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 ofwater quality standards under Section 303 ofthe Clean Water Act.

The proposed changes reflect experiences gained in the program by both EPA and the States. The changes increase the flexibility ofthe States to:

• Review and revise, as appropriate,
water quality standards on priority
waterbodies 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 ofthe attainability bf the uses and on benefit-cost assessments, ifappropriate, 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 ofWater 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 ofSubjects 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 ofa waterbody, or portion thereof, by designating the use or uses to be made ofthe water and by setting criteria necessary to protect the

uses. States adopt water quality standards to pFotect public health or · welfare, enhance the quality ofwater and serve the purposes ofthe Clean Water Act [the Act). "Serve the
purposes ofthe 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 offish, shellfish and wildlife and for recreation in and on the
water and take into consideration their

use and value for public water supplies, propagation offish and wildlife, recreation, agricultural and industrial
purposes and navigation.

Water quality standards are the foundation ofa 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 ofthe 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 Stategoals and the effectiveness ofwater quality planning and management efforts measured; (3) total maximum daily loads and waste load allocations for each waterbody 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 ofwaterpollution 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 ofwater 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 ofState 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 Guidelinesfor State and Areawide Water QualityManagement Program Development, Chapter 5, "Water Quality Standards," November 1976, is rescinded. It will be superseded by the Water QualityStandards 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 ofthe draft guidance documents may be obtained for review and comment from the individual referenced under "FOR
FURTHER INFORMATION CONTACT". The documents include:

Water QualityStandards 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 AssessmentsforAnalyzing the AttainabilityofUses. Describes the biological, chemical and physical factors that States may evaluate in determining existing uses ofa waterbody andHeinOnline -- 47 Fed. Reg. 49235 1982 

### 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 ofthe water body.

• Benefit-CostAssessmentin the Water QualityStandards DecisionMakingProcess. Outlines alternative analyses States may use in deciding whether the benefits ofattaining 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 ofthe proposed
water quality standards regulation and program, but especially on the options described for the antidegradation policy in section C.6 ofthis Preamble.

B. Proposed Changes and Clarifications

EPA Is proposing the revision to the
water quality standards regulation to make fundamental changes in the management ofthe 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 setcriteria

·consistent with meeting the requirements ofthe Act; and

• Revise uses basedon an analysis of the attainability ofuses and the costs and benefits ofattaining the uses.

The major proposed changes in the
water quality standards program include:

1. Focusing on priority waterbodies 2. Determining the attainability of

uses by:

a. Analyzing environmental and physical factors impacting the attainment ofa 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 ofthese 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 yearperiod).

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 orrenewal, or toxics have been identified or are suspected ofprecluding

a use or are posing an unreasonable risk
to human health. In selecting priorities, States should also take into account the "Municipal WastewaterTreatment Construction Grant Amendments of 1981" (Pub. L. 97-117, December 29, 1981). Section 24 ofthe amendment is intended to ensure that \Yater quality standards influencing construction grant decisions have been reviewed in accordance with Section 303(c) ofthe Acl Itprohibits the issuance ofa grant afterDecember, 1984, unless the State has completed its review ofthe 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 ofreview is dependent on particular site-specific conditions. Guidance is available which

1 Water quality limited segment means any segment where It is known that waterquality does
not meet applicable waterquality standards, and/or is not expected to meet applicable water quality standards. even after the application ofthe 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

orbenefits ofinstalling 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 theprivate sector to assist in assembling the data and in performing the analyses. Since the review ofstandards will be a continuous
process, EPA and the States should cooperatively develop a list ofpriority
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

ExistingProvision: Under§ 35.1550(b) and (c) ofthe existing regulation:

The water quality standards ofthe State shall:

(1) Protect the public health orwelfare, enhance the quality ofwaterand serve the
purposes ofthe Act;

(2) Specify appropriate water uses to be achieved and protected, taking into consideration the use and value ofwater for public water supplies, propagation offish, shellfish, and wildlife."recrealion 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 ofthe national water quality goal specified in section 101(a)(2) ofthe 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 waterquality standards, effective as ofthe 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 ofnatural background;HeinOnline -- 47 Fed. Reg. 49236 1982 

### 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 ofirretrievable maninduced conditions;

(iii) Application ofeffluent limitations for existing sources more stringent than those required pursuant to section 301(b)(2)(A) and (B) ofthe 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 ofdownstream
waters and shall assure that its water quality standards provide for the attainment ofthe
water quality standards ofdownstream waters."



### Proposed Change: Since passage of the Water Quality Act of 1965 (Pub. L. 89-234) waterquality standards were set to provide for the protection and propagation offish, 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 ofthe 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 ofwater pollution control programs.

Because legitimate factors may effectively prevent a use from being met, EPA recommends that Statesjustify changes in the use designations by analyzing the attainability ofuses (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 ofthe public in providing data for the analyses, will enable States
to improve their decision-making
process.

Analyzing the attainability ofuses is a multi-step, but not necessarily complex, process for determining whether impaired uses are attainable and for determining other appropriate uses ofa particular waterbody. For a discussion ofthe context in which the analyses would be used, see section C, State Water Quality Standards Review Process. 

### (a) Use AttainabilityAnalysis (Environmental and Physical Factors)

The term "use attainability analysis" refers to a scientific analysis offactors which determine the suitability ofthe
·waterbody for a particular use. These factors include the physical, chemical, and biological characteristics ofthe water body, its geographic setting, scenic qualities, and current uses.

With the completion ofeffluent guidelines and the application of technology-based controls, EPA is now emphasizing the implementation ofthe
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 orreclassifying designated

uses ifthey canbe attained by implementing technology-based controls and cost-effective and reasonable best management practices (BMP's) for the control ofnonpoint sources.

Ifadequate data are available to conduct a use attainability analysis, an intensive survey ofthe waterbody is
not necessary. Ifadequate data are not available, a waterbody survey will assist States in pinpointing the water qualityproblems 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 beprotected? How is it characterized in physical, chemical and biological terms, and in
terms ofits social or economic value?

2. 

### To what extentdoespollution contribute to the impairment ofthe use? Which pollutants are significant in terms ofimpairing 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 ofin-stream water quality must be maintained to provide adequate protection for the use given the characteristics ofthe use?

3. 

### What is the levelof pointsource pollution controlnecessary to restore or enhance the use?What are the pollutants ofsignificance that are present in the point source discharges? What is the contribution ofpoint map

source discharges relative to background levels (pollutants in the
stream from upstream sources) and relative to nonpoint sources generated in the waterbody. What is the allowable pollution load from point

sources under specified in stream flow conditions in the waterbody and how does that translate to permit requirements? What is the plan? 4. 

### What is the levelof nonpoint

sourcepollution controlnecessaryto
restore orenhance the use?What are the nonpoint source pollutants of significance that are present? What is the contribution ofnonpoint sources relative to background levels and point sources? Does the occurrence of nonpoint sources contribute to the impairment ofthe use? Is it significant? What is the "feasible" level ofcontrol 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-CostAssessment

Although there are no universally accepted methods ofquantifying 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 ofthe benefits and costs of meeting the standard. Water quality management plans, peer review ofthe scientific analyses ofthe attainability of

uses or the appropriateness ofcriteria, and public debate ofthe decisions provide the responsible State rulemaking body with the information it

neeos to weigh and balance the tangible andintangible benefits and costs ofits standards decision.

This proposed regulation advocates a structured exercise to identify and evaluate the incremental impact ofthe standards decision. Itis difficult to generalize on the level ofprecision and detail appropriate for any site-specific, benfit-cost assessment. However, the

more costly and controversial the potential impacts ofa standards decision, the more comprehensive the analyses ofthe benefits and costs will need to be. The analysis should be sufficiently detailed to identify and display all significant impacts, the sensitivity ofkey 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 ofmethodologies 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 orHeinOnline -- 47 Fed. Reg. 49237 1982 

### Federal Register 

## I Vol. 47, 

### No. 210 

## I Friday, October 29, 1982 

## I Proposed Rules 

### 49237

costs) ofattaining the standard whether quantifiable Or not are identified. Some impacts, even .though they cannot be quantified may be crucial to the decision.

Ifthe 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 ofthe findings among scientific peer groups and will ensure an understanding ofthe changes in uses the,State is recommending. Such discussions should enable the State to make more informed decisions on proposed water quality standardsrevisions and enable EPA to adequately review the appropriateness ofthe revisions.

3. TypesofChanges to Designated Uses

Existing Provision:The terms "downgrading" and "upgrading" and alternatives to removing a use in a State's waterquality standard were part ofthe U.S. Environmental Protection Agency's Guidelinesfor State and Areawide WaterQualityManagement Program Development, Chapter5, "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 ofuses. There has also been confusion

over whatconstitutes 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 ofchanges that are allowed. "Adding" or "removing" a use designation refers to identifying different uses for a waterbody or segment consistentwith meeting the goals ofthe Act. "Modifying" a use refers to keeping the same general classification such as aquatic protection but changing the designation, for example, from a cold waterfishery to a

warm water fishery.

The regulation also encourages States {o consider steps short ofremoving 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 waterto support aquatic life year round but could serve as spawning grounds during spring runoff.

The proposed regulation allows States
to modify orreclassify a use, which is

2This publicationhas been rescinded. not an existing use as defined in the regulation, (see § 131.2) ifattaining the

use is not feasible because (see § 131.10(h)):

• naturally ·occurring pollutant

concentrations prevent the attainment ofthe use;

• natural, ephemeral, intermittent or

low flow conditions orwater 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 ofeffluent discharges to enable uses to be met;

• human caused conditions or sources

ofpollution exist which cannot be remedied or would cause more environmental damage to correct than
to leave in place;

• dams, diversions or othertypes of

hydrologic modifications interfere with the attainment ofthe 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 ofthe use;

or

• benefits ofattaining the use do not

bear a reasonable relationship to the costs.

_ States maynotmodify orreclassify designated uses if(see§ 131.10(i)):

• They are existing uses unles.s uses

requiring more stringent criteria are added;

• uses 

### will be attainedby implementing

the effluent limits required under Section 301(b)(1) and (2) ofthe Act (including modifications under Section 301(c) ofthe Act);

• uses will be attainedby implementing

cost-effective andreasonable best managementpractices 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 ofAquatic Protection

Existing Provision: Beypnd the general references to various stream

uses referred to in40 CFR 35.1550(b) and (c), no explicitreferences exist that

'Theprovision precluding the modification ofa stream use based on anticipated growth is consistent with the proposed antidegradation policy. In Section 6 ofthe Preamble, "Antidegradation andMaintenance ofExisting 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 specificallyrequested to
comment on the alternatives discussed in Section 6. define levels ofprotection within the aquatic protection use category. (Level ofprotection refers to the impact on propagation, growth. survival, and diversity ofspecies, relative to various
water quality criteria levels for a water body). However, subcategories ofthe aquatic protection use have evolved as both the States andEPA recognized that aquatic protection could range from providing for the survival ofpollutanttolerant 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 ofaquatic protection uses which reflect different levels of protection.

Subcategories will reflect the expected effects ofvarious criteria levels onthe growth, propagation, and diversity offish and aquatic life. In describing the various effects on the aquatic community, the Statemay look
at existing data bases, such as the Section 304(a) criteria guidance, to determine ifthe resident species in the particularwaterway might experience adverse growth orreproductive effects. This evaluation can bematched against the various treatment levels and costs. This information may then be considered in public forums to reach decisions that balance costs against levels ofprotection in setting stre(lm

uses and criteria.

The information available from water quality management plans, the use attainability analysis, the benefit-cost
assessments andEPA's criteria guidance

can beused in identifying specific levels ofprotection. Infuture 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 ofStates have defined subcategories ofaquatic protection orare considering doing so. For example, Pennsylvania has 6 different dissolved oxygen**lev~ls** which may be applied to any one of7 aquatic protection uses which are·generally based on a cold water, warm water division. Montana has defined criteria for 4 different kinds oftrout streams, in addition to other aquatic_protection

uses. Oklahoma has specific uses designated for protection ofsmallmouth bass and a put-and-take trout fishery. Criteria for these uses differ from the basic aquatic protection uses.



# ..HeinOnline -- 47 Fed. Reg. 49238 1982 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 5use 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 ofprotection.

5. Developing Site-Specific Criteria
ExistingProvision

Other than indicating that States are to specify criteria necessary to support designated wateruses, the existing regulation does not reference acceptable methods for developing site-specific criteria. Under Section 304[a) ofthe Act, EPA develops and publishes guidance

on surface water quality criteria, which

are quantitative or qualitative estimates ofacceptable concentrations or conditions ofwater constituents or pollutants in ambient waters. The guidance reflects the latest scientific knowledge ofthe 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 ofpresumptive 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 notrules andhavenodirect regulatoryimpact. EPA rescindedthe policy ofpresumptive**applicabilit~** on November 28, 1980 (45 · FR 79320). The proposed regulation reemphasizes States' flexibility in · setting orrevising 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 ofa pollutant because ofthe effect oflocal
water quality characteristics or varying sensitivities oflocal aquatic communities. In other cases, adaptive processes may enable a viable, balanced aquatic community to exist in
waterwith high natural background levels ofcertain pollutants. Similarly, certain compounds may be more or less toxic in some waters becasue of differentes in temperature, hardness, and otherparameters. Developing site- .specific criteria is a method oftaking 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 waterbodies 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 waterbody, 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 bejustified 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
ExistingProvision (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 bemaintained and protected. No further
waterquality degradation which would interfere with orbecome injurious to existing instream wateruses is allowable.

(2) Existing high quality waters which exceed those levels necessary to support propagation offish, shellfish, and wildlife andrecreation in and on the
water shall be maintained and protected unless the State chooses, after full satisfaction ofthe intergovernmental coordination and public participation provisions ofthe State's continuing planning process, to allow lower water quality as a result ofnecessary and justifiable economic or social development. In no event, however, may degradation ofwater quality interfere with orbecome 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 andfeasible management or regulatory programs pursuant to section 208 ofthe 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 ofthat 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 ofa 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 ofthe Act to 

### "* * • restore an maintain the chemical, physical, and biological integrity ofthe nation's waters."

The proposed regulation is based on limiting the mandatory antidegradation policy to the protection and maintenance ofexisting uses (see § 131.10(c)). Once a State determines that a use is being attained, that use cannotbe changed to a use requiring less stringent criteria. However, States
may designate additional uses for the
waterbody 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 waterbody, be higher than
necessary to protect the existing use. For example, ifa stream was meeting a warmwaterrisheryuse which included a criterion of5.0 mg/1 for dissolved oxygen [D.O.), and the in-stream concentration ofD.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-butnot less than that. No public participation requirements would be involved in the lowering ofthe in-stream D.O. level because there would be no change in the.water quality standard.

This policy, iffinally adopted by the Agency, would mean that once a use has been met, it must continue to be met regardless ofany future growth or development [including plant expansion) thatmight occur.

Option two retains the existing antidegradation policy (40 CFR 35.1550(e)[2)), except for provisions related to outstanding National resource waters.4This option restricts changes in the quality ofexisting high quality
waters (e.g. those waters whose quality exceed levels necessary to support fish,

•See Discussion on Outstanding National Resource Waters, Section 7 ofthe 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 ifthe existing

use would still be protected. The quality ofthese waters would be maintained and protected unless the State chooses, after full satisfaction ofthe public participation provisions ofthe 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 ofnecessary andjustifiable economic or social development. In no event, however, would degradation of
water quality be allowed to interfere with orbecome injurious to existing instream water uses.

The difference between this option and the one proposed lies in the requirement for full satisfaction of public participationprovisions ofState and Federal law before any change in high quality waters may occur. This position is grounded on the concern that there maybe 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 oriftlie benefits of maintaining the use do not bear a reasonable relationship to its costs. Such a modification ofthe water quality standard would be granted only after full satisfaction ofpublic participation provisions ofState's continuing planning
process, this regulation and EPA's public participationrequirements (40 CFR Part 25) and demonstration that the technology-based requirements ofthe 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 ormodify 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 ofthe 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 ofthe 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 ofOutstanding National Resource Waters

ExistingProvision: Section 40 CFR 35.1550(e)(2) ofthe regulation provided for special designations to protect outstanding national resource waters.

Change: The revised regulation eliminates this provision because the Clean WaterAct does not provide for special designations ofnational

resource waters. However, under Section 510 ofthe Act, States may include special designations in their
water quality standards to preserve the characteristics ofoutstanding or unique

resource waters such as swamps, parks

or wildlife**refug~s.** 8. General Policies

ExistingProvision: 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

ExistingProvision: "The Regional Administrator shall approve or disapprove any proposed revisions of
water quality standards in accordance with the provisions of section 303(c)(2) ofthe Ac.t" (section 40 CFR 35.1550(a)).

Proposed Change: In the past, EPA's regulations and guidance did not always describe the type ofanalyses 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 ofState standards-setting decisions (Sections 40 CFR 131.4, 131.21, and 131.22) and encourages consultation prior to formal review byEPA (Section 131.21(b)).

Conducting the recommended analyses and consulting in advance with EPA should expedite EPA's review and approval ofState 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 QualityStandards ReviewandRevision Process

1. Introduction

This discussion ofthe 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 ofthe administrative and legal procedures necessary for State adoption and EPA review and approval ofState standards.

Section 303(c) ofthe 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 ofall standards every three years. However, under the "Municipal WastewaterTreatment 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 ofthe waterquality 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 ofthe process are Interrelated, no clean demarcation exists between the end ofone task and the beginning ofanother. For example, data gathered as part ofthe waterbody
surveys and assessments canbe 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 ofthe analyses, and the timing and sequencing ofthe steps in.the process will depend on the situation. The
process relies heavily on common sense and practical application oflimited

-
resources. Not every step ofthis process is necessary for every waterquality standardreview.

BILUNG CODE 656D-5D-MHeinOnline -- 47 Fed. Reg. 49241 1982®®LISTOFRIVERS,STREAMS,SEGMENTS,LAKESCOASTALAREASWITHWATERQUALITYPROBLEMSDEFINETOTALMAX.DAILYLOADSANDPERFORMWASTELOADAllOCATIONSFIGURE1WATERQUALITYSTANDARDSREVIEWANDREVISIONPROCESSNOYESSELECTPRIORITYSTREAMSEGMENTSFORREVIEWYESNOBETWEENTtiECOMMONBEGINNINGELEMENTSABOVE0ANDTHECOft1MONFINISHINGSTEPSUSTEDBEt-OW®INSERTTRACK"B"OR"C"FROMTHENEXTPAGESETDISCHARGELIMITSISSUEPERMITSI•(L\DISCHARGESMEETING\...___NO('ERMIT,--CONDITION!>yYESTAKEENFORCEMENTACTIONMONITORRECeiVINGWATERTOENSUREEXPECTEDWATERQUALITYIMPROVE·MENTSACHIEVEDCONDUCTASURVEYANDASSESS:II•(MENTOFTHEWATERBODYYES"CDo.s.SEEII!XPAGE2<?--z?N...0-"fj...,5:ell0(')-0C"CD...,N!P...coQ:lN-4'0'C0CDCDc.,E.CDCDHeinOnline -- 47 Fed. Reg. 49242 1982FIGUREi(continued)DETERMINEIII..IATTAINABLEUSESX....BILLINGCODE656D-5G-CNOAWILLRELIEFBEGRANTED)-TOALLYESDISCHARGESONASEGMENTvPOINTANDNONPOINTSOURCESNOYESADOPTNEWWATERQUALITYSTANDARDSYESNo.@NliloN:Q..CD...II)-CDa;s.en-CD....-<zN0-5.:II)C'l-0c:1"CD...N!Pcc0:1N-"C...0't:l.0enCDQ..:::0s::CD'enHeinOnline -- 47 Fed. Reg. 49243 1982 

### Federal Register 

## 1Vol. 47, 

### No. 21b 

## I Friday, October 29, 1982 

## I Proposed Rules 49243

2.Process

This section describes the steps shown in Figure 1.



### ListRivers, Streams, Segments, Lakes or CoastalAreas With Water Quality Problems andPollutants ofConcern (Known orExpected)

States know the location oftheir
waterpollution problems and frequently list the segments in order ofpriority in State water quality reports issued biennially under Section 305(b). Water quality problems are most frequently expressed in terms ofimpacts on the biota ofthe waterbody, restricted uses, and the extent and frequency ofwater quality criteria violations.



### SelectPriority Water QualityLimited Stream Segmentsfor Water Quality Standards Review

Water quality standards should be revised only where a need exists, given the limited resources available. Section 303(d) ofthe 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 orrevised 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, majorpermit 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 bereviewed, such as human health problems, court orders, or costs or economic impacts ofimplementing the existing water quality standards. A public hearing ormeeting is a mechanism for obtaining public input to and public comment on the segments selected for review.



### Conduct WaterBodySurveys and Assessments

An intensive survey ofthe waterbody is not necessary ifadequate data are available. The purpose ofthe 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 ofthe physical, chemical. and biological characteristics ofthe waterbody, the identification ofpresent
uses, and an assessment ofits biological integrity. ·

The "biological integrity" ofthe water is evaluated to determine whether a healthy, balanced ecological**commu~ity** exists. A healthy, balancedcommumty exhibits characteristics: (1) Similar to those ofnearby, healthy communities existi!lg under comparable but

.

. unpoliuted environmental conditions, or

(2) which might reasonably be expected
to become re-established in the polluted
waterbody segment from adjacent
waters ifsources ofpollution were removed or substantiallyreduced.

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 andproductivity patterns; presence ofopportunistic species; and the occurrence ofmass mortalities

.

. Uthe results ofthe 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 Statemodify the
water quality standardby revising the criteria to reflect actual instream concentrations undervarying seasonal conditions. This will avoid overly restrictive regulatory requirements on dischargers and the construction**~f** unneeded and costly AT facilities.



### Reviewthe Cause ofUses NotBeing Met

Ifthe survey indicates that designated

uses are impaired, the next step is to determine the cause. In many situations, both physical conditions and the
presence ofwaterpollutants prevent the
waterbody from meeting its designed

use. However, for simplicity, physical limitations ofthe waterbody have been separated from water quality pollutant problems in this discussion. Physical limitations ofthe waterbody refer to such factors as·depth, flow, turbulence

or structures such as dams which may make swimming, boating or certain kinds offishing unsuitable as a use.

Ifuses are precluded because of physical limitations ofthe waterbody, the State would follow track (B) in Figure 1.



### DetermineAttainable 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 ofthe water body for particular uses. Consideration ofthe suitability ofthe
waterbody to attain a use is an integral part ofthe waterquality standards review and·revision process. The suitability ofthe waterbody to attain a

use depends on the physical, chemical, and biological characteristics ofthe waterbody, its geographic setting and scenic qualities and the socio-economic and cultural characteristics ofthe surrounding area. Suitability also depends, to a great extend, on the professionaljudgment of**t.h~ ~valuators.**  Itis primarily the respons1b1hty ofthe evaluators to determine what types of

uses are attainable in the absence of physical impediments orpollution. The question ofwhether the use is worth attaining is considered later in the
process.

In determining appropriate uses for the waterbody, States should take into consideration (1) the use and value of the waterfor public water supplies, propagation offish and**wil~life,** . recreation, agricultural and mdustr1al
purposes and navigation and (2)**~he** . waterqualitygoal ofthe Act, whiCh IS to provide for the protection and propagation offish, shellfish and wildlife andrecreation in and on the water, wherever attainable. The detail and scope ofthe analysis should be tailored to the individual situation. A complete analysis does notneed 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 ofphysical limitations ofthe waterbody or irreversible natural or man-induced background pollutant levels. Thus, swimming may be unattainable because the shallowness of the waterbodyprevents the physical act ofswimming. A particular type of fishery may be impossible for a body of
waterbecause the natural water temperature is too high.

Ifthe designated uses or the potential

uses identified canbe achieved by installing the required Section 301(b)(1) and (2) effluent controls or cost-effective and reasonable bestmanagement practices for nonpoint source control, the use should be considered appropriate and maintained in the water quality standard. However, iftreatment

more stringent than the required technology-based effluent limitations is
necessary to attain the use ofbest management practices have not been included in a water quality managementHeinOnline -- 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 ofattaining the

use as compared to the costs ofattaining the use.
Revise Use, Revise Criteria andAdopta New Water QualityStandardfor the Stream Segment

Ifa change in the designated use is warranted because ofphysical limitations ofthe water body, States
may modify the use now assigned. In doing so, the State should designate a

use or a level ofaquatic protection which can be supported given the physical limitations ofthe waterbody. 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 canbe used for spawning during higher flow periods.

Every change in use designations must always be accompanied by consideration ofthe need for a change in criteria. Ifa use is removed, the criteria
to protect that use may be deleted or revised to assure protection ofthe remaining uses. Ifa 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 ofthe 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 ofpollutant 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 PrecludedBecause ofWater QualityProblems

Ifuses are not being met because of
waterpollution 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 ofthe 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 ofthe uses to determine other more appropriate uses for the
water body. Ifthe cause ofthe water quality problem is pollution from point

or nonpoint sources, States should first review·the criteria to determine iftlie 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 ofthe 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 ofthe differences in overall sensitivities ofdifferent populations of aquatic organisms toward pollutants. The second method recognizes that overall water quality orwater chemistry has a large impact on the toxicity or · bioavailability ofpollutants toward aquatic organisms. (See the discussion in Section.B-5 ofthis Preamble for a

more complete description ofdeveloping site-specific criteria).

After the criteria are developed, the revised criteria are incorporated into the standard andused in the wasteload allocation process for setting discharge limits and in issuing permits.

Determine TotalMaximum DailyLoads andPerform WasteloadAllocations

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 WaterAct requires the development ofmore stringent limitations ifwater 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 ofthe total maximum daily load and wasteload allocation processes required under sections 303(d) and 303(e)(3)(A) ofthe Act. These sections require States to identify waters requiring more stringent effluent limitations, setpriorities for calculating total maximum daily loads and submit them to the Administrator for approval. Total maximum daily loads ofpollutants 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 AreAvailable

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 ofcontrols, 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. Ifnonpoint source controls are not available orfeasible, 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 ofthe
stream canbe attained with the controls that are available. Benefit-CostAssessment

Iffeasible 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) ofthe Act.

A State mayreclassify the waterbody. and designate uses requiring less stringent criteria ifthe 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.

Ifthe State determines that the standard needs to be revised, appropriate uses are selected and criteria developed to protect those uses. Ifthe 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 reliefwith a variance to an individual discharger ifthe applicant demonstrates that meeting the criterion would cause substantial economic hardship [likely substantial loss of productivity, jobs and/orfinancial 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 orpreclude eventual attainment ofHeinOnline -- 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 dischargerfrom compliance with other criteria in the waterquality standards which are attainable, and the variance does not result in more stringent pollution control requirements for otherparties.

PublicHearing

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 peergroups of the evidence and analysis supporting the revised waterquality standard.

Shouldthestandardbechanged? At this point in the water quality standards review andrevision process, States have adequate information to evaluate the impacts oftheir decision to maintain, revise, or modify the water quality standard for a particularwater body: The following questions will have beeri answered:

1.- What is the use to be protected? 2. To whatextent does pollution contribute to the impairment ofthe use?

3. What is the level ofpoint source pollution control necessaryto restore or enhance the use?

4. What is the level ofnonpoint source pollution control necessary to restore or enhance the use? ·

5

.. Does the cost ofattaining 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 accompanyingguidance clearly distinguish between discretionary and mandatoryrequirements. The mandatory requirements are few and

are summarizedbelow.

• Waterquality standards must include designated beneficial uses, criteria to protect the designated uses and an antidegradationpolicy 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 oradditions mustbe 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 andrevising State
water quality standards, a State must hold public hearings and provide for public comment in accordance with State law andEPA'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 ofadoption ofthe revised standard orifno revisions are made as a result ofthe review, within 30 ·days ofthe completion ofthe 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 ofthe findings
among those affected by the decision. EPA will also have enough information
to adequately review a State's water quality standardrevision.

D. State/FederalRules - with requirements ofthe Act within 60

or 90 days, respectively, ofsubmission (see § 131.21(a)); The roles andresponsibilities ofthe States and EPA in the water quality standards program have been the subject ofmuch 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 ofthe water quality standardregulation 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 ofwhy State standards are not in compliance with the Act (see § 131.21(a)(2)]; and

• Inpromulgating water quality standards, the Administratormust adhere to the same policies and procedures as the States (see § 131.22(c)].

EPA retains the responsibility to review the appropriateness ofState adopted criteria to protect the designated uses, to assure the uses designated comply with Sections 101(a) and 303(c] ofthe Act, and to assure that States adhere to the legal and administrative procedures outlined in the proposed regulation.

IfStates submit their revisions with the type ofanalyses recommended in the proposed regulation andin accordance with the properlegal procedures, EPA will have adequate information to review the appropriateness ofanyrevisions. The States are urged to consult early and frequently withEPA as the analyses and
assessments are initiated and carried
out. IfStates submitrevisions to their
water quality standards without the optional analyses, EPA may question the appropriateness ofthe revisions.

While EPA's authority to review and approve State waterquality standards applies to all surface waters;EPA expects to take a more active role in working with States on water segments involving interstate andinternational boundaries. This will ensure that the

. uses and/orcriteria are consistent throughout the bodyofwaterand that downstream uses are protected.

E. StateResourceImpacts

The framework for the water quality standards program in the proposed regulation is flexible. Depending on the State'sre_sources and priorities, a State may tailorits waterquality standards
program to fit existing resources.

The scope and detail ofthe optional analyses outlined in the regulation will
vary depending on the type ofwater body, the POTWs and the industries impacting the waterbody, 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 QualityManagement 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 ofthe 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 ofthe States to modify criteria anduses, the municipal and industrial sector has anincentive to support the State with data and information. For these reasons theHeinOnline -- 47 Fed. Reg. 49246 1982 

### 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 PaperWork Reduction Act Requirements

UnderExecutive Order 12291, EPA musijudge whether a regulation is "major" and therefore subject to the requirement ofa Regulatory Impact Analysis. This proposed regulation is
not major because itimposes no new obligations on the industrial sector. If adopted, the proposed regulation will increase the ability ofthe States to change unattained uses to uses requiring less stringent criteria and to modify criteria where uses have been attained. Itis anticipatedthatthis 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 ofManagement andBudget 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 atthe beginning ofthis 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 ofsmall 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 ofManagement and Budget (OMB) under Section 3504(b) ofthe Paperwork Reduction Act of 1980. U.S.C. 3501 et. seq. Any final rule will explain how its reporting orrecordkeeping provisions respond to any OMB or public comments.

List ofSubjects in40 CFR Part 131

Waterpollution control. Intergovernmental relations, Administrative practices and procedures, Reporting and record keeping.

Dated: October 8, 1982.
Anne M.Gorsuch,
Administrator.

Itis 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 ofcontents 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 ofuses. 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 ofwater quality standards. 131.21 EPS review and approval ofwater

- quality standards. 131.22 EPA promulgation ofwater quality standards. Subpart D-Federally Promulgated Water Quality Standards
131.30 Alabama. 131.31 Arizona. 131.33 Mississippi.

Authority: Clean WaterAct, Pub. L. 92-500,

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

B. Subparts A through C are added as setforth 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) ofthe Clean WaterAct.

§ 131.2 Definitions.

(a) "The Act" means the Clean Water Act (Public Law 92-500, as amended, (33 U.S.C. etseq.)).

(b) "Criteria" are elements ofState
water quality standards and represent a constituent concentration or level associated with a degree of environmental effect upon which scientificjudgment 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 ofa constituent concentration.

(c) "Section 304(a) criteria" are information developed byEPA under authority ofSection 304(a) ofthe Act. This information is issued periodically
to the States as guidance·foruse in developing criteria.

(d) "Uses" are the beneficial uses ofa particularbody ofwater.

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



### a waterbody.

(2) "Existing uses" are those uses actually attained in the waterbody 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 ofState or Federal law which consist ofa designated use oruse for a waterbody and criteria to support those

uses. Water quality standards are to protect the public health or welfare, enhance the quality ofwater and serve the purposes ofthe Act.

(f) "States" include: the 50 States, the District ofColumbia, Guam, the Commonwealth ofPuerto Rico, Virgin Islands, American Samoa, the Trust Territory ofthe Pacific Islands, and the Commonwealth ofthe Northern Mariana Islands.

§ 131.3 State authority.

States are responsible for establishing and revising water quality standards. Under Section 510 oftheAct, States may develop water quality standards more stringent that required bythis regulation.

§ 131.4 EPA authority.

Under Section 303(c) ofthe Act, EPA is to review and approve State-adopted
water quality standards.This review involves a determination: (a) that the State has adopted wateruses which areHeinOnline -- 47 Fed. Reg. 49247 1982 

### Federal Register 

## I Vol. 47, 

### No. 210 

## I Friday, October 29, 1982 

## I Proposed Rules 

### 49247

consistent with the requirements ofthe Clean Water Act; (b) that the Statehas adopted criteria to protect the designated water uses; [c) that the State has followed its legal procedures for establishing orrevising 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) ofthe Act, ifState adopted water quality standards do not meet the requirements ofthe 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 ofsections 101(a)(2) and 303(c)(2) ofthe 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) Certificationby 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 ofthe scientific basis ofthe standards

as well as information ongeneral 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 wateruses to be achieved and protected. The classification ofthe
waters ofthe State must take into consideration the use andvalue ofwater for public water supplies, protection and propagation offish, 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 ofdifferent 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 ifthey canbe achieved by the imposition ofeffluent limits required**und~r** Section 301(b) (1) and (2) cfthe Act (including modifications uncle;· Section 301(c) ofthe 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, ifappropriate, when revising a denignated use ofa 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) ofthis regulation.

(g) States are encouraged to adopt seasonal uses as an alternative to reclassifying a water body or segment thereofto uses requiring less stringent
water quality criteria. Ifseasonal uses

are adopted, water quality criteria should be adjusted to reflect the seasonal uses.

(h)**St~tes** may modify orreclassify a designated use which is not an existing

use as defined in § 131.2, ifthe State determines that attaining the use is not feasible because:

(1) Naturally occurringpollutant concentrations prevent the attainment of the use; or ·

(2) Natural, ephemeral, intermittent or low flow conditions orwaterlevels prevent the propagation or survival of fish and other aquatic life, unless these natural conditions maybe compensated for by the discharge ofsufficient volume ofeffluent discharges without violating State water conservation requirements
to enableuses to be met; or

(3) Human caused conditions or

sources ofpollution cannotbe remedied

or would cause more environmental damage to correct than to leave in place;

or(4) Dams, diversions orother types of hydrologic modifications interfere with the attainment ofthe use, where it is not feasible to restore the waterbody to its original condition or to operate such modification in a waythat will maintain the use; or

(5) Physical conditions unrelated to water quality preclude attainment ofthe
use; or

(6) Benefit§ ofattaining the use do not bear a reasonable relationship to the
costs.

(i) States may not modify orreclassify designateduses 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) ofthe 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 AttainabilityAnalysis. 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 ofthe use

versus other factors listed in § 131.10 and the improvement likely to occur in the absence ofpollution;

(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-CostAssessment A benefit-cost assessment should:

(1) Identify the incremental benefits and costs ofattaining a use, after meeting the technology-based requirements ofthe Act, to determine whether the benefits bear a reasonable relationship to the costs;

(2) Describe the value ofthe water body for a use including the social and economic value ofthe use, the public interest in establishing ormaintaining the use, the public benefited, the extent to which another incompatible use is already being made ofthe waterbody, the availability ofalternatives and the effect on downstream uses;

(3) Describe the significance ofthe benefits in comparison to the costs and economic impacts ofattaining 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 ofEPA, are encouraged to review water quality data and information on discharges to identify specific waterbodies where toxic pollutants may be adversely affecting the attainment ofthe designated waterHeinOnline -- 47 Fed. Reg. 49248 1982 

### 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 ifappropriate; and

(3) Establish narrative descriptionli where numerical values cannot be established or to supplement numerical values.

Note.-EPArecommends establishing numerical values wherever practical.

(c) Determination of levelsnecessary toprotect 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 ofadopting 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 othergeneral policies.

(b) Mixing Zones: A limited mixing

zone, serving as a zone ofinitial dilution in the immediate area ofa point or · nonpoint source ofpollution, is allowed

as a matter ofState 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 ofthe 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 ofpermits and determination ofbest 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 ofproductivity, jobs, and/orfinancialstability),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 orpreclude eventual attainment ofthe 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 otherparties.

(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) StateReview: States shall review and, as appropriate, revise their water quality standards at least once during each three year period beginning with the enactment ofthe Federal Water Pollution Control Amendments of 1972. States are not required to review or revise water quality standards for all
waterbodies in the State in any three yearperiod to comply with the requirements ofthis regulation and Section 303(c)(1) ofthe Act. Itis recommended that States select priority
waterbodies 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 ofthe amendments is intended to ensure that
water quality standards influencing contruction grant decisions have been reviewed in accordance with Section 303(c) ofthe Act. Itprohibits the award ofa grant after December 29, 1964, unless the State has completed its review ofthe water quality standards for any segments affected by the grant project. (b) PublicParticipation: 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 ofState 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 ofthe review, any supporting analysis for the use attainability analysis andbenefit-cost assessment, ifperformed, the methodologies used for site-specific criteria development, any general policies applicable to water quality standards and any revisions ofthe standards to the Regional Administrator for review and approval. within 30 days ofadoption ofthe revised standard, or if

no revisions are made as a result ofthe review, within 30 days ofthe completion ofthe 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 ofdisapproval shall specify the changes needed to assure compliance with the requirements ofthe 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 ofa State water quality standard shall be based on the requirements ofthe 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 orEPA promulgates a rule that supersedes the State water quality standard.

(d) EPA shall. at least annually, publish in the Federal Register a notice ofapprovals under this section.

§ 131.22 EPA promulgation of water quality standards.

(a) Ifthe State does not adopt the changes specified by the Regional Administrator within 90 days after notification ofthe RegionalHeinOnline -- 47 Fed. Reg. 49249 1982 

### 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 Bofthese regulations.

Appendix A-Response to Public Comments 5

On July 10, 1978, EPA published an Advanced Notice ofProposed 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 ofcomments from 100 different agencies, organizations, and interest groups were received in
response to the ANPRM. The issues, a summary ofthe public comments, and EPA's response to these comments are set forth below.

A.AttainabilityofUses
1. Issue raisedbyEPA: Should EPA's policy ofdiscouraging downgradings and encouraging upgradings be further refined and/orexplained in regulations?

Public Comment: There was disagreement as to whetherEPA's policy on upgrading and downgrading should be further refined. Roughly twothirds ofthe comments urged EPA to clarify its position through amended regulations. Ofthe thirteen comments which maintained that no further refmement wasnecessary, 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) ofthe 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/orphysical factors orbecause 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 ofFederal Regulalions. 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 ofthe 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, ifappropriate.

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 waterbodies under the Clean Water Act. Effluent dominated
stream segments in highly industrial
areas, streams in arid regions ofthe Southwest, orman-made waterbodies

were cited as examples ofwater 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 andrecreation uses. The proposed regulation provides for an analysis ofthe attainability ofthese

uses on a case-by-case basis. However, EPA does not agree that a determination ofwhether aquatic protection and recreation uses are attainable can be made on a nationwide basis for any class ofwaterbodies, such as effluent dominated streams, streams in arid regions, orman-made waterbodies.

2. Issue raisedbyEPA: 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 ofthe nonpoint source problem as well as the effectiveness of control measures. Many felt that although the knowledge in this area is improving, itis still inadequate.

Response: The regulation requires consideration ofnonpoint source impacts to the extent that cost-effective and reasonable best management practices for nonpoint source control

canbe implemented.

3. Issue raisedbyEPA: Should EPA add the condition that down-gradings would only be allowed ifthe 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 ofthe "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 ofaccurately measuring costs and benefits ofpollution controls are available. An additional concern was that no definition of "reasonable relationship" is commonly accepted.

Response: States may determine whether the benefits ofsignificant water improvements do (or do not) bear a reasonable relationship to the costs.

4. Issue raisedbyEPA: Ifcosts and benefits are to bear a reasonable relationship should more explicit guidance beprovided?

Public Comment: Ofthe 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. Itis a subjective decision and one in which considerations other than costs may have an overriding influence. EPA believes that the determination ofwhat is a "reasonablerelationship" should be made by the State after an opportunity for public comment.

B. Criteria Development

1. IssueRaisedbyEPA: Should EPA's policy ofdisapproving State standards which contain pollutant concentration limits less stringent than EPA's Section 304(a) criteria (absent adequate technicaljustification) be further refined and/orexplained in regulations?

Public Comment:Thirty-two persons responded affirmatively to the question and ofthose, ten suggested that guidance was especially needed on the subject ofEPA's criteria for accepting or rejecting standards.

Response:EPA rescinded its policy of presumptive applicability ofSectionHeinOnline -- 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 ofsite- 

## :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 alternali\e proccc'""'£"!.**Pu-~li.:J** Comment: States should 11<11:e authority to S'2!t waterqwity stanlu.rds andEPA should limit itD role to guid;mce only.

Re,:p;;r;ge: SPction 303(c) ofthe • 11 .r:t requir.!s EPA to review and approve State s:<:ndards and to promulgah! stnndardsifState standards are not consistent with the applicable requirements ofthe Act.**A~>** partofthe

. review ofState waterquality standards, EPA will evaluate whether the critPria**propom~d** will protect the uses designated.

Public Comment: Some commentrrs argued that theburdenofproof should fall onEPA, 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 Statesprovide the justificationfor the criteria includ1!d in their standards. TheStates make the initial determination whether Sectton 304(a) criteria or some other critieria are appropriate for protecting a usein a particularwaterbody. National criteria

arenotpresumed to be applicable.

2. Issue RaisedbyEPA: Should thls "presumptive applicability" be continuedwith respectto the upcoming critiera for the 65 toxic pollutants?

Public Comment:Three-quarteru of the letters on this question maintained that EPA should apply the sumepolicy

on State standards to toxic substances. Two ofthetwenty-five letters expressing this opinion qualifiedt: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 thepolicy ofpresumptive applicability.

3. Issue raisedbyEPA: What fundamentally different factors reiaiing
to specific waters ofa State n;;ght provide rational groundsfnjustif:;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 deviationfrom tl:e national criteria. Several factors noted moF.t frequently by com:nun1t;rs ir.c!udcJ existing wutcrquality**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 ofa 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:til; 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 particularpallui,mt may also change. Naturul background and flow data are also useful ir1 determining whether a particularuse is attainable, as well as for determining the criteria that are necessary to protect the use.

4. Issue raisedbyEPll: How much "proof' should EPA demand before allowing a deriation?

Public Commtmt: Acr.ording to the majority ofcommentstothis question in the Al\PRM, EPA should avoid imposing excessive requirements concerning the

amount ofproofwhich mustbeprovided by States which seek deviations from national water qualiiy criteria. Six individuals argued that the question is improper, since theburden ofproof actuallylies with E.'PA tojustify its · criteria. Thrre others maintained thatno proofwhatsoever is needed since State standards sho"ldLe Bccepted as submitted to EPA. Six maintained that

no specific le'l.·el should be set since the
amount ofproofto be supplied will vary

on a case-by-case basis. Several individuals suggesterl that profem;ional judgmentraih<·r than setrules be utilized int-h:iermining what constitutes adequatejJroof. Nut all commenters agreed. Fu..:1' sug:-4ei>terl thut extensive Scicutifi.; dOt:UiilCHtatiOil shouldUe required ofStates.

Response:EPA has nnt mandated that States submit extensive data in justifying criteria othel' than Section 304{a) criteria. The .J41Gnn+ ofeffort 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 particularpollutnnt'l. The procedures are neitherexr:estive!y complicnte'J nor expensive. C. ToxicPoll!l!unt:; {.l?espun::;afollowii Issue #7belc:w}

1. IssueraisedbyEPA: IfEPA publishes a list ofSection 304!a) criteria pollutants for which water quality stand=u-ds must be c1eveloped, should all Quality Criteriafor Water fRed Bnok) and 65 toxic pollutants be included?

Public Comment: Responses to this question were overwhelmingly negntive. Ofthe fifty-five respondents who answered this r;uestion, only five suggested tl].ut all ofthe Red Book and
65 toxic polh:tants be included on :a list of criteria pollutants.

2. Issue raisedbyEPA: What factors should EPA considerin determining the pollutants to be included?

Public Comment:The comments suggested a variety offactors which EPA shouldconsiderin determining which substances shouldbe listed.The
most frequently identified factors were completenessofdata, persistence, toxicity, effects onhuman health and animal life, and natural background pollution.

3. Issue raisedbyEPA: Should completeness ofthe data basebe a factor?

Public Comment: According to the majority of comments to this question, completeness ofdata should be considered byEPA 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. Issueraised

### byEPA: Should the degree ofa pollutant'spersistence, toxicity, or potential for carcinogenicity be a factor?

Public Comment: The degree ofa pollutant's persistence, toxicity, or potential for carcinogenicity should be considered byEPA according to 

### a very large proportion ofthe comments on this question. All but threeofthe forty-eight
persons who answered this question urged that considerationbe given to these factors.

5. Issue raised

### byEPA: ShouldEPA distinguish betweenpolluta'lts which harm aquatic life and those which harm humans?

Public Com.11ert: In determining which substances**sho:.~ld** be includedin State water qu:1li.ty standards, EPA should distinguish betweenpollutants which harm aquatic life and those which harm humans. This was the opinion of all but five ofthe forty-two persons whoHeinOnline -- 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 raisedbyEPA: 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 oftime limits, ranging from less than one year to

more than three years. The most frequent response was three years, with the large majority ofsuggestions 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 raisedbyEPA: Should EPA directly propose any or all ofthe Section 304(a) criteria without waiting for State action?

Public Comment: According to all but four ofthe forty-five persons who answered this question, EPA should not directly propose any or all ofthe Section 304(a) criteria pollutants without waiting for State action.

Response: EPA is not requiring that
any or all ofthe 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 ifthe toxic pollutants preclude the attainment ofthe designated use and ifthe State believes that the use remains applicable to the
waterbody.

D. Flow

1. Issue raisedbyEPA: Should EPA encourage State adoption ofstream flow and water quantity allocation · prohibitions? How can EPA do so within the confines ofSection 101(g) ofthe Act?

Public Comment: The majority of
commenters answered that EPA should not encourage State adoption ofstream 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 ofstream flow and water allocation and that Section 101(g) ofthe Clean WaterAct 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-2235-41

AGENCY: Environmental Protection Agency.

ACTION: Notice ofpublic 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 ofdate, 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 ofpublic 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 ofGuidance and Field

Tests on Water Body Survey and Assessments for Analyzing the Attainability ofUses 2:3(}-2:45-Break 2:45-4:15-Discussion ofGuidance and Field

Tests on Developing Site-Specific Criteria 4:15-adjournment-Discussion ofBenefitCost 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-openingremarks will begin at 10:00

am.

Copies ofthe 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 ofProposed Rulemaking, Water Quality StandardsRegulation in this issue.

The purpose ofthese meetings will be
to explain the proposed regulation and draft guidance, and to answer questions. Therefore, the format ofthese 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 commentperiod. 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. McCormickPost Office & CourtHouseBldg., Room 208. Boston, Massachusetts 02109.

Date: January 13, 1983. Place: U.S. Environmll!ltal Protection Agency, Jacob Javitz Building, 26Federal 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: October22. 1982. Henry Longest, ActingAssistantAdministrator for Woter.

(FR Doc. 82-29744 Filed 1(}-211-82: 8:45 ami
BILLING CODE 6560-5Qo.M