Water Quality Standards Regulatory Clarifications Proposed Rule

November 14, 2013 Public Webinar #2

Questions and Answers

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Introduction

On November 14, 2013, the U.S. Environmental Protection Agency (EPA) hosted a second public webinar 

to present an overview of the Water Quality Standards (WQS) Regulatory Clarifications Proposed Rule. 

Participants asked clarifying questions, and EPA responded to the questions below. The appendix 

provides a list of questions that EPA did not answer. The November 14 webinar had 437 registered 

participants, and approximately 219 parties joined the webinar. It is possible that participants from the 

same organization or agency joined the webinar from a single location.

Designated Uses

Question: It was stated that the current regulations are insufficient and have not protected water 

quality. Please give specific instances.

Response: One example is when a state has a primary contact recreation use such as swimming, and the 

state is able to show through a use attainability analysis (UAA) that primary contact recreation is not 

attainable. Under the current regulations, a state could possibly not adopt an attainable use in place of 

the unattainable primary contact use. For instance, even though boating or canoeing might be 

attainable, a state does not always adopt the highest attainable use (HAU). This is a situation EPA wants

to fix. 

Question: How many UAAs has EPA ever approved? Please do not guess or provide imaginary answers. 

Requirements are getting much more stringent, to the point that WQS are not able to be met with the 

most advanced technology possible [regardless of cost]. A UAA may be the only way to meet the WQS.

So how many have ever been approved?

Response: In general, EPA has approved more WQS changes resulting from the UAAs than it has 

disapproved characteristics.

Question: What if the highest attainable use is not the best use because of native species that exist in a 

water body? What if you manage for a higher use but cause direct conflict with native species?

Response: Information on native species or endangered species in a water body should be considered as 

part of the analysis to identify the HAU.

Question: Can the 131.10(g) language be clarified as to which factors on which a UAA may be based, 

may be revisited periodically after a UAA is granted?

Response: When a state does a UAA, the regulations require that the state revisits information on any 

waters not currently designated for 101(a)(2) uses to see if there is any new information to indicate that 

those uses are now attainable. If they are, a state would revise its WQS accordingly. (See section 131.21 

of the federal regulation.)

Question: If you replace one 101(a)(2) use with another 101(a)(2) use, like your recreation example, 

which use is closest to a 101(a)(2) use?

Response: The HAU reflects the best possible use for a water body, taking attainability factors into 

consideration—the use closest to “protection and propagation of fish, shellfish, and wildlife or 

recreation” that is also attainable.
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Question: What type of analysis is required for removal of a public water supply use?

Response: Public water supply is considered a non-101(a)(2) use. If a state wants to remove a non101(a)(2) use, it must demonstrate to EPA the need for that use change.; however, for a non-101(a)(2) 

use, that demonstration would not have to be based on one of the 131.10(g) factors. EPA is interested in 

input on what types of factors should be considered in an analysis for removal of a non-101(a)(2) use,

such as a public water supply use. EPA is working to develop guidance on this topic.

Water Quality Standards Variances

Question: Why is there a 10-year cap?

Response: EPA settled on 10 years to balance the administrative expectation of renewing a variance with 

the desire to make sure that there are regular opportunities to revisit the factors. Five years might be 

too short—many pollution problems take longer to address—but EPA determined that 20 years is too 

long. EPA welcomes comment on whether the 10-year cap is appropriate.

Question: What is a point source required to demonstrate regarding cost-effective nonpoint source 

controls? Is it onsite or offsite controls by third parties?

Response: The requirement for cost-effective nonpoint source controls is usually related to water body 

variances. When a state is adopting a water body variance, it has to identify the cost-effective and 

reasonable best management practices (BMPs) relevant to the pollutant in question. 

Question: What would a variance look like in WQS? Would it be specific to a discharger? For instance,

“City A has a variance for zinc.”

Response: The most common are WQS variances for specific dischargers, such as a city’s publicly owned 

treatment works (POTW) or an industrial discharge. In that case, the variance would specify that 

“Discharger X is getting a variance for Y pollutant in a particular water.” There are also multipledischarger variances, which would specify something like “The following five POTWs are receiving a 

variance for X pollutant based on Y analyses in these specific segments.” That variance would also 

include the interim requirements that the dischargers would need to meet. For a water body variance, 

the WQS would identify the entire water subject to the variance.

Question: What is the difference between the 10-year maximum for a WQS variance versus a triennial 

review?

Response: In a triennial review, a state needs to see whether there is any new information to show that 

the variance is no longer appropriate; no justification is needed other than answering public comment. 

When a variance expired, the state would have to go through a full rulemaking process, in which it 

would re-propose the variance, justify it, and resubmit it to EPA. 

Question: Is there a time period designated between when a variance is adopted and when a new 

permit is issued?

Response: An NPDES permit must derive from or comply with applicable WQS. If a variance is adopted in

the middle of an NPDES permit, it is up to the permitting authority to decide whether to revise the water 

quality-based effluent limit (WQBEL) to reflect the variance immediately or wait until the permit is up 

for reissuance. EPA has typically seen that where a state is adopting new or more stringent criteria, the 

variance process would have occurred during the previous permit cycle so that the next permit cycle will 

include the variance.
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Question: Is a variance based on a non-planned change in water quality or is it usually only applied to a 

project that is linked to an NPDES permit, such as a dredging project or restoration?

Response: Neither. Most variances are associated with NPDES dischargers not being able to meet more 

stringent criteria or WQBELs. Often there are economic reasons why the variance might be needed. 

Question: If a permittee cannot ever meet a WQS, is a variance an appropriate mechanism? That is, if 

technology does not exist to treat the wastewater to meet WQS, can a variance be obtained?

Response: This depends on the circumstances. A state can do an analysis using 131.10(g) factor 6 to see 

whether a variance would be an effective tool—the factor 6 analysis would consider the economic and 

social impacts if the facility were to close. A WQS variance is a great tool where a discharger is critical to 

a community and the state does not want to give up on the long-term goal of the water body. The 

situation would be revisited periodically, but the long-term goal would be retained. Where technology

tends to be the limitation, the state can evaluate what would happen if a facility were to shut down.

Question: I would like to understand the three types of variances that are proposed. A dischargerspecific variance is pretty self-explanatory. The discharger will submit all the information that EPA 

expects to see and then the variance will be tailored to the discharger. For a multiple discharger 

variance, the dischargers are supposed to have similar issues so the information submittal is very similar 

to the discharger-specific variance. A water body variance seems very different because there are

potentially a multitude of dischargers. The proposed regulations have explained that the information 

submittal must include the BMPs for nonpoint sources. So, for the point source dischargers, would the 

information submittal need to explain why each of these different discharger types could not implement 

their WQBELs? Presumably, if this information cannot be generated for all the different point source 

discharger types, would the appropriate approach be to submit information for multiple discharger 

variances? 

Response: A water body variance is closest to a time-limited use change. Even though it is called a water 

body variance, it is a little different from the other types of variances. For both multiple discharger

variances and discharger-specific variances, the variance considers each individual discharger and not 

the water body as a whole. For a water body variance, the analysis is similar to that for a designated use 

change. The analysis includes looking at the ability of the water body to attain its designated use and 

whether some time is required to meet the water’s designated use. For a water body variance, one 

would need to consider both point and nonpoint sources.

Question: Also, how will these variances be implemented? Based on the Great Lakes multiple discharger

variances, it seems that individual discharger variances do not require individual approval by EPA if the 

state has a multiple discharger variance. Is this how a multiple discharger variance will be implemented?

Is this also how a water body variance is to be implemented?

Response: For a water body variance, the total water body analysis would be submitted to EPA. The 

state would identify the water body and would implement the variance similarly to how it would 

implement a use change. In the Great Lakes, it is more case-specific. Some states identified a specific set 

of criteria (i.e., characteristics) that a discharger must meet in order to be eligible for the multiple 

discharger variance. The criteria are set in rule and approved by EPA. In each case, it would depend 

upon how specific the multiple discharger variance is as to whether EPA would need to approve the 

criteria that a discharger must meet or each discharger’s application.
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Question: Sorry. I have river way that doesn’t have any water running in it. Even after a good rain there 

is maybe a flow for about 200 yards outside of town then it is gone.

Response: In that situation, a state might want to do a variance or a use change. There is a factor that 

applies to both variances and use changes. This factor talks about natural, ephemeral, or intermittent

streams, and it is intended to address attainability related to low flow. How one uses the factor would 

depend on whether one is considering a use change or a variance.

Question: Is 10 years the maximum for a WQS variance or can it be renewed to be longer than 10 years 

total?

Response: The proposed 10-year maximum is for any given variance. If one can justify that the variance 

needs to be renewed (e.g., when there are mercury-related issues that would take more time), the 

variance can be reissued.

Antidegradation

Question: You mentioned thermal discharges earlier. Could you, briefly, go over that again?

Response: The existing regulation at 131.12(a)(4) addresses requirements for thermal discharges under 

antidegradation. Under that regulation, the ways that a state treats thermal discharges under 

antidegradation should be consistent with CWA section 316. EPA is not proposing any changes to that 

regulation. 

Question: Is the “lowering of water quality” and “alternatives analysis” include requiring a permit limit at 

a lower concentration even though the water quality or use would not be lessened? 

Response: The existing regulations specify that Tier 2 protection is required for water quality above and 

beyond the 101(a)(2) uses. Tier 2 requires that that high level of water quality be maintained. The 

requirement to do a Tier 2 review is initiated when a state or tribe is deciding whether to allow a 

lowering of high water quality, rather than when considering a change to a designated use. Tier 2 review 

is about making a publicly transparent decision when a lowering of water quality is needed to 

accommodate some important economic or social development. It is possible that the outcome of the 

review would show a practicable alternative to the lowering. 

Question: In a case where a state is providing a section 401 certification for a section 404 permitted 

discharge, affecting a Tier 2 water, how does EPA envision an antidegradation alternatives analysis 

relating to alternatives analyses that will be done under the 404(b)(1) guidelines and NEPA for the same 

project? Isn’t there potential for significant overlap, or possibly different agencies reaching different 

conclusions?

Response: This is a multifaceted question. The question centers around a scenario where there is a 

section 404 permitted discharge (i.e., dredge and fill), so this is different from NPDES permits (section 

402). WQS apply broadly to waters of the United States. When there will be an impact on waters of the 

United States, whether through a 404-permitted discharge or a 402-permited discharge, there will be 

consideration of WQS. WQS require that if a state or tribe decides to allow a lowering of water quality, 

that must be based on a Tier 2 review. The review might consider different information depending on 

the type of discharge. The alternatives analysis might look different, but the state or tribe must ensure 

that the decision is in keeping with the WQS. 

Question: What is considered “degrading?”

Response: EPA intentionally did not define degrading. EPA recognizes that there is natural variability in 

water quality, so there is scientific complexity in determining what degradation is. The term degrading

means that something has been done to lower the water quality permanently. EPA recognizes that it is 
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important for states to have flexibility to determine how to quantify and demonstrate degradation, 

provided that the method is scientifically justifiable. 

Triennial Reviews

Question: Will states and tribes be expected to submit a justification for a triennial review?

Response: States and tribes are not required to submit any justification for their triennial reviews. The 

proposed revision clarifies that states and tribes must consider all applicable WQS, including criteria, 

when conducting a triennial review.

Administrator’s Determination

No questions were asked about administrator’s determinations.

Compliance Schedule Authorizing Provisions

Question: Does the change mean that EPA must approve compliance schedules or are states only to 

update their water quality standards code?

Response: This question gets at the difference between a compliance schedule authorizing provision and 

a compliance schedule. This rule is about the compliance schedule authorizing provision. If a state wants 

to use a compliance schedule as a tool in its permitting program, it needs to have authorizing provisions

in state regulations. This provision does not have to be in WQS code; it can be anywhere in binding 

regulations. The key is that EPA has to approve that provision under section 303(c). Once EPA has 

approved the compliance schedule authorizing provision as a WQS, the state/tribe can issue permits 

that contain compliance schedules, and those will still derive from and comply with the WQS.

Question: Will the proposed rule set a limit on length of time for a compliance schedule?

Response: No. There is a requirement in the permitting program that compliance schedules have to 

ensure compliance with the effluent limit as soon as possible. This is done on a permit-by-permit basis. 

Economic Analysis

Question: Is the economic analysis annualized costs to states and tribes to comply with the rule revision, 

the cost to EPA to approve state and tribal standard revisions to comply with EPA’s rule revision, or 

both?

Response: It is for both. In the preamble and economic analysis document, there is information on both 

sets of costs (one-time costs and recurring costs), broken out for states, the agency, and the total for 

both.

Other Clarifying Questions

Question: Under the new WQS proposed rule, what time period do the states and tribes have to 

implement the rule once the final rule is published?

Response: Once EPA finalizes the rule, it is effective immediately. EPA expects that it would take one 

triennial review for states and tribes to implement the new requirements.

Question: Can we get a copy of the presentation slide by email or download?

Response: You can request a copy of the presentation at WQSRegulatoryClarifications@epa.gov. EPA 

may also post the presentation at http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm.
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Appendix A: Questions Not Discussed on the Webinar

Question: If the point of a 10-year term on a variance is to allow for review, then what is the point of 

including variances in a triennial review?

Question: Due to current state and tribal budget shortfalls, is there additional funding by EPA (grants or 

other) that will be available to meet the new requirements? If so, has EPA thought of any matching 

requirements for this funding?