Office of Water

EPA 820B14008

September 2014

Water Quality Standards Handbook

Chapter 1 General Provisions

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Water Quality Standards Handbook

Chapter 1 General Provisions

40 CFR 131.1 131.6

Table of Contents

Introduction 1

1.1 Scope of 40 CFR Part 131 1

1.2 Purpose of Water Quality Standards 1

1.3 Applicability of Water Quality Standards to Waters of the United States 2

1.4 State and Tribal Authority 3

1.4.1 General Provisions 3

1.4.2 State and Tribal Authority over FederallyPermitted Activities 3

1.5 EPA Authority 4

1.5.1 What Provisions Constitute New or Revised Water Quality Standards under Clean Water Act

Section 303 c 4

1.5.2 EPA Authority for Review of State and Tribal Water Quality Standards 6

1.6 Minimum Requirements for State and Tribal Water Quality Standards Submissions 7

1.7 Requirements for States and Authorized Tribes within the Great Lakes Watershed 8

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Introduction

This chapter provides an introduction to several fundamental concepts related to water quality

standards WQS including their purpose basic description waters to which they apply and an overview

of the process for EPA approval of WQS adopted by states and authorized tribes Many of the concepts

introduced in Sections 1.11.6 of this chapter are discussed in greater detail in other chapters of this

Handbook Specifically Section 1.1 describes the scope of the EPA’s WQS regulations at 40 CFR Part

131 and Section 1.2 describes the purpose of WQS Section 1.3 describes the applicability of WQS to

waters of the United States Sections 1.4 and 1.5 describe state and tribal as well as EPA authorities

respectively related to WQS Section 1.6 outlines the minimumrequirements for state and tribal WQS

submissions Finally Section 1.7 describes the additional WQS requirements applicable to states and

tribes within the Great Lakes watershed

1.1 Scope of 40 CFR Part 131

The WQS regulation at 40 CFR Part 131 describes the requirements and procedures for states and

authorized tribes to develop adopt review revise and submit WQS as well as requirements and

procedures for the EPA to review approve disapprove and promulgate WQS as authorized by

Section 303c of the Clean Water Act CWA1 This Handbook serves as guidance for implementing

40 CFR Part 131

1.2 Purpose of Water Quality Standards

WQS are the foundation for a wide range of programs under the CWA They serve multiple purposes

including establishing the water quality goals for a specific waterbody or portion thereof and

providing the regulatory basis for establishing water quality based effluent limits WQBELs beyond

1 Throughout this document the term “states” means the fifty states the District of Columbia the

Commonwealth of Puerto Rico the Virgin Islands Guam American Samoa and the Commonwealth

of the Northern Mariana Islands The term “authorized tribe” or “ tribe” means an Indian tribe

authorized for treatment in a manner similar to a state under CWA Section 518 for purposes of

Section 303c WQS

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the technology based levels of treatment required by CWA Sections 301b and 306 WQS also serve

as a target for CWA restoration activities such as total maximumdaily loads TMDLs

WQS consist of the following elements

_ Designated use or uses such as “supporting aquatic life” or “recreation” which are described

in Chapter 2 of this Handbook

_ Water quality criteria necessary to protect the designated uses which are described in

Chapter 3 of this Handbook

_ Antidegradation requirements which are described in Chapter 4 of this Handbook

_ General policies affecting the application and implementation of WQS that states and

authorized tribes may include at their discretion eg mixing zone variance and critical

low flow policies which are described in Chapter 5 of this Handbook

States and tribes establish WQS to meet the objectives set forth in Section 101a which are as

follows

_ Restore and maintain the chemical physical and biological integrity of the Nation's waters

_ Wherever attainable achieve a level of water quality that provides for the protection and

propagation of fish shellfish and wildlife and recreation in and on the water

Section 303c instructs states and tribes to consider these objectives in establishing WQS as well as

the water’s use and value for public water supplies and agricultural industrial and other purposes

including navigation

WQS establish the environmental baselines used for measuring the success of CWA programs so

adequate protection of aquatic life and wildlife recreational uses and sources of drinking water for

example depends on developing and adopting well crafted WQS CWA programs such as TMDLs

developed under Section 303d Section 305b reporting Section 401 water quality certification

Section 404 permitting for the discharge of dredged and fill material and WQBELs in discharge

permits issued under the National Pollutant Discharge Elimination System NPDES under Section 402

depend on such WQS as discussed in Chapter 7 of this Handbook Setting clear baselines is also

important for other activities including watershed planning protection and restoration as well as

innovations such as market based incentives and trading

1.3 Applicability of Water Quality Standards to Waters of the United States

The CWA requires states and authorized tribes to establish WQS for navigable waters ie “waters of

the United States.” The latter term is specified in Section 502 of the CWA and defined by the EPA and

the Army Corps of Engineers at 40 CFR 230.3 and 33 CFR Part 328 respectively

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The term has also been discussed in EPA guidance and has been further interpreted by a series of

legal decisions in federal courts including the United States Supreme Court In some situations the

EPA and the Army Corps of Engineers have interpreted the case law in making jurisdictional

determinations for specific waterbodies See the EPA’s CleanWater Act Definition of“Waters ofthe

US webpage ”for additional information

The CWA indicates that all of its programs protect waters of the United States and as a result there

is only one definition forthat key threshold term Thus the EPA has not defined waters of the United

States separately for WQS but instead relies on the established definitions interpretations and

decisions described above in administering the WQS program

States and tribes may choose to expand their coverage of WQS beyond waters of the United States to

include other waters as “waters of the state.” For example a state or tribe may specifically designate

isolated wetlands that do not meet the definition of waters of the United States as waters to which

state and tribal WQS apply

1.4 State and Tribal Authority

1.4.1 General Provisions

Under Section 303c of the CWA states and authorized tribes are responsible for reviewing

revising and adopting WQS and submitting such WQS to the EPA for review and approval or

disapproval Consistent with Section 510 states and tribes may develop WQS more stringent than

required by the CWA and the EPA’s implementing regulations at 40 CFR Part 131

1.4.2 State and Tribal Authority over Federally Permitted Activities

Under Section 401 of the CWA states and authorized tribes have authority to issue water quality

certifications for certain federally permitted or licensed activities This authority allows states and

tribes to influence the design and operation of projects affecting waters in their jurisdiction

Certifications under Section 401 ensure that federal permits and licenses for activities that may

result in a discharge comply with applicable CWA requirements including state or tribal WQS as well

as with any other appropriate requirements of state or tribal law Section 401 does not apply to non

federal permits or licenses such as permits issued by a state or tribe authorized to administer the

NPDES or Section 404 programs

Section 401 applies to all federal agencies that grant a license or permit that may result in a

discharge to waters of the United States Examples of such licenses or permits include the following

_ EPAissued permits for point source discharges under Section 402

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_ Permits for discharges of dredged or fill material under Section 404

_ Permits for activities in navigable waters that may affect navigation under Sections 9 and 10

of the Rivers and Harbors Act

_ Federal Energy Regulatory Commission licenses required for hydroelectric projects issued

under the Federal Power Act

Section 401 certifications are generally issued by the state or tribe under whose jurisdiction the

discharge originates

A tribe eligible for treatment in a manner similar to a state TAS for purposes of WQS can likewise

assume authority for issuing Section 401 certifications for project discharges originating in its

reservation once it designates a certifying agency See 40 CFR 121.1 e and 40 CFR 131.4 c The EPA

retains authority for issuing water quality certifications within Indian country where a tribe has not

been approved as eligible for TAS for WQS and water quality certifications

When making a certification decision the certifying entity may grant certification grant certification

with conditions deny certification or waive certification If the state or tribe conditions its

certification all conditions must become terms of the permit or license if it is issued If the certifying

entity denies certification the federal permitting or licensing agency is prohibited from issuing the

permit or license Certifications are subject to review and comment by neighboring states and tribes

and the federal agency must address concerns they raise

For additional information on state and tribal authority under Section 401 see the EPA’s Water

Qualityand 401Certificationwebpage

1.5 EPA Authority

1.5.1 What Provisions Constitute New or Revised Water Quality Standards under Clean Water Act

Section 303 c

The CWA requires states and authorized tribes to adopt new or revised WQS and then submit them

to the EPA for review and approval or disapproval action The EPA has the authority and duty under

CWA Section 303c3 to approve or disapprove new or revised WQS 2

2

In 2004 the United States Court of Appeals for the Eleventh Circuit ruled that the EPA has a

mandatory duty to approve or disapprove a new or revised WQS even if the state did not submit such

new or revised WQS to the EPA for review See FloridaPublicInterestResearch GroupCitizenLobby

Inc etalv EPA 386 F3d 1070 11th Cir2004 Thus the EPA’s authority and duty to approve or

disapprove a new or revised WQS is not dependent upon whether the provision was submitted to the

EPA for review Since the 2004 decision determining which provisions constitute new or revised WQS

that the EPA has the authority and duty to review and approve or disapprove has increasingly

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

WQS that the EPA has the authority and duty to review and approve or disapprove under Section

303c3 If the answer to ALL four questions is “yes,” then the provision would likely constitute a

new or revised WQS that the EPA has the authority and duty to review and approve or disapprove If

the answer to any of the four questions is “no,” then the provision would not likely constitute a new

or revised WQS that the EPA has the authority and duty to review and approve or disapprove

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

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

in Section 303ac and from the EPA's regulation at 40 CFR 131.3 i which specifies that

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

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

pursuant to state or tribal law

AND

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

protect designated uses andor antidegradation requirements for waters of the United

States The CWA the EPA’s implementing regulations and case law have broadly established

three core components of WQS which are designated uses criteria and antidegradation

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

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

AND

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

or instream level of protection eg antidegradation requirements for waters of the United

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

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

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

may be a new or revised WQS that the EPA has the authority and duty to review and approve

or disapprove under Section 303c3 regardless of whether that expression applies

immediately or will be applied in the future EPA action on provisions that may not apply

immediately will ensure that the EPA is able to provide input as early as possible in the

state’s or tribe’s WQS development process thus enabling states tribes and the EPA to carry

out their functions under the CWA in the most efficient expedient manner possible

AND

become more difficult as state and tribal water programs are becoming more integrated with

implementation policies and procedures

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

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

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

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

WQS would meet this consideration In contrast a provision that simply implements a WQS

without revising it would not constitute a new or revised WQS

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

EPA has the authority and duty to review and approve or disapprove under Section 303c3 While

such revisions do not substantively change the meaning or intent of the existing WQS treating such

nonsubstantive changes in this manner ensures public transparency concerning which provisions

are effective for purposes of the CWA The EPA notes that the scope of its action in reviewing and

approving or disapproving such nonsubstantive changes would extend only as far as the actual

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

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

WQS Challenges to the EPA’s prior approval of the underlying WQS would be subject to any

applicable statute of limitations and prior judicial decisions

For additional information on determining what provisions constitute new or revised WQS see the

EPA’s document What isaNew orRevised Water QualityStandard UnderCWA Section 303c

FrequentlyAsked Questions 2012

1.5.2 EPA Authority for Review of State and Tribal Water Quality Standards

Once the EPA determines that a provision meets the four considerations for a new or revised WQS

described in Section 1.5.1 of this chapter the next step is for the EPA to determine whether it can

approve the provision

Section 303c of the CWA requires the EPA to review and approve or disapprove new or revised state

and tribal WQS based on the requirements of the CWA The CWA specifies that the EPA must approve

new or revised WQS within 60 days after the date of submission or disapprove such WQS within 90

days after the date of submission

Consistent with Section 510 states and authorized tribes may adopt any requirements regarding

control or abatement of pollution as long as such requirements are not less stringent than the

requirements of the CWA Thus the EPA is generally not authorized to disapprove a state or tribal

WQS on the basis that the EPA considers the WQS to be too stringent

If the EPA determines that the new or revised state or tribal WQS are consistent with the CWA and 40

CFR Part 131 the EPA approves the WQS However the EPA disapproves the WQS if they are not

consistent with the CWA In the case of disapproval the EPA must promptly propose federal WQS

under Section 303c4A and promulgate such WQS within 90 days of proposal provided that the

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state or tribe does not make appropriate corrections within 90 days The EPA may approve some

provisions and not others within the same WQS submission

The EPA may also promulgate a new or revised federal WQS where the Administrator determines

under Section 303c4B that such a WQS is necessary to meet the requirements of the CWA and

no WQS have been submitted for the EPA to disapprove under Section 303c4A This situation

could occur for instance if the EPA determines that particular WQS provisions are missing from a

state’s or tribe’s currently applicable WQS or that the current WQS do not otherwise meet the

requirements of the CWA

Chapter 6 of this Handbook describes the EPA’s WQS review process in more detail

1.6 Minimum Requirements for State and Tribal Water Quality Standards

Submissions

When states or authorized tribes submit new or revised WQS for the EPA to review they must include

both the WQS provisions themselves as well as certain accompanying information consistent with 40

CFR 131.6 and 131.20 c The submitted WQS provisions may include one or more of the following

elements

_ Use designations consistent with the provisions of Sections 101a2 and 303c2 of the

CWA

_ Water quality criteria sufficient to protect the designated uses

_ An antidegradation policy consistent with 40 CFR 131.12.3

Additionally under 40 CFR 131.13 states and tribes may at their discretion include in their WQS

general policies affecting the application and implementation of WQS eg mixing zone variance

and critical lowflow policies Whenever a state or tribe submits new or revised WQS provisions the

submission must also include the following items

_ Methods used and analyses conducted to support the WQS provisions

_ Certification by the state attorney general tribal legal authority or other appropriate legal

authority within the state or tribe that the WQS were duly adopted pursuant to state or tribal

law

_ General information to aid the EPA in determining the adequacy of the scientific bases of the

WQS that do not include the uses specified in Section 101a2 as well as information on

3 States and authorized tribes must also identify the methods for implementing the antidegradation

policy in accordance with 40 CFR 131.12 a

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general policies applicable to state and tribal WQS that may affect their application and

implementation

The EPA may also request additional information from the state or tribe to aid in determining the

adequacy of the WQS

1.7 Requirements for States and Authorized Tribes within the Great Lakes

Watershed

Water QualityGuidance fortheGreatLakesSystemat 40 CFR Part 132 which arose as part of a

larger effort called the Great Lakes Initiative or GLI imposes additional requirements on the WQS

TMDL and NPDES permit programs of Great Lakes states and authorized tribes in accordance with

Section 118 c 2 of the CWA 4 This regulation applies with respect to waters within the Great Lakes

watershed which includes the Great Lakes themselves and all the streams rivers lakes and other

waterbodies within the portion of the Great Lakes drainage basin under jurisdiction of the United

States

States and tribes with waters in the Great Lakes watershed must comply with both 40 CFR Part 131

and 40 CFR Part 132 Thus the EPA recommends that such states and tribes use this Handbook

which is focused on 40 CFR Part 131 in conjunction with 40 CFR Part 132 in establishing and

managing their WQS programs As a general matter a state or tribe may not use a provision in 40

CFR Part 131 to negate a counterpart provision in 40 CFR Part 132 or vice versa

The EPA has established the online GreatLakes InitiativeClearinghouse as a central location for

information on water quality criteria toxicity data exposure parameters and other supporting

documents used in developing WQS in the Great Lakes watershed States and tribes can use the

Clearinghouse to help derive criteria for pollutants without specific numeric criteria published in 40

CFR Part 132 The target audience for the Clearinghouse is state and tribal environmental agencies in

the Great Lakes watershed as well as other interested parties with a technical background

4 Although CWA Section 118c2 uses the term “guidance,” the EPA issued 40 CFR Part 132 as a

binding regulation because the statute requiresGreat Lakes states and authorized tribes to adopt

provisions consistent with the guidance

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