and reasonable best 

management practices have been 

implemented. States, under their own 

legal and administrative procedures, 

could adopt an antidegradation policy of 

their own choosing but this would not be 

required. 

This option would provide States with 

the flexibility to change or modify an 

existing stream use to uses requiring 

either more or less stringent criteria. It 

enables a State to exchange an existing 

stream use for economic growth and 

development. Under this option, the 

States would still have to meet the 

general provisions applicable to 

changing or modifying uses listed in 

Subpart B of the proposed rule (other 

than the growth restriction), and 

industries and municipalities would still 

have to meet the minimum technologybased treatment requirements listed in 

the Act. 

The following table contrasts the 

differing provisions of the 

antidegradation policy alternatives. 

TABLE 1.-ANTIDEGRAOATION OPTIONS 

Option 

EKist· 1 Option Option lnjl (propolicy posed 2 3 

policy) 

Existing Use must be 

maintained .....•.•.••••.•.•••. Yes Yes Yes No 

High Quality waters 

must be maintained·-· No No No No 

Public participation 

required to lower 

high quality waters .....• ·Yes No Yes No 

Public p'articipation 

required to change 

water quality 

standard .•....•....•..•..•...•. Yes Yes Yes Yes 

Provision for 

Outstanding National 

Resources Waters ..•••. Yes No No No 

Treatment 

requirements set by 

Act must be met. ••.••... Yes Yes Yes Yes 

7. Protection of Outstanding National 

Resource Waters 

Existing Provision: Section 40 CFR 

35.1550(e)(2) of the regulation provided 

for special designations to protect 

outstanding national resource waters. 

Change: The revised regulation 

eliminates this provision because the 

Clean Water Act does not provide for 

special designations of national 

resource waters. However, under 

Section 510 of the Act, States may 

include special designations in their 

water quality standards to preserve the 

characteristics of outstanding or unique 

resource waters such as swamps, parks 

or wildlife refug~s. 

8. General Policies 

Existing Provision: The existing 

regulation does not recognize general 

policies applicable to State's water 

quality standards. 

Proposed Change: EPA encourages the 

adoption of statewide policies 

applicable to a State's water quality 

standards. Section 40 CFR 131.13 of the 

proposed regulation identifies some of 

the policies that are generally applicable 

to a State's water quality standards 

program such as policies on mixing 

zones, variances, and low flow 

exemptions. 

9. Review and Approval 

Existing Provision: "The Regional 

Administrator shall approve or 

disapprove any proposed revisions of 

water quality standards in accordance 

with the provisions of section 303(c)(2) 

of the Ac.t" (section 40 CFR 35.1550(a)). 

Proposed Change: In the past, EPA's 

regulations and guidance did not always 

describe the type of analyses that would 

support changes in uses or criteria. 

Therefore. the review and approval 

process frequently involved delay, 

uncertainty and requests for additional 

information between individual 

dischargers, States, EPA Regions, and 

EPA Headquarters. The proposed 

regulation attempts to define what 

information must be submitted, the 

review of State standards-setting 

decisions (Sections 40 CFR 131.4, 131.21, 

and 131.22) and encourages consultation 

prior to formal review by EPA (Section 

131.21(b )). 

Conducting the recommended 

analyses and consulting in advance with 

EPA should expedite EPA's review and 

approval of State water quality 

standards revisions. 

The proposed regulation also stresses 

that EPA is subject to the same 

requirements in promulgating standards 

as States are in 'adopting standards. 

C. State Water Quality Standards 

Review and Revision Process 

1. Introduction 

This discussion of the State water 

quality standards review and re.vision 

process incorporates the changes 

embodied in the proposed water quality 

standards regulation. This process is 

included in this Preamble to: (1) Clarify 

how the changes in the standards 

program would affect the State's review 

process and (2) provide the context in 

which the use attainability analyses and 

benefit-cost assessments would be 

made. The discussion does not deal with 

all of the administrative and legal 

procedures necessary for State adoption 

and EPA review and approval of State 

standards. 

Section 303(c) of the Clean Water Act 

requires States to review and revise, if 

necessary, their standards at least once 

every three years. EPA is encouraging 

States to review standards on priority 

stream segments, rather than conduct a 

statewide review of all standards every 

three years. However, under the 

"Municipal Wastewater Treatment 

Construction Grant Amendments of 

1981" (Pub. L. 97-117) before EPA may 

make a construction grant after 1984, a 

State must have reviewed the water 

quality standards for any segment 

affected by the project for which the 

grant is sought. By focusing on priority 

segments States should be able to apply 

their resources more efficiently to better 

analyze their water quality standards. 
HeinOnline -- 47 Fed. Reg. 49240 1982

49240 Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 

The process is outlined in Figure 1. 

Implementation of the water quality 

standards review and revision process 

is not a routine, step-by-step procedure. 

In actual practice, the process is 

Iterative, as adjustments in uses, 

criteria, wasteload allocation strategies, 

effluent limits and permits are made and 

the results predicted or observed. Since 

the various parts of the process are 

Interrelated, no clean demarcation 

exists between the end of one task and 

the beginning of another. For example, 

data gathered as part of the water body 

surveys and assessments can be used to 

set site specific criteria and conduct the use attainability analyses and 

wasteload allocations. Water quality 

problems vary as do the data available. 

Previous standard-setting actions, the 

resources available to the State to 

conduct the analyses and the priority 

the State assigns to a problem also 

influence the process. The amount of 

information needed, the sophistication 

of the analyses, and the timing and 

sequencing of the steps in.the process 

will depend on the situation. The 

process relies heavily on common sense 

and practical application of limited -

resources. Not every step of this process 

is necessary for every water quality 

standard review. 

BILUNG CODE 656D-5D-M 
HeinOnline -- 47 Fed. Reg. 49241 1982

® 

® 

LIST OF RIVERS, 

STREAMS, 

SEGMENTS, LAKES 

COASTAL AREAS 

WITH WATER 

QUALITY 

PROBLEMS 

DEFINE TOTAL MAX. 

DAILY LOADS AND 

PERFORM WASTE 

LOAD AllOCATIONS 

FIGURE 1 

WATER QUALITY STANDARDS REVIEW AND REVISION PROCESS 

NO 

YES 

SELECT PRIORITY 

STREAM SEGMENTS 

FOR REVIEW 

YES 

NO 

BETWEEN TtiE COMMON BEGINNING ELEMENTS ABOVE 0 

AND THE COft1MON FINISHING STEPS USTED BEt-OW® 

INSERT TRACK "B" OR"C" FROM THE NEXT PAGE 

SET DISCHARGE 

LIMITS 

ISSUE PERMITS I • ( 

L\ DISCHARGES 

MEETING \...___ NO 

('ERMIT ,--

CONDITION!> 

y 

YES 

TAKE 

ENFORCEMENT 

ACTION 

MONITOR RECeiVING 

WATER TO ENSURE 

EXPECTED WATER 

QUALITY IMPROVE· 

MENTS ACHIEVED 

CONDUCT A 

SURVEY 

AND ASSESS: I 

MENTOFTHE 

WATER BODY 
HeinOnline -- 47 Fed. Reg. 49242 1982

FIGURE i (continued) 

DETERMINE I I I .. I ATTAINABLE USES 

X .... 

BILLING CODE 656D-5G-C 

NO 

A 

WILL RELIEF 

BE GRANTED)-

TOALL YES 

DISCHARGES 

ON A SEGMENT 

v 

POINT 

AND NONPOINT 

SOURCES 

NO 

YES 
HeinOnline -- 47 Fed. Reg. 49243 1982

Federal Register 1 Vol. 47, No. 21b I Friday, October 29, 1982 I Proposed Rules 49243 

2.Process 

This section describes the steps 

shown in Figure 1. 

List Rivers, Streams, Segments, Lakes or 

Coastal Areas With Water Quality 

Problems and Pollutants of Concern 

(Known or Expected) 

States know the location of their 

water pollution problems and frequently 

list the segments in order of priority in 

State water quality reports issued 

biennially under Section 305(b). Water 

quality problems are most frequently 

expressed in terms of impacts on the 

biota of the water body, restricted uses, 

and the extent and frequency of water 

quality criteria violations. 

Select Priority Water Quality Limited 

Stream Segments for Water Quality 

Standards Review 

Water quality standards should be 

revised only where a need exists, given 

the limited resources available. Section 

303(d) of the Act requires States to 

identify those waters which cannot meet 

water quality standards with effluent 

limitations required by Section 301(b)(1) 

and (2) and to establish a prioritr. 

ranking for those Willers. In addition, 

States are to set total maximum daily 

loads (TMDLs) for pollutants in these 

waters. Under Section 303(e), States are 

to have a continuing planning process 

which results in plans to comply with 

the TMDLs and new or revised water 

quality standards. 

EPA is recommending that States. 

select for standards review those water 

quality limited segments on which there 

are advanced treatment (AT) and 

combined sewer overflow (CSO) funding 

decisions pending, major permit 

revisions are scheduled or toxics have 

been identified or are suspected of 

precluding a use. States may select other 

criteria for determining which segments 

will be reviewed, such as human health 

problems, court orders, or costs or 

economic impacts of implementing the 

existing water quality standards. A 

public hearing or meeting is a 

mechanism for obtaining public input to 

and public comment on the segments 

selected for review. 

Conduct Water Body Surveys and 

Assessments 

An intensive survey of the water body 

is not necessary if adequate data are 

available. The purpose of the survey is 

to pinpoint the problem and to 

characterize present uses, uses 

precluded and the reasons for the uses 

being precluded. The survey includes 

measurements of the physical, chemical. 

and biological characteristics of the 

water body, the identification of present 

uses, and an assessment of its biological 

integrity. · The "biological integrity" of the water 

is evaluated to determine whether a 

healthy, balanced ecological commu~ity 

exists. A healthy, balanced commumty 

exhibits characteristics: (1) Similar to 

those of nearby, healthy communities 

existi!lg under comparable but . . unpoliuted environmental conditions, or 

(2) which might reasonably be expected 

to become re-established in the polluted 

water body segment from adjacent 

waters if sources of pollution were 

removed or substantially reduced. 

The characteristics examined in 

determining whether a balanced . 

community exists may includ~: species 

composition, abundance, dommance, 

and diversity; spatial/temporal . distribution, growth and reproduction of 

populations; disease frequency; trophic 

structure and productivity patterns; 

presence of opportunistic species; and 

the occurrence of mass mortalities . . U the results of the survey show that 

the biological conditions are acceptable 

for the use and that the water is, in fact, 

being used for the designated purposes, 

although monitoring data s~ow criteria 

continue to be exceeded, it IS 

recommended that the State modify the 

water quality standard by revising the 

criteria to reflect actual instream 

concentrations under varying seasonal 

conditions. This will avoid overly 

restrictive regulatory requirements on 

dischargers and the construction ~f 

unneeded and costly AT facilities. 

Review the Cause of Uses Not Being 

Met 

If the survey indicates that designated 

uses are impaired, the next step is to 

determine the cause. In many situations, 

both physical conditions and the 

presence of water pollutants prevent the 

water body from meeting its designed 

use. However, for simplicity, physical 

limitations of the water body have been 

separated from water quality pollutant 

problems in this discussion. Physical 

limitations of the water body refer to 

such factors as· depth, flow, turbulence 

or structures such as dams which may 

make swimming, boating or certain 

kinds of fishing unsuitable as a use. If uses are precluded because of 

physical limitations of the water body, 

the State would follow track (B) in 

Figure 1. 

Determine Attainable Uses 

Under track B, because the uses ure 

precluded due to physical limitations of 

the water map body, the next step in the 

process is to select other appropriate 

uses for the water map body by 

evaluating the suitability of the water 

body for particular uses. 

Consideration of the suitability of the 

water body to attain a use is an integral 

part of the water quality standards 

review and·revision process. The 

suitability of the water body to attain a 

use depends on the physical, chemical, 

and biological characteristics of the 

waterbody, its geographic setting and 

scenic qualities and the socio-economic 

and cultural characteristics of the 

surrounding area. Suitability also 

depends, to a great extend, on the 

professional judgment of t.h~ ~valuators. 

It is primarily the respons1b1hty of the 

evaluators to determine what types of 

uses are attainable in the absence of 

physical impediments or pollution. The 

question of whether the use is worth 

attaining is considered later in the 

process. 

In determining appropriate uses for 

the water body, States should take into 

consideration (1) the use and value of 

the water for public water supplies, 

propagation of fish and wil~life, . recreation, agricultural and mdustr1al 

purposes and navigation and (2) ~he . 

water quality goal of the Act, whiCh IS to 

provide for the protection and 

propagation of fish, shellfish and 

wildlife and recreation in and on the 

water, wherever attainable. The detail 

and scope of the analysis should be 

tailored to the individual situation. A 

complete analysis does not need to be 

conducted for every water. body. 

To determine whether a use is 

attainable, existing conditions are 

compared with the criteria or conditions 

necessary to meet the designated use. 

Designated uses may be impaired 

because of physical limitations of the 

waterbody or irreversible natural or 

man-induced background pollutant 

levels. Thus, swimming may be 

unattainable because the shallowness of 

the water body prevents the physical act 

of swimming. A particular type of 

fishery may be impossible for a body of 

water because the natural water 

temperature is too high. 

If the designated uses or the potential 

uses identified can be achieved by 

installing the required Section 301(b)(1) 

and (2) effluent controls or cost-effective 

and reasonable best management 

practices for nonpoint source control, 

the use should be considered 

appropriate and maintained in the water 

quality standard. However, if treatment 

more stringent than the required 

technology-based effluent limitations is 

necessary to attain the use of best 

management practices have not been 

included in a water quality management 
HeinOnline -- 47 Fed. Reg. 49244 1982

49244 Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 

plan, further analyses should be made to 

determine the benefits of attaining the 

use as compared to the costs of attaining 

the use. 

Revise Use, Revise Criteria and Adopt a 

New Water Quality Standard for the 

Stream Segment 

If a change in the designated use is 

warranted because of physical 

limitations of the water body, States 

may modify the use now assigned. In 

doing so, the State should designate a 

use or a level of aquatic protection 

which can be supported given the 

physical limitations of the water body. 

Or, a State may designate the use on a 

seasonal basis. Seasonal use 

designations may be appropriate for 

streams that lack adequate water 

volume to support aquatic life yearround, but can be used for spawning 

during higher flow periods. 

Every change in use designations must 

always be accompanied by 

consideration of the need for a change in 

criteria. If a use is removed, the criteria 

to protect that use may be deleted or 

revised to assure protection of the 

remaining uses. If a use is added, water 

quality criteria must be adopted by _the 

State to protect the use. 

Prior to revising the standard and 

submitting the revision to EPA, the State 

must hold a public hearing. The public 

hearing provides an opportunity for a 

debate of the use attainability analysis 

that the State has performed and its 

determination that the use is not 

attainable. 

The revised water quality standard is 

used as the basis for setting enforceable 

discharge limits in permits. To complete 

the process, track (D) in Figure 1 briefly 

outlines the steps which include: (1) 

Defining total maximum daily loads and 

performing a waste load allocation to 

determine the amount of pollutant load 

reduction among dischargers necessary 

to meet the revised standard; (2) setting 

the discharge limits and issuing permits, 

(3) taking enforcement action, if 

necessary, to ensure permit conditions 

are met, and (4) monitoring water 

quality to ensure water quality 

improvements are achieved. 

Uses Precluded Because of Water 

Quality Problems 

If uses are not being met because of 

water pollution problems, a more 

involved process is required. This is 

outlined in Figure 1 by track (C). The 

first step in the process is to determine 

the cause of the violation. As explained 

above, when background levels of 

pollutants, whether natural or maninduced, are irreversible and criteria 

cannot be met, States should evaluate 

the suitability of the uses to determine 

other more appropriate uses for the 

water body. If the cause of the water 

quality problem is pollution from point 

or nonpoint sources, States should first 

review· the criteria to determine if tlie 

criteria for the designated uses are 

appropriate for the site or need to be 

modified. 

Develop Site-Specific Criteria 

Developing site-specific criteria is an 

important component of the water 

quality standards revision process. EPA 

is developing and testing a scientifically 

acceptable procedure for setting 

pollutant concentrations that will 

protect the designated uses based on 

local environmental conditions. 

There are two methods for developing 

site-specific criteria. The first is based 

on the fact that criteria may differ 

because of the differences in overall 

sensitivities of different populations of 

aquatic organisms toward pollutants. 

The second method recognizes that 

overall water quality or water chemistry 

has a large impact on the toxicity or · 

bioavailability of pollutants toward 

aquatic organisms. (See the discussion 

in Section. B-5 of this Preamble for a 

more complete description of developing 

site-specific criteria). 

After the criteria are developed, the 

revised criteria are incorporated into the 

standard and used in the wasteload 

allocation process for setting discharge 

limits and in issuing permits. 

Determine Total Maximum Daily Loads 

and Perform Wasteload Allocations 

When the Section 301(b) (1) and (2) 

technology, based limitations and 

nonpoint source controls are not 

sufficient to protect the attainable 

designated use, the Clean Water Act 

requires the development of more 

stringent limitations if water quality 

standards are to be retained. EPA is 

encouraging States to review in detail 

those segments where more stringent 

effluent limitations are necessary to 

assure that the standards are 

reasonable. 

These more stringent limitations are 

generally developed as part of the total 

maximum daily load and wasteload 

allocation processes required under 

sections 303(d) and 303(e)(3)(A) of the 

Act. These sections require States to 

identify waters requiring more stringent 

effluent limitations, set priorities for 

calculating total maximum daily loads 

and submit them to the Administrator 

for approval. Total maximum daily 

loads of pollutants are set to meet water 

quality standards. The wasteload 

allocation involves: (1) Identifying the 

pollutant sources and their loadings, (2) 

applying mathematical models and other 

techniques that predict the amount of 

load reduction necessary to achieve the 

water quality standards, and (3) 

allocating the necessary load reduction 

among the pollution sources. 

Determine 1[ Nonpoint Source Controls 

Are Available 

After determining the load reductions 

necessary to achieve the designated 

uses, States must determine whether 

controls are available for the pollutants 

contributing to the water quality 

problems. In assessing the availability 

of controls, States must determine 

whether an approved water quality 

management plan addressed and 

adopted best management practices to 

control the nonpoint pollutant sources 

and whether institutional and political 

factors make implementing the controls 

feasible. If non point source controls are 

not available or feasible, a State may 

decide to evaluate whether nonpoint 

source control should be developed and 

incorporated into a water quality 

management plan. Alternatively, a State 

may wish to analyze what uses of the 

stream can be attained with the controls 

that are available. 

Benefit-Cost Assessment 

If feasible controls are available, a 

benefit-cost assessment may be made to 

determine whether it is worth requiring 

more stringent effluent limits than those 

in Section 301(b) (1) and (2) of the Act. 

A State may reclassify the water body. 

and designate uses requiring less 

stringent criteria if the State, in 

performing a benefit-cost assessment, 

determines that the tangible and 

intangible benefits do not bear a 

reasonable relationship to the cost of 

attaining the use. 

If the State determines that the 

standard needs to be revised, 

appropriate uses are selected and 

criteria developed to protect those uses. 

If the standard is maintained, discharge 

limits based on total maximum daily 

loads and the wasteload allocation 

necessary to meet the water quality 

standard are established and permits 

issued. Alternatively, the State may 

grant relief with a variance to an 

individual discharger if the applicant 

demonstrates that meeting the criterion 

would cause substantial economic 

hardship [likely substantial loss of 

productivity, jobs and/or financial 

stability), the variance's requirements 

are as close to the criterion as the 

applicant's financial situation will allow 

without substantial economic hardship, 

the variance will not eliminate existing 

uses or preclude eventual attainment of 
HeinOnline -- 47 Fed. Reg. 49245 1982

Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 49245 

the disignated use, the variance does not 

exceed the time for which an NPDES 

permit is issued, the variance does not 

exempt a discharger from compliance 

with other criteria in the water quality 

standards which are attainable, and the 

variance does not result in more 

stringent pollution control requirements 

for other parties. 

Public Hearing 

Prior to adding, removing or modifying 

any use, the State must hold a public 

hearing. The analyses and supporting 

documentation prepared in conjunction 

with the proposed water quality 

standards revision should be made 

available to the interested public prior 

to the hearing. This will allow for open 

debate among scientific peer groups of 

the evidence and analysis supporting 

the revised water quality standard. 

Should the standard be changed? 

At this point in the water quality 

standards review and revision process, 

States have adequate information to 

evaluate the impacts of their decision to 

maintain, revise, or modify the water 

quality standard for a particular water 

body: The following questions will have 

beeri answered: 

1.- What is the use to be protected? 

2. To what extent does pollution 

contribute to the impairment of the use? 

3. What is the level of point source 

pollution control necessary to restore or 

enhance the use? 

4. What is the level of nonpoint source 

pollution control necessary to restore or 

enhance the use? · 

5 .. Does the cost of attaining and 

protecting the use•bear a reasonable 

relationship to the benefits? 

standards program. The framework 

reflects the experience gained in the 

program by both EPA and the States and 

provides a more balanced State-Federal 

partnership than has been true in recent 

years. 

The proposed regulation and 

accompanying guidance clearly 

distinguish between discretionary and 

mandatory requirements. The 

mandatory requirements are few and 

are summarized below. 

• Water quality standards must 

include designated beneficial uses, 

criteria to protect the designated uses 

and an antidegradation policy statement 

(see § 131.5)); 

• Uses attained must be maintained 

unless a use requiring more stringent 

criteria is added (see § 131.10(c)); 

• Any methods used and analyses 

conducted to support water quality 

standards revisions or additions must be 

submitted to EPA. (see§ 131.10(e)); 

• Water quality standards revisions 

must be accompanied by a certification 

from the State Attorney General that the 

standards were duly adopted pursuant 

to State law (see § 131.5(£)]: 

• In reviewing and revising State 

water quality standards, a State must 

hold public hearings and provide for 

public comment in accordance with 

State law and EPA's public participation 

regulations (40 CFR Part 25) tsee 

§ 131.20(b)); 

• States must submit the results of 

their water quality standards review to 

EPA within 30 days of adoption of the 

revised standard or if no revisions are 

made as a result of the review, within 30 

·days of the completion of the review 

(see § 131.20(c)): 

• The Regional Administrator must 

review and approve or disapprove any 

officially adopted revisions to State 

water quality standards for compliance 

In addition, there will have been 

debate and discussion of the findings 

among those affected by the decision. 

EPA will also have enough information 

to adequately review a State's water 

quality standard revision. 

D. State/Federal Rules 

- with requirements of the Act within 60 

or 90 days, respectively, of submission 

(see § 131.21(a)); 

The roles and responsibilities of the 

States and EPA in the water quality 

standards program have been the 

subject of much debate and court 

litigation. The Act clearly establishes 

that the States are responsible for 

setting, reviewing and revising, if 

appropriate, water quality standards. 

The Administrator has the authority to 

review and approve or disapprove State 

standards to ensure that they are 

consistent with the Act, and where 

necessary, to promulgate new or revised 

standards. 

The proposed revision of the water 

quality standard regulation outlines a 

flexible framework in which States may 

1 

refine and implement an effective 

• In di!lapproving a State's water 

quality standards, EPA must provide an 

~ffirmative demonstration and 

explanation of why State standards are 

not in compliance with the Act (see 

§ 131.21(a)(2)]; and 

• In promulgating water quality 

standards, the Administrator must 

adhere to the same policies and 

procedures as the States (see 

§ 131.22(c)]. 

EPA retains the responsibility to 

review the appropriateness of State 

adopted criteria to protect the 

designated uses, to assure the uses 

designated comply with Sections 101(a) 

and 303(c] of the Act, and to assure that 

States adhere to the legal and 

administrative procedures outlined in 

the proposed regulation. 

If States submit their revisions with 

the type of analyses recommended in 

the proposed regulation and in 

accordance with the proper legal 

procedures, EPA will have adequate 

information to review the 

appropriateness of any revisions. The 

States are urged to consult early and 

frequently with EPA as the analyses and 

assessments are initiated and carried 

out. If States submit revisions to their 

water quality standards without the 

optional analyses, EPA may question 

the appropriateness of the revisions. 

While EPA's authority to review and 

approve State water quality standards 

applies to all surface waters; EPA 

expects to take a more active role in 

working with States on water segments 

involving interstate and international 

boundaries. This will ensure that the . 

uses and/or criteria are consistent 

throughout the body of water and that 

downstream uses are protected. 

E. State Resource Impacts 

The framework for the water quality 

standards program in the proposed 

regulation is flexible. Depending on the 

State's re_sources and priorities, a State 

may tailor its water quality standards 

program to fit existing resources. 

The scope and detail of the optional 

analyses outlined in the regulation will 

vary depending on the type of water 

body, the POTWs and the industries 

impacting the water body, and the 

pollutants involved. EPA is 

recommending that States select only 

their high priority water quality limited 

segments for intensive review. For many 

segments, the needed information may 

be readily available from 208 Water 

Quality Management Plans, 305(b) 

Reports, local governments, industry or 

environmental groups. In other cases, 

stream surveys, sampling, modeling and 

cost and economic impact projections 

will require significant resource 

expenditures. 

The key is for States to use existing 

information effectively and to mobilize 

the resources of the State and 

community-at-large. Even where State 

water quality agencies have not · 

previously conducted benefit-cost 

assessments, States have economists, 

water resource and community 

development agencies, and fish and 

game departments with expertise to 

draw upon. In addition, with the 

increased flexibility of the States to 

modify criteria and uses, the municipal 

and industrial sector has an incentive to 

support the State with data and 

information. For these reasons the 
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49246 Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 

Agency believes that the water quality 

standards program outlined in the 

proposed regulation canoe implemented 

by the States within their existing 

resources. 

F. Regulatory Impact Analysis and 

Regulatory Flexibility Analysis and 

Paper Work Reduction Act 

Requirements 

Under Executive Order 12291, EPA 

musi judge whether a regulation is 

"major" and therefore subject to the 

requirement of a Regulatory Impact 

Analysis. This proposed regulation is 

not major because it imposes no new 

obligations on the industrial sector. If 

adopted, the proposed regulation will 

increase the ability of the States to 

change unattained uses to uses requiring 

less stringent criteria and to modify 

criteria where uses have been attained. 

It is anticipated that this will in fact 

reduce future pollution control costs 

below those which would be required 

under the existing regulation. 

This notice was submitted to the 

Office of Management and Budget for 

review as required by Executive. Order 

12291. Any comments from OMB to EPA 

and any EPA response to those 

comments are available for public 

inspection through contacting the person 

listed at the beginning of this notice. · 

. Under the Regulatory Flexibility Act, 5 

U.S.C. Section 601 et seq., EPA must 

prepare a Regulatory Flexibility 

Analysis for all proposed regulations 

that have a significant impact on a 

substantial number of small entities. 

EPA has determined that, for reasons 

discussed above, this rule does not have 

significant adverse impact on small 

entities. The reporting or recordkeeping 

(information) provisions in this rule 

have been submitted for approval to the 

Office of Management and Budget 

(OMB) under Section 3504(b) of the 

Paperwork Reduction Act of 1980. U.S.C. 

3501 et. seq. Any final rule will explain 

how its reporting or recordkeeping 

provisions respond to any OMB or 

public comments. 

List of Subjects in 40 CFR Part 131 

Water pollution control. 

Intergovernmental relations, 

Administrative practices and 

procedures, Reporting and record 

keeping. 

Dated: October 8, 1982. 

Anne M. Gorsuch, 

Administrator. 

It is proposed to amend 40 CFR 

Chapter I a11 follows: 

PART 35-STATE AND LOCAL 

ASSISTANCE 

PART 120-WATER QUAliTY 

STANDARDS 

§ 35.1550 [Removed] 

1. Section 35.1550 is removed. 

§§ 120.1·120.3 [Removed] 

2. Sections 120.1 through 120.3 are 

removed. 

§§ 120.10, 120.12 and 120.34 

[Redesignated as Subpart D, §§ 131.30, 

131.31, and 131.32, respectively] 

3. Sections 120.10, 120.12, and 120.34 

are proposP.d to be redesignated as 

Subpart D, Part 131, 131.30, 131.31 and 

131.32, respectively. 

4. Sections 120.27, 120.37, 120.43 and 

120.45 are removed. 

5. Part 131 is added as set forth below: 

A. The table of contents for Part 131 is 

added as follows: 

PART 131-WATER QUALITY 

STANDARDS 

Subpart A-General Provisions 

Sec. 

131.1 Scope. 

131.2 Definitions. 

131.3 State Authority. 

131.4 EPA Authority. 

131.5 Minimum requirements for water 

quality standards submission. 

Subpart B-Establlshment of Water Quality 

Standards 

131.10 Designation of uses. 

131.11 Analyses for changing or modifying 

uses. 

131.12 Criteria. 

131.13 General policies. 

Subpart e-state Review and Revisions of 

Water Quality Standards 

131.20 State review and revision of water 

quality standards. 

131.21 EPS review and approval of water 

- quality standards. 

131.22 EPA promulgation of water quality 

standards. 

Subpart D-Federally Promulgated Water 

Quality Standards 

131.30 Alabama. 

131.31 Arizona. 

131.33 Mississippi. 

Authority: Clean Water Act, Pub. L. 92-500, 

as amended; 33 U.S.C. 1251 et seq. 

B. Subparts A through C are added as 

set forth below: 

Subpart A-General Provisions 

§131.1 Scope. 

This part describes the requirements 

and procedures for developing, 

reviewing, revising and approving water 

quality standards by the States as 

authorized by Section 303(c) of the 

Clean Water Act. 

§ 131.2 Definitions. 

(a) "The Act" means the Clean Water 

Act (Public Law 92-500, as amended, (33 

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

(b) "Criteria" are elements of State 

water quality standards and represent a 

constituent concentration or level 

associated with a degree of 

environmental effect upon which 

scientific judgment may be based. When 

a criterion for a constituent is not 

exceeded, water quality will generally 

protect the designated use. A criterion, 

in some cases, may be a narrative 

statement instead of a constituent 

concentration. 

(c) "Section 304(a) criteria" are 

information developed by EPA under 

authority of Section 304(a) of the Act. 

This information is issued periodically 

to the States as guidance·for use in 

developing criteria. 

(d) "Uses" are the beneficial uses of a 

particular body of water. 

(1) "Attain" means to achieve a use of 

a water body. 

(2) "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. 

(3) "Designated uses" are those uses 

specified for each segment in water 

.quality standards, whether or not they 

are being attained. 

(e) "Water quality standards" are 

provisions of State or Federal law which 

consist of a designated use or use for a 

water body and criteria to support those 

uses. Water quality standards are to 

protect the public health or welfare, 

enhance the quality of water and serve 

the purposes of the Act. 

(f) "States" include: the 50 States, the 

District of Columbia, Guam, the 

Commonwealth of Puerto Rico, Virgin 

Islands, American Samoa, the Trust 

Territory of the Pacific Islands, and the 

Commonwealth of the Northern Mariana 

Islands. 

§ 131.3 State authority. 

States are responsible for establishing 

and revising water quality standards. 

Under Section 510 of the Act, States may 

develop water quality standards more 

stringent that required by this 

regulation. 

§ 131.4 EPA authority. 

Under Section 303(c) of the Act, EPA 

is to review and approve State-adopted 

water quality standards. This review 

involves a determination: (a) that the 

State has adopted water uses which are 
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Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 49247 

consistent with the requirements of the 

Clean Water Act; (b) that the State has 

adopted criteria to protect the 

designated water uses; [c) that the State 

has followed its legal procedures for 

establishing or revising standards; and 

[d) that the State standards decisionmaking process is based upon 

appropriate technical and scientific data 

and analyses. EPA must disapprove the 

standards and promulgate Federal 

standards under Section 303(c)(4) of the 

Act, if State adopted water quality 

standards do not meet the requirements 

of the Act. EPA may alao promulgate a 

new or revised standard where 

necessary to meet the requirements of 

the Act. 

§ 131.5 Minimum requirements for water 

quality standards submission. 

The following elements must be 

included in each State's water quality 

standards submitted to EPA for review: 

(a) Use designations consistent with 

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

303( c)(2) of the Act. 

(b) Methods used and analyses 

conducted to support water quality 

standards revisions. 

(c) Water quality criteria sufficient to 

protect the designated uses. 

(d) An antidegradation policy 

statement on maintaining existing uses. 

[e) Certification by the State Attorney 

General that the water quality standards 

were duly adopted pursuant to State 

law. 

[f) Gen·eral information which will aid 

the Agency in determining the adequacy 

of the scientific basis of the standards 

as well as information on general 

policies applicable to State standards 

which may affect their application and 

implementation. 

Subpart a-Establishment of Water 

Quality Standards 

§ 131.10 Designation of uses. 

(a) Each State must specify 

appropriate water uses to be achieved 

and protected. The classification of the 

waters of the State must take into 

consideration the use and value of water 

for public water supplies, protection and 

propagation of fish, shellfish and 

wildlife, recreation in and on the water, 

agricultural, industrial, and other 

purposes including navigation. 

[b) States may adopt subcategories of 

the aquatic protection use to reflect 

varying needs of different aquatic 

communities. 

(c) States must develop and adopt a 

statewide antidegradation policy to 

maintain existing water uses. 

(d) At a minimum, uses are deemed 

attainable if they can be achieved by the 

imposition of effluent limits required 

und~r Section 301(b) (1) and (2) cf the 

Act (including modifications uncle;· 

Section 301(c) of the Act) and costeffective and reasonable best 

management pra:;tices for non11Ji;::~ 

source control. 

(e) States are encouraged to canduct a 

use attainability analys;a and a benefit 

cost assessment, if appropriate, when 

revising a denignated use of a watar 

body or any portion thereof. These 

analyses are described in § 131.11. 

States may also choose other 

appropriate analyses. 

(f) Prior to adding, removing or 

modifying any use, the State shall 

provide notice and an opportunity for a 

public hearing under§ 131.20(b) of this 

regulation. 

(g) States are encouraged to adopt 

seasonal uses as an alternative to 

reclassifying a water body or segment 

thereof to uses requiring less stringent 

water quality criteria. If seasonal uses 

are adopted, water quality criteria 

should be adjusted to reflect the 

seasonal uses. 

(h) St~tes may modify or reclassify a 

designated use which is not an existing 

use as defined in § 131.2, if the State 

determines that attaining the use is not 

feasible because: 

(1) Naturally occurring pollutant 

concentrations prevent the attainment of 

the use; or · 

(2) Natural, ephemeral, intermittent or 

low flow conditions or water levels 

prevent the propagation or survival of 

fish and other aquatic life, unless these 

natural conditions may be compensated 

for by the discharge of sufficient volume 

of effluent discharges without violating 

State water conservation requirements 

to enable uses to be met; or 

(3) Human caused conditions or 

sources of pollution cannot be remedied 

or would cause more environmental 

damage to correct than to leave in place; 

or 

(4) Dams, diversions or other types of 

hydrologic modifications interfere with 

the attainment of the use, where it is not 

feasible to restore the water body to its 

original condition or to operate such 

modification in a way that will maintain 

the use; or 

(5) Physical conditions unrelated to 

water quality preclude attainment of the 

use; or 

(6) Benefit§ of attaining the use do not 

bear a reasonable relationship to the 

costs. 

(i) States may not modify or reclassify 

designated uses if: 

(1) They are existing uses as defined 

in § 131.2 unless uses requiring more 

stringent criteria are added; or 

(2) Uses will be attained by 

implementing effluent limits required 

under Sections 301(b) (1) and (2) of the 

Act (including modifications under 

Section 301(c) o:: the Act); or 

(3) Uses will be attaiHed by 

implementing cost-effective and 

reasonable best management practices 

for nonpoint source control; or 

(4) The revision is based on 

anticipated growth; or 

(5) The revision would result directlyor indirectly in impairment of 

downstream uses. 

§ 131-.11 Analyses for changing or 

modifying uses. 

(a) Use Attainability Analysis. A use 

attainability analysis should be 

sufficiently detailed to determine: 

(1) The use to be protected. 

(2) The extent to which pollution 

contributes to the impairment of the use 

versus other factors listed in § 131.10 

and the improvement likely to occur in 

the absence of pollution; 

(3) The extent to which control of 

pollution from point sources will restore 

or enhance the use, including plans to 

implement the controls; 

(4) The extent to which the control of 

nonpoint source pollution will restore or 

enhance the use, including plans to 

implement feasible nonpoint source 

controls. 

[b) Benefit-Cost Assessment A 

benefit-cost assessment should: 

(1) Identify the incremental benefits 

and costs of attaining a use, after 

meeting the technology-based 

requirements of the Act, to determine 

whether the benefits bear a reasonable 

relationship to the costs; 

(2) Describe the value of the water 

body for a use including the social and 

economic value of the use, the public 

interest in establishing or maintaining 

the use, the public benefited, the extent 

to which another incompatible use is 

already being made of the water body, 

the availability of alternatives and the 

effect on downstream uses; 

(3) Describe the significance of the 

benefits in comparison to the costs and 

economic impacts of attaining the use. 

§ 131.12 Criteria. 

(a) Inclusion of pollutants 

(1) States must adopt water quality 

criteria that are compatible with 

protecting a designated use. 

(2) Toxic Pollutants-States, with the 

assistance of EPA, are encouraged to 

review water quality data and 

information on discharges to identify 

specific water bodies where toxic 

pollutants may be adversely affecting 

the attainment of the designated water 
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49248 Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 

use. and where appropriate to adopt 

criteria for such toxic pollutants 

applicable to the water body so as to 

protect the designated use. 

(b) Form of criteria: In establishing 

criteria, States should: 

(1) Establsih numerical values based 

on: 

(i) 304(a) Guidance; or 

(ii) 304(a) Guidance modified to reflect 

site-specific conditions; or 

(iii) Other scientifically defensible 

methods; 

(2) Employ bioassay or biological 

criteria if appropriate; and 

(3) Establish narrative descriptionli 

where numerical values cannot be 

established or to supplement numerical 

values. 

Note.-EPA recommends establishing 

numerical values wherever practical. 

(c) Determination of levels necessary 

to protect uses. 

(1) States shall adopt water quality 

criteria at levels that are adequate to 

support the designated uses. EPA shall 

review whether the criteria are 

appropriate to support the designated 

use(s). For waters with multiple use 

designations, the criteria shall support 

the most sensitive use 

(2) States may select what they 

believe to be an appropriate risk level 

for pollutants identified as carcinogens 

and include in their water quality 

standards the ambient criteria 

associated with the particular risk level 

selected. 

(3) States shall establish water quality 

criteria which protect downstream 

water uses (see § 131.10(i)(5)). 

§ 131.13 General policies. 

(a) In addition to the mandatory 

requirements of adopting uses and 

criteria, States may. at their discretion, 

adopt policies generally applicable to 

the State's water quality standards. 

States are encouraged to adopt the 

discretionary policies listed below but 

may also adopt other general policies. 

(b) Mixing Zones: A limited mixing 

zone, serving as a zone of initial dilution 

in the immediate area of a point or · 

nonpoint source of pollution, is allowed 

as a matter of State discretion. The 

mixing zone should be considered a 

place where wastes and water mix and 

not as a place effluents are treated. 

Mixing zones should not interfere with 

existing or designated uses of the 

segment. Water quality standards 

should describe the State's methodology 

for determining the location, size. shape, 

outfall design and in-zone quality of 

mixing zones, with sufficient precision 

to support such regulatory actions as 

issuance of permits and determination 

of best management practices for 

nonpoint sources. 

(c) Variances: States may grant 

variances to an individual discharger 

from compliance with a water quality 

criterion based on economic hardship, if: 

(1) The applicant demonstrates that 

meeting the criterion would cause 

substantial economic hardship (likely 

substantial loss of productivity, jobs, 

and/or financialstability),and 

(2) The variance requirements are as 

close to the criterion as the applicant's 

financial situation will allow without 

substantial economic hardship, and 

(3) The variance will not eliminate 

existing uses or preclude eventual 

attainment of the designated uses not 

currently being attained, and 

(4) The variance does not exceed the 

time for which the discharger's NPDES 

permit is issued, and 

(5) The variance does not exempt a 

discharger from compliance with other 

criteria in the water quality standards 

which are attainable, and 

(6) The variance does not result in 

more stringent pollution control 

requirements for other parties. 

(d) Low flow exemptions: States may 

establish exemptions from compliance 

with water quality standards during 

critical low flow conditions. 

Subpart C-Procedures for Review 

and Revision of .Water Quality 

Standards 

§ 131.20 State review and revision of 

water quality standards. 

(a) State Review: States shall review 

and, as appropriate, revise their water 

quality standards at least once during 

each three year period beginning with 

the enactment of the Federal Water 

Pollution Control Amendments of 1972. 

States are not required to review or 

revise water quality standards for all 

water bodies in the State in any three 

year period to comply with the 

requirements of this regulation and 

Section 303(c)(1) of the Act. It is 

recommended that States select priority 

water bodies or segments for review. In 

selecting priorities, States should take 

into account the "Municipal Waste 

Water Treatment Construction Grant 

Amendments of 1961" (Pub. L. 97-117, 

December 29, 1961). Section 24 of the 

amendments is intended to ensure that 

water quality standards influencing 

contruction grant decisions have been 

reviewed in accordance with Section 

303(c) of the Act. It prohibits the award 

of a grant after December 29, 1964, 

unless the State has completed its 

review of the water quality standards 

for any segments affected by the grant 

project. 

(b) Public Participation: The State 

shall provide for public participation in 

selecting priority areas and shall hold a 

public hearing for the purpose of 

reviewing water quality standards. in 

accordance with provisions of State law. 

EPA's water quality management 

regulation (40 CFR 130.3(b)(6)) and 

public participation regulation (40 CFR 

Part 25). The proposed water quality 

standards revision and supporting 

analyses shall be made available to the 

public prior to the hearing. 

(c)Submjttal to EPA. The State shall 

submit the results of the review, any 

supporting analysis for the use 

attainability analysis and benefit-cost 

assessment, if performed, the 

methodologies used for site-specific 

criteria development, any general 

policies applicable to water quality 

standards and any revisions of the 

standards to the Regional Administrator 

for review and approval. within 30 days 

of adoption of the revised standard, or if 

no revisions are made as a result of the 

review, within 30 days of the completion 

of the review. 

§ 131.21 EPA review and approval of 

water quality standards. 

(a) After the State submits its 

officially adopted revisions, the 

Regional Administrator shall either: 

(1) Notify the State within 60 days 

that the revisions are approved, or 

(2) Notify the State within 90 days 

that the revisions are disapproved. Such 

notification of disapproval shall specify 

the changes needed to assure 

compliance with the requirements of the 

Act and this regulation, and shall 

explain why the State standard is not in 

compliance with such requirements. Any 

new or revised State standard must be 

accompanied by some type of 

supporting analysis. 

(b) The Regional Administrator's 

approval or disapproval of a State water 

quality standard shall be based on the 

requirements of the Act as described in 

Section 131.4. 

(c) A State water quality standard 

remains in effect, even though 

disapproved by EPA, until the State 

revises it or EPA promulgates a rule that 

supersedes the State water quality 

standard. 

(d) EPA shall. at least annually, 

publish in the Federal Register a notice 

of approvals under this section. 

§ 131.22 EPA promulgation of water 

quality standards. 

(a) If the State does not adopt the 

changes specified by the Regional 

Administrator within 90 days after 

notification of the Regional 
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Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 49249 

Administrator's disapprovat:'the 

Administrator shall promptly publish 

such changes as a proposed regulation. 

(b) The Admmistrator may also 

publish a proposed 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. 

(c) In promulgating water quality 

standards, the Administrator is subject 

to the same policies, procedures and 

analyses established for States in 

subpart B of these regulations. 

Appendix A-Response to Public 

Comments 5 

On July 10, 1978, EPA published an 

Advanced Notice of Proposed 

Rulemaking (ANPRM) that set forth the 

Agency's preliminary thoughts on a 

revised approach for a water quality 

standards program. EPA invited 

comments on a number ofissnes. A total 

of 110 sets of comments from 100 

different agencies, organizations, and 

interest groups were received in 

response to the ANPRM. The issues, a 

summary of the public comments, and 

EPA's response to these comments are 

set forth below. 

A. Attainability of Uses 

1. Issue raised by EPA: Should EPA's 

policy of discouraging downgradings 

and encouraging upgradings be further 

refined and/or explained in regulations? 

Public Comment: There was 

disagreement as to whether EPA's 

policy on upgrading and downgrading 

should be further refined. Roughly twothirds of the comments urged EPA to 

clarify its position through amended 

regulations. Of the thirteen comments 

which maintained that no further 

refmement was necessary, six were 

based on the premise that the policy 

was unacceptable and refinement was 

irrelevant. 

Response: The revised regulation 

·requires that uses which are attained 

are to be maintained. Designated uses 

which cannot be attained with effluent 

limits required by Section 301(b) (1) and 

(2) of the Act, or with cost effective and 

reasonable best management practices 

for nonpoint sources, may be changed if 

the State determines that the use is 

unattainable based on environmental 

and/or physical factors or because the 

benefits do not bear a reasonable 

relationship to the costs. 

Public Comment: Many individuals 

and organizations wanted States to 

• Appendix A will not appear in Title 40 of the 

Code of Federal Regula lions. 

retain sufficient flexibility to be able to 

reclassify streams on a case by case 

basis. Some were concerned that small 

streams ·were placed in an inappropriate 

use classification because of the lack of 

data. Therefore, States needed the 

flexibility to reclassify those streams as 

more data became available. Others 

were concerned that the decision to 

change uses could only be made based 

on socio-economic and natural factors 

which had never been defined. 

Response: EPA agrees. The proposed 

regulation encourages the review of 

standards on a site-specific basis, and 

revision, if appropriate. 

Public Comment: Several respondents 

argued that some water bodies will 

never be able and should not be 

required to meet the "fishable/ 

swimmable" use classifications. In 

adi:lition, these use designations are not 

required for all water bodies under the 

Clean Water Act. Effluent dominated 

stream segments in highly industrial 

areas, streams in arid regions of the 

Southwest, or man-made water bodies 

were cited as examples of water courses 

which could not reasonably meet the 

"fishable/swimmable" use 

classifications. 

Response: EPA agrees that some 

water bodies will not be able to meet 

aquatic protection and recreation uses. 

The proposed regulation provides for an 

analysis of the attainability of these 

uses on a case-by-case basis. However, 

EPA does not agree that a determination 

of whether aquatic protection and 

recreation uses are attainable can be 

made on a nationwide basis for any 

class of water bodies, such as effluent 

dominated streams, streams in arid 

regions, or man-made water bodies. 

2. Issue raised by EPA: The ANPRM 

suggested a change in the aottainability 

test requiring States to demonstrate that 

nonpoint sources were being controlled 

to the maximum extent feasible. 

Public Comment: Several respondents 

stated that in order to demonstrate 

whether nonpoint sources have been 

controlled to the maximum extent 

feasible, one must have knowledge of 

the extent of the nonpoint source 

problem as well as the effectiveness of 

control measures. Many felt that 

although the knowledge in this area is 

improving, it is still inadequate. 

Response: The regulation requires 

consideration of non point source 

impacts to the extent that cost-effective 

and reasonable best management 

practices for nonpoint source control 

can be implemented. 

3. Issue raised by EPA: Should EPA 

add the condition that down-gradings 

would only be allowed if the costs of 

attaining "fishable/swimmable" waters 

bear "no reasonable relationship" to the 

resulting benefits? 

Public Comme11t: Eighteen persons 

responding to this question favored the 

addition of the "no reasonable 

relationship" condition while twentyfour opposed it. Eight persons suggested 

that these terms be defined before the 

condition is added to the regulations, 

and that some clarification be given 

concerning how the relationships are to 

be measured. Other comments offered 

did not favor the provision because the 

relationship is too difficult to measure 

and the test is unnecessarily rigid. 

Several objected to the proposal on the 

grounds that it would be too expensive 

for States to justify changes. Several 

were concerned that this test would be 

difficult to conduct and that results 

would not be conclusive since no means 

of accurately measuring costs and 

benefits of pollution controls are 

available. An additional concern was 

that no definition of "reasonable 

relationship" is commonly accepted. 

Response: States may determine 

whether the benefits of significant water 

improvements do (or do not) bear a 

reasonable relationship to the costs. 

4. Issue raised by EPA: If costs and 

benefits are to bear a reasonable 

relationship should more explicit 

guidance be provided? 

Public Comment: Of the twenty-two 

respondents who answered this 

question, all but one said that EPA 

should provide more explicit guidance 

on the proposed test. 

Respo11se: EPA is providing additional 

guidance on a benefit-cost assessment. 

However, EPA will not define for States 

what is a reasonable relationship 

between costs and benefits. It is a 

subjective decision and one in which 

considerations other than costs may 

have an overriding influence. EPA 

believes that the determination of what 

is a "reasonable relationship" should be 

made by the State after an opportunity 

for public comment. 

B. Criteria Development 

1. Issue Raised by EPA: Should EPA's 

policy of disapproving State standards 

which contain pollutant concentration 

limits less stringent than EPA's Section 

304(a) criteria (absent adequate 

technical justification) be further refined 

and/or explained in regulations? 

Public Comment: Thirty-two persons 

responded affirmatively to the question 

and of those, ten suggested that 

guidance was especially needed on the 

subject of EPA's criteria for accepting or 

rejecting standards. 

Response: EPA rescinded its policy of 

presumptive applicability of Section 
HeinOnline -- 47 Fed. Reg. 49250 1982

49250 Federal Register I Vol. 47, No. 210 / Friday, October 29, 1982 I Proposed Rules 

3D·~[ a) c>iteria guidanLiJ on t.:over.!~er 28. 

1980, in 45 FR 79320. The pwposeL: 

regu!~,·~on and pre~IT'bl2 clari~y th•,~ und 

e;1c:;u• ~<JP. the s2a;ng of site- :Jv::: ~c 

cri!eria. · 

Pu:·:r~: r:w,:Inent: EPA :ohoul:l s; l" '."y 

thr. ~ec!mical requirements of ot~£<1T•'ng 

dev;;,:t;cJns from national critiera. 

Re·p-JT•sP.: EPA has deve:'lpr.d 

guidan~~:..; for setting c.rii.e::ia to ;Efi···: 

sih;·E;>,:cifr. conclitiuns and will 

cor ~lr;-•~ to deYelop altern ali\ e 

proccc' ""'£"!. Pu-~li.:J Comment: States should 1

1<11:e 

authority to S'2!t water qwity stanlu.rds 

and EPA should limit itD role to guid;mce 

only. 

Re,:p;;r;ge: SPction 303(c) of the •

11.r:t 

requir.!s EPA to review and approve 

State s:<:ndards and to promulgah! 

stnndards if State standards are not 

consistent with the applicable 

requirements of the Act. A~> part of the . 

review of State water quality standards, 

EPA will evaluate whether the critPria 

propom~d will protect the uses 

designated. 

Public Comment: Some commentrrs 

argued that the burden of proof should 

fall on EPA, rather than on the StateR, 

and that the Agency should have to 

justify that the national criteria are 

applicable to particular streams in each 

State. 

Response: The States provide the 

justification for the criteria includ1!d in 

their standards. The States make the 

initial determination whether Sectton 

304(a) criteria or some other critieria are 

appropriate for protecting a use in a 

particular water body. National criteria 

are not presumed to be applicable. 

2. Issue Raised by EPA: Should thls 

"presumptive applicability" be 

continued with respect to the upcoming 

critiera for the 65 toxic pollutants? 

Public Comment:Three-quarteru of 

the letters on this question maintained 

that EPA should apply the sume policy 

on State standards to toxic substances. 

Two of the twenty-five letters 

expressing this opinion qualified t:twir 

position, maintaip.ing that the polil:y be 

extended to toxics only in those cases 

where sufficient data are ava~:ab1c. 

Response: EPA abolisheJ rathc1 ti1an 

extended the policy of presumptive 

applicability. 

3. Issue raised by EPA: What 

fundamentally different factors reiaiing 

to specific waters of a State n;;ght 

provide rational grounds fn justif:;inJ u 

deviation from the criteria in Section 

304(a)? 

Pubfjc CommenL· Respm~rlcnts to the 

ANPRM suggested many different 

factors which might provide grounds for 

justifying a deviation from tl:e national 

criteria. Several factors noted moF.t 

frequently by com:nun1t;rs ir.c!udcJ 

existing wutcr quality p;~;·nmelers such 

as pH, dissolved oxyP,En and chemical 

comj)osition, naturt~l backgcound data 

on flow mtds, precipitation and climate, 

and mHn-rnade natural How 

obstructjppo;, 

RPSfl'!f'c:·•: Site-spccifi:: evidence that 

aquatic <;;::r·ie'l h,•ve adC'pted to 

differw.:: l:J(llllltant concentratirms, new 

laboratory cr·t'3, and differences in a 

site's ~··;;~::;· '.::.e1lity, such as pH and 

hardnns, t~; .. t might affect the toxicity 

of a j':Jll' ,:T·~ it· e Bmong the factors thdt 

will justify o different t:rih;rion. In 

adui''''", wlr~rL ill:! rncflt sensitive 

species Ubl:t il; the l!lelhodology to 

deriva the Sc.:t;cn 304(a) guidance are 

not indigenoun iocul species and other 

species are IH.tbstituted in the 

methodology, the criterion for a 

particular pallui,mt may also change. 

Naturul background and flow data are 

also useful ir1 determining whether a 

particular use is attainable, as well as 

for determining the criteria that are 

necessary to protect the use. 

4. Issue raised by EPll: How much 

"proof' should EPA demand before 

allowing a deriation? 

Public Commtmt: Acr.ording to the 

majority of comments to this question in 

the Al\PRM, EPA should avoid imposing 

excessive requirements concerning the 

amount of proof which must be provided 

by States which seek deviations from 

national water qualiiy criteria. Six 

individuals argued that the question is 

improper, since the burden of proof 

actually lies with E.'PA to justify its · 

criteria. Thrre others maintained that no 

proof whatsoever is needed since State 

standards sho"ld Le Bccepted as 

submitted to EPA. Six maintained that 

no specific le'l.·el should be set since the 

amount of proof to be supplied will vary 

on a case-by-case basis. Several 

individuals suggesterl that profem;ional 

judgment raih<·r than set rules be 

utilized in t-h:iermining what constitutes 

adequate jJroof. Nut all commenters 

agreed. Fu..:1' sug:-4ei>terl thut extensive 

Scicutifi.; dOt:UiilCHtatiOil should Ue 

required of States. 

Response: EPA has nnt mandated that 

States submit extensive data in 

justifying criteria othel' than Section 

304{a) criteria. The .J41Gnn+ of effort 

needed to justify r,riterln will vnry, 

depending on tlt~ r1ethodology seler,ted. 

EPA is working with s~n:ral States to 

test pmcerltm:s fo.~ uetting sitc-Rpecific 

criteria for particular pollutnnt'l. The 

procedures are neither exr:estive!y 

complicn te'J nor expensive. 

C. Toxic Poll!l!unt:; {.l?espun::;a followii 

Issue #7 belc:w} 

1. Issue raised by EPA: If EPA 

publishes a list of Section 304!a) criteria 

pollutants for which water quality 

stand=u-ds must be c1eveloped, should all 

Quality Criteria for Water fRed Bnok) 

and 65 toxic pollutants be included? 

Public Comment: Responses to this 

question were overwhelmingly negntive. 

Of the fifty-five respondents who 

answered this r;uestion, only five 

suggested tl].ut all of the Red Book and 

65 toxic polh:tants be included on :a list 

of criteria pollutants. 

2. Issue raised by EPA: What factors 

should EPA consider in determining the 

pollutants to be included? 

Public Comment: The comments 

suggested a variety of factors which 

EPA should consider in determining 

which substances should be listed. The 

most frequently identified factors were 

completeness of data, persistence, 

toxicity, effects on human health and 

animal life, and natural background 

pollution. 

3. Issue raised by EPA: Should 

completeness of the data base be a 

factor? 

Public Comment: According to the 

majority of comments to this question, 

completeness of data should be 

considered by EPA in selecting 

substances for inclusion on the pollutant 

list. Of the fifty-two persons who 

answered this question, all but six 

responded affirmatively. Two who 

differed from the majority argued that 

incomplete data should not be used as 

an excuse for allowing discharges of 

toxics. Another maintained that no data 

set is perfect. 

4. Issue raised by EPA: Should the 

degree of a pollutant's persistence, 

toxicity, or potential for carcinogenicity 

be a factor? 

Public Comment: The degree of a 

pollutant's persistence, toxicity, or 

potential for carcinogenicity should be 

considered by EPA according to a very 

large proportion of the comments on this 

question. All but three of the forty-eight 

persons who answered this question 

urged that consideration be given to 

these factors. 

5. Issue raised by EPA: Should EPA 

distinguish between polluta'lts which 

harm aquatic life and those which harm 

humans? 

Public Com.11ert: In determining 

which substances sho:.~ld be included in 

State water qu:1li.ty standards, EPA 

should distinguish between pollutants 

which harm aquatic life and those which 

harm humans. This was the opinion of 

all but five of the forty-two persons who 
HeinOnline -- 47 Fed. Reg. 49251 1982

Federal Register I Vol. 47, No. 210 I Friday, October 29, 1982 I Proposed Rules 49251 

answered question A(5) in the ANPRM. 

Several qualified their position, 

maintaining that the primary emphasis 

should be onprotecting human health. 

Others urged that harm to aquatic and 

human life be distinguished, but that 

criteria provide for the protection of 

both. 

6. Issue raised by EPA: How much 

time should States be given to develop 

new water quality standards in response 

to the new lists? 

Public Comment: The forty-four 

commenters who answered this 

question proposed a wide range of time 

limits, ranging from less than one year to 

more than three years. The most 

frequent response was three years, with 

the large majority of suggestions falling 

between one and three years. 

Several disagreed with the notion of 

any set time period. The time frame, 

they argued, should be variable 

depending on the good faith efforts and 

natural environmental characteristics of 

the State. One individual suggested that 

EPA sign agreements with individual 

States rather than require all States· to 

meet an arbitrary deadline. 

7. Issue raised by EPA: Should EPA 

directly propose any or all of the Section 

304(a) criteria without waiting for State 

action? 

Public Comment: According to all but 

four of the forty-five persons who 

answered this question, EPA should not 

directly propose any or all of the Section 

304(a) criteria pollutants without waiting 

for State action. 

Response: EPA is not requiring that 

any or all of the Red Book and the 65 

toxic pollutants be included in State 

water quality standards. All States 

include in their water quality standards 

the following pollutant and water 

quality characteristics: dissolved 

oxygen, temperature, pH, aesthetic 

qualities and fecal coliform bacteria. 

States are encouraged to develop 

criteria for toxic pollutants to include in 

State standards if the toxic pollutants 

preclude the attainment of the 

designated use and if the State believes 

that the use remains applicable to the 

water body. 

D. Flow 

1. Issue raised by EPA: Should EPA 

encourage State adoption of stream flow 

and water quantity allocation · 

prohibitions? How can EPA do so within 

the confines of Section 101(g) of the Act? 

Public Comment: The majority of 

commenters answered that EPA should 

not encourage State adoption of stream 

flow and quantity allocation 

prohibitions. Thirty-one commenters 

were opposed to the proposed policy. 

The argument raised most frequently 

was that the States have the authority in 

the area of stream flow and water 

allocation and that Section 101(g) of the 

Clean Water Act was adopted 

specifically to protect that authority. 

Many interpreted EPA's proposed policy 

as an overt, purposeful step toward 

usurping States's rights. 

Eighteen individuals suggested that 

EPA should encourage State adoption of 

stream flow and quantity allocation 

prohibitions. However, many stated that 

the Agency should be careful to restrict 

its activities to encouragement rather 

than regulation. 

Response: EPA is not requiring States 

to develop prohibitions against stream 

flow modifications. EPA is encouraging 

States to consider flow in setting uses, 

and in developing permit conditions for 

dischargers. 

[FR Doc. 112-29543 Filed 1G-21Hl2; 8:45 am) 

BILLING CODE 656G-5G-M 

40 CFR Part 131 

Public Meetings on Proposed Rule for 

the Water Quality Standards Program 

[WH-FRL-2235-4 1 

AGENCY: Environmental Protection 

Agency. 

ACTION: Notice of public meetings. 

SUMMARY: EPA is conducting a series of 

public meetings to discuss the proposed 

new regulation for the water quality 

standards program and accompanying 

draft guidance documents. 

DATES: See Supplementary [nformation, 

below, for a complete listing of date, 

time, place, and agenda. 

FOR FURTHER INFORMATION CONTACT: 

tvJr. David K. Sabock, Criteria and 

Standards Division (WH-585), Office of 

Water Regulations and Standards, U.S. 

Environmental Protection Agency, 401 M 

Street, SW., Washington, D.C. 20460, 

(202) 245-3042. 

SUPPLEMENTARY INFORMATION: EPA will 

hold a series of public meetings on the 

dates listed below to discuss the 

proposed rule and supporting guidance 

documents. 

Each meeting will be conducted 

following this general agenda. 

8:00am-Registration Begins 

9:0(}-9:15 am-Opening Remarks 

9:15-10:00 am-Presentation on Standards 

Regulation 

10:0(}-noon-Discussion on Standards 

Regulation 

Noon-1:00pm-Lunch 

1:00-2:3()--Discussion of Guidance and Field 

Tests on Water Body Survey and 

Assessments for Analyzing the 

Attainability of Uses 

2:3(}-2:45-Break 

2:45-4:15-Discussion of Guidance and Field 

Tests on Developing Site-Specific Criteria 

4:15-adjournment-Discussion of BenefitCost Assessment Guidance 

Note 1.-All times listed are approximate. 

Note 2.-In San Francisco only, the meeting 

hours will be one hour later than shown 

above-opening remarks will begin at 10:00 

am. 

Copies of the draft guidance 

documents and the proposed regulation 

are available from the person listed 

above. Detailed information on the 

proposed rule also may be found in the 

Notice of Proposed Rulemaking, Water 

Quality Standards Regulation in this 

issue. 

The purpose of these meetings will be 

to explain the proposed regulation and 

draft guidance, and to answer questions. 

Therefore, the format of these meetings 

will be informal to foster discussion 

with maximum audience participation. 

Participants are encouraged to reserve 

formal statements on the proposed rule 

for submission in writing during the 

public comment period. The dates and 

locations for the meetings are as 

follows: 

Date: November 30, 1982. 

Place: 29th Floor, First International Bldg., 

1201 Elm Street, Dallas, Texas 75270. 

Date: December 2, 1982. 

Place: Community Hall, 205 South Main, 

Council Bluffs, Iowa 51501. 

Date: December 7. 1982. 

Place: Atlanta Civic Center, 395 Piedmont 

Ave., N.E., Room 207, Atlanta, Georgia 30308. 

Date: December 9, 1982. 

Place: Blackstone Hotel. 636 South 

Michigan Ave., Chicago, Illinois. 

Date: December 14, 1982. 

Place: Environmental Protection Agency, 

Park Place Bldg. Room 12-A, 1200 6th Ave., 

Seattle, Washington. 

Date: December 16, 1982. 

Place: Environmental Protection Agency, 

6th Floor, 215 Freemon! St., San Francisco, 

Calif. 

Date: January 8. 1983. 

Place: Governors Court Hotel, 1778 Grant 

Street, Denver, Colorado 80203. 
HeinOnline -- 47 Fed. Reg. 49252 1982

49252 federal Register I Vol. 47, No. 210 I Friday. October 29, 1982 I Proposed Rules 

Date: January 11, 1983. 

Place: John W. McCormick Post Office & 

Court House Bldg., Room 208. Boston, 

Massachusetts 02109. 

Date: January 13, 1983. 

Place: U.S. Environmll!ltal Protection 

Agency, Jacob Javitz Building, 26 Federal 

Plaza. Room 305-A, New York City, N.Y. 

Date: January 18, 1983. 

Place: Holiday Inn, 4th II< Arch Stret:ts. 

Philadelphia, PA 19106. 

Date: January 20, 1983. 

Place: U.S. Environmental Protection 

Agency, 401 M St., S.W. (Room 2814), 

Washington, D.C .. 

Dated: October 22. 1982. 

Henry Longest, 

Acting Assistant Administrator for Woter. 

(FR Doc. 82-29744 Filed 1(}-211-82: 8:45 ami 

BILLING CODE 6560-5Qo.M