U.S. Environmental Protection Agency


### Documentation of OMB Review Under Executive Order 12866 Title of Action: W a

t e r Q u a l i t y S t a n d a rd s R e gu l a t o r y R e

v i s io n s ; F i n a l R u l e
Docket# : E P

A

- H Q

- O

W

- 2010

- 060 6 FRL# : 9921

- 21

- O

W RIN : 2040

- A F 16 This action was submitted to the Office of Management and Budget (OMB) for review under Executive Order (E.O.) 12866 , titled Regulato ry Planning and Review (58 FR 51735, October 4, 1993). Whenever EPA makes publicly available a regulatory action that was reviewed under E.O. 12866, section 6(a)(3)(E) of the E.O. directs the Agency to also: (1) Make available to the public a copy of the information that was provided to OMB’s Office of Information and Regulatory Affairs (OIRA) for review under the E.O., i.e. , the text of the draft regulatory action and, if applicable, an assessment of the potential costs and benefits, as well as additional information for those actions that are determined to be economically significant under the E.O. (Information requirements are described in sections 6(a)(3)(B) and (C)). (2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was subsequently issued, using a method that is complete, clear, and simple. (3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA. For this regulatory action, were substantive changes made to information reviewed under E.O. 12866? [Please check the appropriate answer.] No. [In the docket, include the information identified in item (1) below.] Yes. [In the docket, include the information identified in items (1)

– (3) below.] Accordingly, the Agency has included this form and the following information in the public docket for this regulatory action: [Please check the appropriate information.] (1) A copy of the information that was provided to OIRA for review under the E.O. (2) Documentation of any substantive changes made to the draft regulatory text that was submitted to OIRA when compared with what was subsequently made publicly available. The documentation is provided on the pages following this form. Changes made at the suggestion or recommendation of OIRA, if any, are clearly identified through attribution to OIRA. EPA has used one or more of the following methods to note changes: [Select the appropriate option(s).] (a) Redline - Strikeout

– A copy of the draft regulatory action submitted, using redline

strikeout to show the substantive changes that were made. (b) Hand Markup

– A copy of the draft regulatory action submitted, using handwritten notes to show the substantive changes that were made. (c) Note to the file

- A document that identifies the substantive changes that were made, with page and paragraph references to the draft regulatory action that was submitted. If you have any questions about this regulatory action or this documentation, please call the contact: Name: J AN I T

A A G U I RR E Em ail: AGUIRRE.JANITA@EPA.GOV Phone: 202

- 566

- 1149 Revised 05/05/2010*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 1 of 131 EO 12866_OW WQS 2040
- AF 16 FINAL_FRN_201 50702

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA
- HQ
- OW
- 2010
- 0606; [FRL_XXXX
- X ] ]

RIN 2040
- AF 16

Water Quality Standards Regulatory Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule.

_______________________________________________________________________ SUMMARY: EPA update s the federal water quality standards (WQS) regulation at 40 CFR Part
131 to provide a better

- defined pathway for states and authorized tribes to improve water quality and protect high quality waters. The WQS regulation establishes a strong foundation for water quality management programs, including water quality assessments , impaired waters lists, and total maximum daily loads, as well as water quality

- based effluent limits in National Pollutant Discharge Elimination System (NPDES) discharge permits

. In this rule, EPA is revising six*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 2 of 131 program areas to improve the WQS regulati on’s effectiveness , increase transparency, and enhance opportunities for meaningful public engagement at the state, tribal and local levels

. Specifically, in this rule EPA ( A ) clarifies what constitutes an Administrator’s determination that new or revised WQS are necessary ; ( B ) refines how states and authorized tribes assign and revise designated uses for individual water bodies ; ( C ) revises the triennial review requirements to clarify the role of new or updated Clean Water Act ( CWA ) section 304(a) criteria recommendations in the d evelopment of WQS by states and authorized tribes, and applicable WQS that must be reviewed triennially ; ( D ) establishes stronger antidegradation requi rements to enhance protection of high quality waters and promote s public transpa rency ; ( E ) adds new regulatory provisions to promote the appropriate use of WQS variances ; and ( F ) clar ifies that a state or authorized tribe must adopt, and EPA must approve, a permit compliance schedule authorizing provision prior to authorizing the use of schedules of compliance for water quality

based effluent limits ( WQBELs) in NPDES permits. In total , these revisions to the WQS regulation enable states and authorized tribes to more effectively address complex water quality challenges , protect existing water quality , and facilitate environmental improvements. The final rule also lead s to better understanding and proper use of available CWA tools by promoting transparent and engaged public participation. This action finalizes the WQS regulation revisions initially proposed by EPA on September 4, 2013. 1

DATES : This final rule is effective on [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] , 60 days after publication in the Federal Register

.

1 See Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54517 (September 4, 2013).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 3 of 131 ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA
- OW
2010
- 0606 . All documents in the docket are listed on the www.regulations.gov website

. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Pu blicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Office of Water Docket Center, EPA/DC, William Jefferson Clinton West Building, Room 3334, 1 301 Constitution Ave., NW, Washington, DC 20004. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566

- 1744, and the telephone number for the Office of Water Docket Center is (202) 566

- 2426. To view docket materials, call ahead to schedule an appointment. Every user is entitled to copy 266 pages per day before incurring a charge. The Docket Center may charge $0.15 for each page over the 266

- page limit, plus an administrative fee of $25.00.

FOR FURTHER INFORMATION CONTACT : Janita Aguirre, Standards and Health Protection Division, Office of Science and Technology (4305T), Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washin gton DC 20460; telephone number: (202) 566

- 1860; fax number: (202) 566

- 0409; email address: WQSRegulatoryClarifications@epa.gov

.

SUPPLEMENTARY INFORMATION: The supplementary information section is organized as follows:*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 4 of 131 Table of Contents

I. Gen eral Information
A. Does This Action Apply to Me?
B. What is the Statutory and Regulatory History of the Federal WQS Regulation?
C. What Environmental Issues Do t he Final Changes to the Federal WQS Regulation Address ?
D. How was this Final Rule Developed?
E. When Does t his Action Take Effect?
F. Severability

II. Rule Revisions Addressed in Today’s Rule
A. Administrator’s Determinations that New or Revised WQS are Necessary
B. Designated Uses
C. Triennial Reviews
D. Antidegradation
E. WQS Variances
F. Provisions Authorizing the Use of Schedules of Compliance for WQBELs in NPDES Permits
G. Other Changes

III. Economic Impacts on State and Authorized Tribal WQS Programs*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 5 of 131 I V. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Ex ecutive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132 : Federalism
F. Executive Order 13175 : Consultation and Coordination with Indian Tribal
Governments
G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low

- Income Populations
K. Congressional Review Act (CRA)

I. General Information

A. Does this Action Apply to Me?*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 6 of 131 The entities potentially affected by today’s rule are shown in the t able below.

Category Examples of potentially affected entities
States and Tribes States and authorized tribes responsible for administering or overseeing water quality programs

. 2 Industry Industries discharging pollutants to waters of the United States. Municipalities Publicly owned treatment works or other facilities discharging pollutants to waters of the United States.

This table is not exhaustive, b ut rather it provide s a guide for entities that may be directly or indirectly affected by this action. Citizens concerned with water quality and other types of entities may also be interested in this rulemaking, although they might not be directly impacted

. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. What is the Statutory and Regulatory History of the Federal WQS Regulation?

The C lean W ater A ct (CWA or the Act)

— initially enacted as the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92

‒ 500) and subsequent amendments

— determined

2 Hereafter referred to as “states and authorized tribes.” “State” in the CWA and this document refers to a state, the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. “Authorized tribes” refers to those federally recognized Indian tribes with authority to administer a CWA WQS program.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 7 of 131 the basic structure in place today for regulating pollutant discharges into waters of the United
States. The objective of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” and to achieve “wherever attainable, an interim goal of water quality which provides for the protection and p ropagation of fish, shellfish, and wildlife and provides for recreation in and on the water” (CWA sections 101(a) and 101(a)(2)).

The CWA establishes the basis for the water quality standards (WQS or standards) regulation and program. CWA section 303 addr esses the development of state and authorized tribal WQS that serve the CWA objective for waters of the United States

. The core components of WQS are designated uses, water quality criteria, and antidegradation requirements

. Designated uses establish the e nvironmental objectives for a water body and water quality criteria 3 define the minimum conditions necessary to achieve those environmental objectives. The antidegradation requirements provid e a framework for maintaining and protecting water quality that h as already been achieved.

CWA section 301 establishes pollutant discharge restrictions for point sources. Specifically, it provides that “the discharge of any pollutant by any person shall be unlawful” except in compliance with the terms of the Act, including industrial and municip al effluent limitations specified under CWA sections 301 and 304 and “any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedule of compliance, established pursuant to any [s] tate law or regul ations.”

3 Under CWA section 304(a), EPA publishes recommended water quality criteria guidance that consists of scientific information regarding concentrations of specific chemicals or levels of parameters in water that protect aquatic life and human health. CWA sect ion 303(c) refers to state and authorized tribal w ater quality criteria that are subject to EPA review and approval or disapproval.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 8 of 131 The CWA gives states and authorized tribes discretion on how to control pollution from nonpoint

sources. A lthough the CWA includes specific requirements for the control of pollution from certain discharges, state and authorized tribal WQS established pursuant to CWA section 303 apply to the water bodies themselves, regardless of the source(s) of pollution/poll utants. Thus, the WQS express the desired condition and level of protection for a water body, regardless of whether a state or authorized tribe chooses to place controls on nonpoint source activities, in addition to point source activities required to obta in permits under the CWA. Section 303(c) of the Act also requires that states and authorized tribes hold a public hearing to review their standards at least once every three years (i.e., triennial review) , and that EPA review and approve or disapprove any new or revised state and authorized tribal standards. Furthermore , if EPA disapproves a state’s or authorized tribe’s WQS under CWA sections 303(c)(3) and 303(c)(4)(A), or if the Administrator makes a determination under CWA section 303(c)(4)(B) that a new or revised WQS is necessary, EPA must propose and promulgate f ederal standards for a state or authorized tribe, unless the state or authorized tribe develops , and EPA approves , its own WQS first.

EPA established the core of the WQS regulation in a final rule issued in 1983. That rule strengthened provisions that had been in place since 1977 and codified them as 40 CFR Part 131

. 4 In support of the 1983 regulation, EPA issued a number of guidance documents, such as the Water Quality Standards Handbook (WQS H andbook), 5 that provide guidance on the interpretation and implem entation of the WQS regulation and on scientific and technical analyses

4 54 F ed. Reg. 51400 ( November 8, 1983 ). 5 F irst edition, December 1983 ; second edition, EPA 823

- B

- 94

- 005a, August 1994.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 9 of 131 that are used in making decisions that would impact WQS. EPA also developed the Technical Support Document for Water Quality

- Based Toxics Control 6 that provides additional guidance for implementing state and authorized tribal WQS.

EPA modified the 40 CFR Part 131 regulation twice since 1983. First, in 1991 pursuant to section 518 of the Act , EPA added §§ 131.7 and 131.8 which extended to Indian tribes the opportunity to administer the WQS program and outlined dispute resolution mechanisms

. 7 Second, in 2000 , EPA finalized § 131.21(c)

- (f), commonly known as the “Alaska Rule,” which specifies that new and revised standards adopted by states and authorized tribes and submitted to EPA after May 30, 2000 , become applicable standards for CWA purposes only when approved by EPA. 8

In 1998, EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) to discuss and invite comment o n over 130 aspects of th e f ederal WQS regulation and program, with the goal of identifying specific changes that might strengthen water quality protection and restoration, facilitate watershed management initiatives, and incorporate evolving water quality criteria and assessment science into state and authorized tribal WQS programs

. 9 Although EPA chose not to move forward with a rulemaking after the ANP R M, EPA identified a number of high priority issue areas for which the Agency developed guidance, provided technical assistance, and continued further discussion and dialogue to en sure more effective program implementation.
T oday’s action is part of EPA’s ongoing effort to clarify and strengthen the WQS program.

6 First edition, EPA 44 0 /4

- 85

- 032, September 1985 ; revised edition, EPA 505/2

- 90

- 001, March 1991

. 7 56 F ed. Reg. 64893 ( December 12, 1991)

. 8 65 F ed. R eg. 24641 ( April 27, 2000)

. 9 63 F ed. R eg. 36742 ( July 7, 1998).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 10 of 131 C. What Environmental Issues Do the Final Changes to the Federal WQS Regulation Address ?

Since EPA first established the WQS regulation in 1983, it has acted as a powerful force to prevent pollution and improve water quality by providing a foundation for a broad range of water quality management programs. Since 1983, however , diverse and complex challenges have arisen, including new types of contaminants, pollution stemming from multiple sources, extreme weather events, hydrologic alteration, and climate change

- related impacts. These challenges

ne cessitate a more effective, flexible and practicable approach for the implementation of WQS and protecting water quality. Additionally, extensive experience with WQS implementation by states, authorized tribes, and EPA revealed a need to update the regulat ion to help meet these challenges.

T his rulemaking revise s the requirements in six program areas : (1) Administrator’s determination that new or revised WQS are necessary, (2) designated uses, (3) triennial reviews, (4) antidegradation , (5) WQS variances, and (6) permit compliance schedule authorizing provisions.

The provisions related to designated uses help states and authorized tribes restore and maintain resilient and robust ecosystems by requiring that states and authorized tribes evaluate and adopt the highest attainable use when changing designated uses. The rule provides clearer expectations for when an analysis of attainability of designated uses is or is not required

. Such clarity*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 11 of 131 allows for better and more transparent communication among EPA, st ates , authorized tribes, stakeholders and the public about the designated use revision process , and the appropriate level of protection necessary to meet the purposes of the CWA.

Today’s rule ensure s better protection and maintenance of high quality water s that have better water quality tha n minimally necessary to support propagation of fish, shellfish, and wildlife, and recreation in and on the water. Through protection of habitat, water quality, and aquatic community structure, high quality waters are be tter able to resist stressors, such as atmospherically deposited pollutants, emerging contaminants, severe weather events, altered hydrology, or other effects resulting from climate change. Today’s rule strengthens the evaluation used to identify and manag e high quality waters and increases the opportunities for the public and stakeholders to be involved in the decision

- making process. Specifically, there must be a transparent, public, robust evaluation before any decision is made to allow lowering of high quality water. Thus, this rule will lead to better protection of high quality waters.

The rule addresses WQS variances and permit compliance schedules , which are two CWA tools which can be used where WQS are not being attained. The provisions related to WQS variances allow states and authorized tribes to address water quality challenges in a transparent and predictable way

. The rule also includes provisions for authorizing the use of permit compliance schedules to ensure that a s tate or authorized tribal decision to allow permit compliance schedules includes public engagement and tranparency . These two tools help states and authorized tribes focus on making incremental progress in improving water quality, rather than*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 12 of 131 pursuing a do wngrade of the underlying water quality goals through a designated use change , when the current designated use is difficult to attain

.

Lastly, the Administrator’s determination and triennial review provisions in today’s rule promote public transparency a nd allow for effective communication among EPA, states, authorized tribes, and stakeholders to ensure WQS continue to be consistent with the CWA and EPA’s implementing regulation. Meaningful and transparent involvement of the public is an important
compone nt of triennial review when making decisions about whether and when criteria will be adopted or revised to protect designated uses. The rule provides more clearly defined and transparent requirements , so that states and authorized tribes consider the lates t science as reflected in the CWA section 304(a) criteria recommendations , and the public understands the decisions made.

D. How was this Final Rule Developed?

In developing today’s rule, EPA considered the public comments and feedback received from stakeholders. EPA provided a 120

- day public comment period after the proposed rule was published in the Federal Register on Septe mber 4, 2013

. 10 In addition, EPA held two public webinars, a public meeting, and a tribal consultation to discuss the contents of the proposed rule and answer clarifying questions in order to allow the public to submit well

- informed comments.

Over 150 organizatio ns and individuals submitted c omments on a range of issues . EPA also

10 78 Fed. Reg. 54517

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 13 of 131 received 2,500 letters from individuals associated with mass letter writing campaigns. Some comments addressed issues beyond the scope of the proposed rulemaking

. EPA did not expand the scope of the rulemaking or mak e regulatory changes to address the substance of these
comments. In e ach section of today’s preamble , EPA discusses certain public comments so that the public is fully aware of its position

. For a full response to these and all other comments, see
EPA’s Res ponse to Comments document in the official public docket.

In addition, EPA met with all stakeholders who requested time to discuss the contents of the proposed rule. Such discussions occurred with members of state and tribal organizations and the environ mental community. Records of each meeting are included in the official public docket.

E. When Does this Action Take Effect?

This regulation is effective [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER] . For judicial review purposes, this rule is promulgated as of 1 p.m. E S T (Eastern Standard Time) on the effective date, which will be 60 days after the date of publication of the rule in the Federal Register

.

States and authorized tribes are subject to the requirements of tod ay’s rule on the effective date of the rule. EPA’s expectation is that, where a new or revised requirement necessitates a change
to state or authorized tribal WQS, such revisions will occur within the next triennial review that the state or authorized trib e initiates after publication of the rule.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 14 of 131 As a general matter, when EPA reviews new or revised state or authorized tribal WQS it reviews the provisions to determine whether they are consistent with the CWA and regulation applicable at the time of EPA’s r eview. However, for a short period of transition, EPA will review the provisions and approve or disapprove based on whether they are consistent with the CWA and the relevant Part 131 regulation that is in effect prior to the final rule ’s effective date if (1) they were submitted before the effective date of this final rule or (2) if a state or authorized tribe has held its public hearing(s) and the public comment period has closed before the effective date of this rule and the state or authorized tribe has submitted th e new or revised WQS within nine months of the effective date of this final rule. This approach is reasonable for the transition period because EPA recognizes that states and authorized tribes may have invested a significant amount of resources drafting new or revised WQS for the public to comment on without the benefit of knowing EPA’s final rule requirements and the state or authorized tribe may not have had sufficient notice to alter the WQS prior to submission to EPA. It would be inefficient and unfair for the state or authorized tribe to have to re

- propose and re

- start the rulemaking process when it can address the issue in the next triennial review consistent with the final rule

. In addition, changing the applicable federal standards that w ill be basis of EPA’s review after the public has put in the effort to provide constructive comments to the state or authorized tribe would be inefficient and could render the comments obsolete. Nine months is a reasonable timeframe to accommodate states and authorized tribes that have legislative processes such that new or revised WQS cannot be submitted to EPA until the legislature has passed the regulation at its soonest legislative session aft er close of the public comment period. Except for the circumstances outlined in this paragraph regarding the transition period, EPA will work with*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 15 of 131 states and authorized tribes to ensure that new or revised WQS meet the requirements of the final rule.

F. S everability

In the event that a court sets aside any part of this rule, EPA intends for the remainder of the rule to remain in effect to the extent possible. EPA will advise the public as to the effect of any such action by a court.

II . Rule Revisions Ad dressed in Today’s Rule EPA provides a comparison document showing the revisions made by this final rule,and a second document showing the revisions made between the proposed and final rule. EPA has posted b oth documents at http://water.epa.gov/lawsregs/la wsguidance/wqs_index.cfm

.

A. Administrator’s Determinations that New or Revised WQS are Necessary

What Does Today’s Rule Provide and Why?

Open communication among states, tribes and EPA facilitates the sharing of information to ensure that WQS continue to adequately protect waters as new challenges arise. However, the public has occasionally mistaken such communication from EPA for a “ determination ” by the*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 16 of 131 Administr ator that new or revised WQS are necessary under CWA section 303(c)(4)(B) (hereafter referred to as “Administrator’s determination”). 11

With the clarification provided by today’s rule, stakeholders and the public can readily distinguish Administrator’s de terminations from routine EPA communications on issues of concern and recommendations regarding the scope and content of state and authorized tribal WQS. Today’s rule minimizes the potential for stakeholders to misunderstand EPA’s intent with its communica tions and allows EPA to provide direct and transparent feedback. It will also preserve limited resources that w ould otherwise be spent resolving the confusion through litigation.

An Administrator’s determination is a powerful tool , and today’s rule ensures that it continues to be used purposefully and thoughtfully. Today’s rule contains two requirements related to an Administrator’s determination at § 131.22(b) . The first requirement provides that , in order for a document to constit ute an Administrator’s determination, it must be signed by the Administrator

or his or her duly authorized delegate . The second requirement is that such a determination must include a statement that the document is an Administrator’s determination for purp oses of section 303(c)(4)(B) of the Act. Th is requirement makes clear that this provision applies to Administrator’s determinations made under CWA section 303(c)(4)(B) rather than determinations made under CWA section 303(c)(4)(A).

11 A listing of Administrator’s determinations that new or revised WQS are necessary to meet the requirements of the CWA pursuant to section 303(c)(4)(B) can be found at: http://water.epa.gov/scitech/swguidance/standards/wqsregs.cfm#federal under the heading “ Federal Clean Water Act Determinations that New or Revised Standards Are Necessary

. ” EPA intends to post future Administrator’s determinations pursuant to CWA secti on 303(c)(4)(B) to its website.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 17 of 131 Section 303(c)(4) of t he Act provides two different scenarios under which the Administrator has the authority to “promptly prepare and publish propose d regulations setting forth a revised or new water quality standard for the navigable waters involved ” following some sort of de termination. A determination made pursuant to section 303(c)(4)(A) of the Act is different and distinct from an Administrator’s determination made pursuant to section 303(c)(4)(B) of the Act. Section 303(c)(4)(A) of the Act gives EPA the authority to propose regulations where states or authorized tribes have submitted new or revised WQS that the Administrator “determines” are not consistent with the Act . In this instance, EPA disapprove s new or revised WQS and specif ies the changes necessary to meet CW A requirements. If a state or authorized tribe fails to adopt and submit the necessary revisions within 90 days after notification of the disapproval determination, EPA must promptly propose and promulgate f ederal WQS as specified in CWA section 303(c)(4)( A) and 40 CFR 131.22(a). Today’s regulation does not address or affect this authority.

Absent state or authorized tribal adoption or submission of new or revised WQS, section 303(c)(4)(B) of the CWA gives EPA the authority to determine that new or revised WQS are necessary to meet the requirements of the Act. Once the Administrator makes such a determination , EPA must promptly propose regulations setting forth new or revised WQS for the waters of the United States involved, and must then promulgate such WQ S, unless a state or authorized tribe adopts and EPA approves such WQS first

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 18 of 131 Commenters expressed concern that the proposed rule was not clear with respect to which of these authorities was addressed in this rule. EPA’s final rule makes clear that these requirements only refer to Administrator’s determinations under CWA section 303(c)(4)(B).

Based on comments , EPA reviewed the use of the term “ s tates” throughout the regulation and found that, in § 131.22(b), this term did not accurately describe the scope of waters for which the
CWA provides authority to the EPA Administrator

. Thus, consistent with CWA section 303(c)(4), this rule provides that the Administrator may propose and promulgate a regulation applicable to one or m ore “navigable waters” after determining that new or revised WQS are necessary to meet the requirements of the CWA. Consistent with the statute’s plain language, this authority applies to all navigable waters located in any state or in any area of Indian

c ountry. 12

What Did EPA Consider?

EPA considered finalizing the revision to § 131.22(b) as proposed

. However, EPA decided it was important to clarify that this provision only address es Administrator’s determinations made pursuant to section 303(c)(4)(B) of the Act , which was not clear given the comments received

. EPA also considered foregoing revision s to § 131.22(b) altogether. However, this option would not meet EPA’s p olicy objective , described previously , which many commenters supported.

12 Indian country i s defined at 18 U.S.C. § 1151. A prior example of federally promulgated WQS in Indian country can be found at 40 CFR 131. 35, federally promulgated WQS for the Colville Confederated Tribes Indian Reservation (54 FR 28625, July 6, 1989).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 19 of 131 What Is EPA’s Position on Certain Public Comments?

Some commenters requested that EPA clarify whether this revision will affect the petition process under Section 553(e) of the Administrative Procedure Act (APA) (5 U.S.C. 553(e)). Today’s action does not affect the public’s ability to petition EPA to issue , amend, or repeal a rule. Nor does today’s action affect the Agency’s obligations for responding to an APA petition or the ability of a petitioner to challenge the Agency for unreasonable delay in responding to a petition. In the event that the Administra tor grants a petition for WQS rulemaking and makes an Administrator’s determination that new or revised WQS are necessary, this provision does not affect the obligation the Agency has to promptly propose and promulgate f ederal WQS.

Some commenters request ed that EPA clarify how the Administrator delegates authority. The laws, Executive Orders, and regulations that give EPA its authority typically, but not always, indicate that “the Administrator” shall or may exercise certain authorities. In order for othe r EPA management officials to act on behalf of the Administrator, the Administrator must delegate the authority granted by Congress or the Executive Branch. The Administrator may do so by regulation or through the Agency’s delegation process by signing an official letter that is then maintained as a legal record of authority.

B. Designated Uses

What Does Today’s Rule Provide and Why?*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 20 of 131 CWA section 303(c)(2)(A) requires that new or revised WQS shall consist of designated uses and water quality criteria bas ed on such uses. It also requires that such WQS shall protect the public health or welfare, enhance the quality of the water, and serve the purposes of the Act. Section 101(a) of the CWA provides that the ultim ate objective of the Act is to restore and to maintain the chemical, physical, and biological integrity of the Nation’s waters. The national goal in CWA section 101(a)(2) is water quality that provides for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water “wherever attainable.” EPA’s WQS regulation at 40 CFR Part 131 , specifically §§ 131.10(j) and (k), interprets and implements these provisions through requirements that WQS protect the uses specified in CWA section 101(a)(2) unless states and authori zed tribes show those uses are unattainable through a use attainability analysis (UAA) consistent with EPA’s regulation, effectively creating a rebuttable presumption of attainability. Although the term “rebuttable presumption” is not a term explicitly use d in EPA’s re gulation, EPA’s 1983 regulation and the rebuttable presumption 13 were upheld as a reasonable interpretation of the statute ( Idaho Mining Association v Browner, 90 F. Supp. 2d 1078 (D. Idaho 2000) )

. Another district court used EPA’s interpretati on as a basis for its ruling that a state’s water quality standards were inconsistent with the CWA because they did not provide for the uses specified in CWA section 101(a)(2) and there was no evidence that the state conducted a use attainability analysis. 14 Today’s rule does not revise or expand this longstanding interpretation . EPA is discussing the rebuttable presumption in the preambles to the proposed and final rule s , even though it is a separate requirement, because the “highest attainable

13 EPA first used the term “rebuttable presumption” when promulgating Federal WQS for the State of Idaho. 14 See 62 FR 23003, April 28, 1997 , http://www.gpo.gov/fdsys/pkg/FR

- 1997

- 04

- 28/pdf/97

- 10723.pdf

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 21 of 131 use” require ment applies after the state or authorized tribe has demonstrated that CWA section 101(a)(2) uses are not attainable.

CWA s ection 303(c)(2)(A) also requires states and authorized tribes to establish WQS “taking into consideration their use and value” for a number of purposes, including those addressed in section 101(a)(2) of the Act. EPA’s final 1983 regulation at § 131.10(a) implements this provision by requiring that the “[s]tate must specify appropriate water uses to be achieved and protected” and that the “classification of the waters of the [s]tate must take into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and o ther purposes including navigation.”

Today’s revisions to the designated use requirements improve the process by which states and authorized tribes designate and revise uses to better help restore and maintain resilient water quality and robust aquatic ecosystems. The revisions reduce potential confusion and conflicting interpretations of the regulatory requirements for establishing designated uses that can hinder environmental progress. Designated uses drive state and authorized tribal cr iteria development and water quality management decisions. Therefore, clear and accurat e designated uses are essential in maintaining the actions necessary to restore and protect water quality and to meet the goals and objectives of the CWA.

The CWA dist inguishes between two broad categories of uses: uses specified in section 101(a)(2) of the Act and uses specified in section 303(c)(2) of the Act. For the purposes of*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 22 of 131 today’s final rule, the phrase “uses specified in section 101(a)(2) of the Act ” refers to uses that provide for the protection and propagation of fish , 15 shellfish, and wildlife, and recreation in and on the water, as well as for the protection of human health when consuming fish, shellfish, and other aquatic life. A “sub

- category of a use spec ified in section 101(a)(2) of the Act” refers to any use that reflects the subdivision of uses specified in section 101(a)(2) of the Act into smaller, more homogenous groups for the purposes of reducing variability within the group. 16 A “non

101(a)(2) use” is a use that is not related to the protection or propagation of fish, shellfish, wildlife or recreation in or on the water. Non

- 101(a)(2) uses include those listed in CWA section 303(c)(2), but not those listed in CWA section 101(a)(2), including use for public water supply, agriculture, industry, and navigation.

For uses specified in section 101(a)(2) of the Act, today’s rule clarifies when a UAA is and is not required. Today’s rule also makes clear that once a state or authorized tribe has rebutted the presumption of attainability by demonstrating through a required UAA that a use specified in section 101(a)(2) of the Act is not attainable, it must adopt the highest attainable use (HAU), as defined in today’s rule. The UAA requirement s in today’s rule i mplement CWA sections 303(c)(2)(A) and 101(a)(2), and specifically the “wherever attain able” language, to continue to provide an avenue for states and authorized tribes to show that uses specified in section 101(a)(2) of the Act are not attainable. The HAU requirement ensures that state s and authorized trib es

15 To achieve the CWA’s goal of “wherever attainable...protection and propagation of fish...,” all aquatic life, including aquatic invertebrates, must be protected because they are a critical compon ent of the food web. 16 A sub

- category of a use specified in section 101(a)(2) of the Act is not necessarily less protective than a use specified in section 101(a)(2) of the Act. For example, a cold water aquatic life use is considered a use sub

- category, but provides “for the protection and propagation of fish, shellfish and wildlife,” consistent with CWA section 101(a)(2). On the other hand, a secondary contact recreation use (i.e., a use, such as wading or boating, where there is a low likelihood of full body immersion in water or incidental ingestion of water) is considered a use sub

category, but does not provide “for recreation in and on the water,” consistent with CWA section 101(a)(2).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 23 of 131 strive to restore and maintain the chemical, physical and biological integrity of the Nation’s
waters to the maximum extent feasible

.

For non

- 101(a)(2) uses, today’s rule provides that a UAA is not r equired when a state or authorized tribe removes or revises a non

- 101(a)(2) use, but clarifies that states and authorized tribes must still submit documentation consistent with CWA section 303(c)(2)(A) to support the state or authorized tribe’s action. This requirement recognizes that states’ and authorized tribes’ decisions about non

- 101(a)(2) uses must be consistent with the statute and transparent to the public and EPA. Today’s rule also provides a regulatory definition for a non - 101(a)(2) use at §
13 1.3(q)

. Non

- 101(a)(2) uses are separate and distinct from uses specified in CWA section 101(a)(2) and sub

- categories of such uses

.

To clarify when a UAA is and is not required, today’s rule revises §§ 131.10(g) and 131.10(j) so that when the provisions a re read together, it is clear that the factors at § 131.10(g) are only required to be considered when the state or authorized tribe must conduct a UAA under § 131.10(j). In addition, today’s rule revises § 131.10(k) into new §§ 131.10(k)(1) and 131.10(k)(2 ) to eliminate a possible contradiction with § 131.10(j)(2), as described in the preamble to the proposed rule. 17

Section 131.10(j) describes when a UAA is required. Section 131.10(k) specifi es when a UAA is not required. Further, the definition of a UAA at § 131.3(g) says that a UAA “is a structured scientific assessment of the factors affecting the attainment of the use which may include

17 See 78 F ed. R eg. 54525 (September 4, 2013).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 24 of 131 physical, chemical, biological, and economic factors as described in § 131.10(g).” S e ction 131.10(g) provides that states and authorized tribes may remove a designated use if they can demonstrate that attaining a designated use is not feasible because of one of six specified factors

.

EPA revises § 131.10(j)(1) to clarify that a UAA is req uired whenever a state or authorized tribe designates uses for the first time that do not include the uses specified in section 101(a)(2) of the Act. Section 131.10(j)(1) also clarifies that a UAA is required where a state or authorized tribe has previousl y designated uses that do not include the uses specified in section 101(a)(2) of the
Act. 18 EPA revises § 131.10(j)(2) to clarify that a UAA is required when removing or revising a use specified in section 101(a)(2) of the Act as well as when removing or re vising a sub

- category of such a use. These revisions also clarify that when adopting a sub

- category of a use specified in section 101(a)(2) of the Act with less stringen t criteria, a UAA is only required when the criteria

are less stringent than the previously applicable criteria. EPA made corresponding revisions to § 131.10(g) to explicitly reference § 131.10(j). Today’s rule also includes editorial changes to § 131.10(g) that are not substantive in nature. Lastly, EPA establ ishe s a new §§ 131.10(k)(1) and
131.10 (k)(2) to explain when a UAA is not required.

To ensure that states and authorized tribes adopt WQS that co ntinue to serve the Act’s goal of water quality that provides for the uses specified in section 101(a)(2) of t he CWA to the extent attainable, today’s rule revises § 131.10(g) to provide that where states and authorized tribes adopt new or revised WQS based on a required UAA, they must adopt the HAU as defin ed at § 131.3(m)

. Th ese new requirement s make clear that states and authorized tribes may remove

18 This provision in cludes situations where a state or authorized tribe adopts for the first time, or previously designated, only non

- 101(a)(2) uses.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 25 of 131 unattainable uses , but they must retain and designate the attainable use (s)

. The final regulation does not prohibit states and authorized tribes from removing a designated use specified in CWA section 101(a)(2) or a subcategory of such a use, altogether, where demonstrated to be unattainable. For example, a state or authorized tribe may remove an aquatic life use if it can demonstrate through a UAA that no aquatic life use or subcategory of aquatic life use is attaina ble. EPA expects such situations to be rare; however to clarify that this outcome is possible, EPA adds the following to the definition of highest attainable use at § 131.3(m): “ There is no required hi ghest attainable use where the S tate [ or authorized tri be ] demonstrates the relevant use specified in section 101(a)(2) of the Act and subcategories of such a use are not attainable. ” If a state or authorized tribe removes the designated use, altogether, and in the same action adopts another designated use in a different broad use category (e.g., agricultural use, recreational use), it may appear as though the state or authorized tribe intends the newly adopted use to be the highest attainable use. In fact, this is a separate state or tribal decision in the same rulemaking.

The concept of HAU is fundamental to the WQS program. Adopting a use that is less than the HAU could result in the adoption of water quality criteria that inappropriately lower water quality and could adversely affect aquatic ecosystems and the health of the public recreating in and on such waters. For example, a state or authorized tribe may be able to demonstrate th at a use supporting a particular class of aquatic life is not attainable. However, if some less sensitive aquatic organisms are able to survive at the site under current or attainable future conditions, the
state ’s or authorized tribe ’s WQS are not continu ing to serv e the goals of the CWA by removing the aquatic life use designation and applicable criteria altogether without adopting an alternate*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 26 of 131 CWA section 101(a)(2) use or sub

- category of such a use that is feasible to attain , and the criteria that protec t that use

. EPA’s regulation at §§ 131.5(a)(2), 131.6(c), and 131.11(a) explicitly requires states and authorized tribes to adopt water quality criteria that protect designated uses.

Commenters expressed concern that the proposed definition of HAU used ov erly subjective terminology that would make it difficult for states and authorized tribes to adopt an HAU that would not be challenged by stakeholders. Today’s rule also includes the following language in the definition at § 131.3(m): “ Highest attainable use is the modified aquatic life, wildlife, or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, based on the evaluation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use and any other information or analyses that were used to evaluate attainability. There is no required highest attainable use where the State demonstrates the relevant use specified in section 101(a)(2) of the Act and subcategories of such a use are not attainable. ” Th is definition includes specific terms to ensure that the resulting HAU is clear to states, authorized tribes, stakeholders and the public

.

First, the word “modified” makes clear that when adopting the HAU, the state or authorized tribe is adopting a different use within the same broad CWA section 101(a)(2) use category , if any such use is attainable . For example, if a state or authorized tribe removes a warm water aquatic life us e, then the HAU is a modified version of the warm water aquatic life use, such as a “limited warm water aquatic life use.” The definition makes clear that states and authorized tribes are not required to determine whether one broad use category is better t han another (e.g., to determine that a recreation use is better than an aquatic life use).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 27 of 131 Second, EPA adds the phrase “based on the evaluation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use and any other information or analyses t hat were used to evaluate attainability” to today’s final HAU definition to be clear that the HAU is the use that results from the process of determining what is attainable

. For example, where the state or authorized tribe demonstrates that a use cannot be attained due to substantial and widespread economic and social impacts, the state or authorized tribe may then determine the HAU by considering the use that is attainable without incurring costs that would cause a substantial and widespread economic and s ocial impact consistent with 131.10(g)(6)

. A lthough t he definition continues to include the terms “highest” and “closest to,” which some commenters said were subjective terms, the new definition does not necessarily mean that the use with the most numerica lly stringent criteria must be designated as the HAU. The CWA does not require states and authorized tribes to adopt designated uses to protect a level beyond what is naturally occurring in the water body. Therefore, a state’s or authorized tribe’s determi nation of the HAU must take into consideration the naturally expected condition for the water body or waterbody segment. For example, Pacific Northwest states provide specific levels of protection for different life stages of salmonids. While the different life stages require different temperature criteria, the designated use with the most numerically stringent temperature criterion may not be required under § 131.11(a) to protect the HAU, if the life stage that temperature criterion protects does not
natur ally occur in that water body or waterbody segment.

When conducting a UAA and soliciting input from the public, states and authorized tribes should consider not only what is currently attained, but also what is attainable in the future after*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 28 of 131 achievable gains in water quality are realized. EPA recommends that such a prospective analysis involve the following:

• Identifying the current and expected condition for a water body;

• Evaluating the effectiveness of best management practices (BMPs) and associated
wat er quality improvements;

• Examining the efficacy of treatment technology from engineering studies; and

• Using water quality models, loading calculations, and other predictive tools.

The preamble to the proposed rule also provided several examples of how sta tes and authorized tribes can articulate the HAU. These examples include using an existing designated use framework, adopting a new statewide sub

- category of a use, or adopting a new sub

- category of a use that uniquely recognizes the limiting condition for a specific water body (e.g., aquatic life limited by naturally high levels of copper).

One example of where a state adopted new statewide subcategories to protect the highest attainable use was related to a class of waters the state defines as “effluent dependent waters. ” The state conducted a UAA to justify the removal of the aquatic life use in these waters. It was not feasible for these waters to attain the same aquatic life assemblage expected of waters assigned the statewide aquatic life use. The st ate identified the highest attainable aquatic life use for these waters and created two new subcategories (effluent

- dependent fisheries and protect effluent

- dependent non

- fish bearing waters) with criteria that are sufficien tly protective of these uses. Th ese EPA

- approved subcategories reflect the aquatic life use that can be attained in these waters, while still protecting the effluent dependent aquatic life.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 29 of 131 Some commenters expressed concern with the difficulty of articulating a specific HAU because do ing so may require additional analyses. Where this may be the case, an alternative method of articulating the HAU can be for a state or authorized tribe to designate for a water body a new or already established , broadly defined HAU (e.g., limited aquatic life use) and the criteria associated with the best pollutant /parameter levels attainable based on the information or analysis the state or authorized tribe used to evaluate attainability of the designated use . This is reasonable because the state or authorized tribe is essentially articulating that the HAU reflects whatever use is attained when the most protective, attainable criteria are achieved.
One example where a state used this alternative method involved adoption of a process by which the sta te can tailor site

- specific criteria to protect the highest attainable use as determined by a
UAA. EPA approved the state’s adoption of a broad “Limited Use” and the subsequent adoption of a provision to allow the development of site

- specific criteria for certain pollutants to protect that use. The “Limited Use” shares the same water quality criteria as the state’s full designated use for recreation and fish and wildlife protection “except for any site specific alternative criteria that have been establishe d for the waterbody.” Such site

- specific criteria are limited to numeric criteria for nutrients, bacteria, dissolved oxygen, alkalinity, specific conductance, transparency, turbidity, biological integrity, or pH. The state restricts application of the “Lim ited Use” to waters with human induced physical or habitat conditions that prevent attainment of the full designated use for recreation and fish and wildlife protection , and to either (1) wholly artificial waters, or (2) altered waterbodies dredged and fil led prior to November 28, 1975. Through this process, the state is able to articulate the HAU by identifying the most protective, attainable criteria that can be achieved.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 30 of 131 W here a state or authorized tribe does not already have a statewide use in their re gulation that is protective of the HAU, the state or authorized tribe will need to find an approach that meets the requirements of the CWA and § 131.10 (g). States and authorized tribes are not limited by the examples described in this section and can choose a different approach that align s with their specific needs, as long as the ir preferred approach is protective of the HAU and is consistent with the CWA and § 131.10. 19

As an example of how a UAA inform s the identification of the HAU, consid er a state or authorized tribe with a designated aquatic life use and associated dissolved oxygen criterion. The
state or authorized tribe determines through a UAA that a particular water body cannot attain its designated aquatic life use due to naturally occurring dissolved oxygen concentrations that prevent attainment of the use (i.e., the use is not attainable pursuant to § 131.10(g)( 1 )). Such an analysis also shows that the low dissolved oxygen concentrations are not due to anthropogenic sources, but ra ther due to the bathymetry of the water body . The state or authorized tribe then evaluates what level of aquatic life use is attainable in light of the naturally low dissolved oxygen concentration , as well as any data analyses that were used to evaluate at tainability (e.g., biological data ). The state or authorized tribe concludes that the naturally low dissolved oxygen concentration precludes attainment of the full aquatic life use, and requires an alternative

19 Section 131.10(c) provides that states and authorized tribes “ may adopt sub

- categories of a use...” (emphasis added). This pro vision generally allows states and authorized tribes to adopt sub

- categories of the uses specified in the CWA. Today’s rule is finalizing revisions to § 131.10(g) to specify that when a state or authorized tribe conducts a UAA required by § 131.10(j), and the state or authorized tribe revises its WQS to something other than a use specified in section 101(a)(2) of the Act, the state or authorized tribe must adopt the highest attainable modified aquatic life, wildlife, and/or recreation use (i.e., a sub

- categ ory of an aquatic life, wildlife, and/or recreation use). Where a UAA is not required by § 131.10(j), the state or authorized tribe retains discretion to choose whether to adopt sub

- categories of uses per § 131.10(c).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 31 of 131 dissolved oxygen criterion that protects the “ highest” but limited aquatic life that is attainable. Once this analysis is complete and fully documented in the UAA, the state or authorized tribe would then designate the HAU and adopt criteria to protect that use.

To clarify what is required when a st ate or authorized tribe adopts new or revised non

- 101(a)(2) uses, today’s rule finalizes a new paragraph (3) at § 131.10(k) to specify that states and authorized tribes are not required to conduct a UAA whenever they wish to remove or revise a

non - 101(a)(2 ) use, but must meet the requirements in § 131.10(a). Today’s rule defines a non 101(a)(2) use at § 131.3(q) as: “ any use unrelated to the protection and propagation of fish, shellfish, wildlife or recreation in or on the water .” While the CWA specifically calls out the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water as the national goal, wherever attainable, this does not mean that non - 101(a)(2) uses are not important. T oday’s rule revises § 1 31.10(a) to be explicit that where a state or authorized tribe is adopting new or revised designated uses other than the uses specified in section 101(a)(2) of the
Act , or removing designated uses, it must submit documentation justifying how its considerat ion of the use and value of water for those uses listed in § 131.10(a) appropriately supports the state’s or authorized tribe’s action. EPA refers to this documentation as a “use and value demonstration.” Even though §§ 131.10(a) 20 and 131.6 , 21 taken togethe r, already require states and authorized tribes to submit a use and value demonstration, EPA makes this requirement

20 Section 131.10(a) already provided t hat states and authorized tribes “ must specify appropriate water uses to be achieved and protected” and that the “class ification of the waters of the [s] tate must take into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and othe r purposes including navigation ” ). 21 Section 131.6(a) and (b) already provided that states and authorized tribes must submit to EPA for review “ u se designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the Act ” and “[m] ethods used and analyses conducted to support WQS revisions .”*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 32 of 131 explicit to av oi d any future confusion

. A UAA can also be used to satisfy the requirements at § 131.10(a).

EPA encourages states and autho rized tribes to work closely with EPA when developing a use and value demonstration. States and authorized tribes must consider relevant provisions in § 131.10, including downstream protection (§ 131.10(b)) and existing uses of the water (§ 131.10(h)(1)). EPA recommends states and authorized tribes also consider a suite of other factors, including, but not limited to:

• Relevant descriptive information (e.g., identification of the use that is under consideration for removal, location of the water body/waterbo dy segment, overview of land use patterns, summary of available water quality data and/or stream surveys, physical information, information from public comments and/or public meetings, anecdotal information, etc.),

• Attainability information (i.e., the § 13 1.10(g) factors as described previously, if applicable),

• Value and/or benefits (including environmental, social, cultural, and/or economic value/benefits) associated with either retaining or removing the use, and

• Impacts of the use removal on other designa ted uses.

As an example of what a use and value demonstration for a non

- 101(a)(2) use can look like, consider a small water body that a state or authorized tribe generically designated as a public water supply as part of a statewide action. T he state or a uthorized tribe decides there is no use and value in retaining such a use for that water body. The state or authorized tribe could provide*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 33 of 131 the public and EPA with documentation that public water supply is not an existing use (e.g., there is no evidence tha t the water body was used for this purpose and the water quality does not support this use); t he nearby population uses an alternative drinking water suppl y; and projected population trends suggest that the current supply is sufficient to accommodate future growth

. S tate s and authorized tribe s must make this documentation available to the public prior to any public hearing, and submit it to EPA with the WQS revision

.

What Did EPA Consider?

In developing today’s rule, EPA considered foregoing the rev isions to §§ 131.10(g), 131.10(j), and 131.10(k), but this option would not clarify when a UAA is or is not required and thus not accomplish the Agency’s objectives. EPA considered finalizing the revisions to §§ 131.10(g),
131.1 0(j), and 131.10(k)(1) and 1 31.10(k)(2) as proposed; however, in response to comments received, EPA made revisions to better accomplish its objectives.

EPA considered for e going the HAU requirement at § 131.10(g), but this option would not ensure
states ’ and authorized tribes ’ WQS continue to serve the purposes of the Act . EPA also considered finalizing the requirement as proposed but not finalizing a regulatory definition; however, the absence of a regulatory definition could lead to confusion and hinder environmental protection.

EPA considered not specifying what is required when removing or revising a non

- 101(a)(2) use in today’s rule; however, multiple commenters indicated that EPA’s proposed rule only specified*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 34 of 131 that a UAA is not required to remove or revise a non

- 101(a)(2) use and did not specify what is required. Given the confusion about existing requirements, EPA decided to make the requirement explicit in § 131.10(a) and § 131.10(k)(3).

What Is EPA’s Position on Certain Public Comments?

N umerous commenters disagreed with EPA’s position that the consumption of aquatic life is a use specified in section 101(a)(2) of the Act and requested that EPA document the rationale for this position. Based on the CWA section 303(c)(2)(A) requirement that WQS protect public health, EPA i nterpr ets the uses under section 101(a)(2) of the Act to mean that not only can fish and shellfish thrive in a water body, but when caught, they can also be safely eaten by humans. 22

EPA first articulated this interpretation in the National Toxics Rule 19 92. 23 F or example, EPA specified that all waters designated for even minimal aquatic life protection (and therefore a potential fish and shellfish consumption exposure route) are protected for human health. EPA also described its interpretation in the October 2000 Human Health Methodology. 24 Consistent with this interpretation, most states have adopted huma n health criteria as part of their aquatic life uses, as the purpose of the criteria is to limit the amo unt of a pollutant in aquatic species prior to consumption by humans. However, states and authorized tribes may also choose to adopt human health criter ia as part of their recreational uses, recognizing that humans will consume fish and shellfish after fis hing, which many states consider to be a recreational use. EPA leaves

22 http://water.epa.gov/scitech/swguidance/standards/upload/2000_10_31_standards_shellfish.pdf

. 23 57 Fed. Reg. 60859 (December 22, 1992). See also 40 CFR 131.36. 24 http://water.epa.gov/scitech/swguidance/standards/criteria/health/methodology/index.cfm ; Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health , see pages 4

- 2 and 4

- 3.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 35 of 131 this flexibility to states and authorized tribes as long as the waters are protecting humans from adverse effects of consuming aquatic life, unless the state or authorized tribe has show n that consumption of aquatic life is unattainable consistent with EPA’s regulation.

EPA also received comments requesting clarification on existing uses. EPA notes that in addressing these comments today, EPA is not reopening or changing this regulatory provision. The WQS regulation at § 131.3(e) defines an existing use as “those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards.” EPA provided additional clarification on exi sting uses in the background section of the proposed preamble, 25 as well as in a September 2008 letter from EPA to the State of Oklahoma. 26 Specifically, EPA explained that existing uses are known to be “actually attained” when the use has actually occur red and the water quality necessary to support the use has been attained. EPA recognizes, however, that all the necessary data may not be available to determine whether the use actually occurred or the water quality to support the use has been attained. EP A provides substantial flexibility to states and authorized tribes to evaluate the strength of the available data and information where data may be limited, inconclusive, or insufficient to determine whether the use has occurred and the water quality neces sary to support the use has been attained. In this instance, states and authorized tribes may decide that based on such information, the use is indeed existing.

Some commenters expressed concern that this position supports the removal of a designated use
in a situation where the use has actually occurred but the water quality necessary to protect the

25 78 Fed. Reg. 54523 (September 4, 2013). 26 http://water.epa.gov/scitech/swguidance/standards/upload/Smithee

- existing

- uses - 2008

- 09

- 23.pdf

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 36 of 131 use has never been attained, as well as in a situation where the water quality has been attained but the use has not actually occurred. Such a position may b e contrary to a state’s or authorized tribe’s environmental restoration efforts or water quality management goals. For example, a state or authorized tribe may designate a highly modified water body for primary contact recreation even though the water qual ity has never been attained to support such a use. In this situation, if the state or authorized tribe exercises its discretion to recognize such an existing use, then consistent with EPA’s regulation the designated use may not be removed.

If a state or a uthorized tribe chooses not to recognize primary contact recreation a s a n existing use in this same situation, the state or authorized tribe still must conduct a UAA to remove the primary contact use

. The state or authorized tribe may only remove the prima ry contact recreation use if the use is not an existing use ; the use cannot be attained by implementing effluent limits required under sections 301(b) and 306 of the Act and by implementing cost

effective and reasonable best management practices for nonpoi nt source control ( §§ 131.10(h)(1) and 131.10(h) (2)) ; and the state or authorized tribe can demonstrate that one of the factors listed at § 131.10(g) precludes attainment of the primary contact recreation use. The combination of all the requirements at § 1 31.10 ensures that states and authorized tribes designate attainable uses consistent with the goals of the Act unless the state or authorized tribe has demonstrated that such a use is not attainable . It also requires states and authorized tribes to maintai n uses that have actually been attained. T oday’s rule will require that state s and authorized tribe s adopt the HAU to ensure that what can be attained is protected.

C. Triennial Reviews*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 37 of 131 What Does Today’s Rule Provide and Why?

The CWA and EPA’s imp lementing regulation require state s and authorized tribe s to hold, at least once every three years, a public hearing for the purpose of reviewing applicable WQS (i.e. a triennial review). The CWA creates a partnership between states and authorized tribes, and EPA, by assigning states and authorized tribes the primary role of adopting WQS (CWA sections 101(b) and 303), and EPA the oversight role of reviewing and approving or disapproving state and authorized tribal WQS (CWA section 303(c))

. Consistent with this partnership, the statute also assigns EPA the role of publishing national recommended criteria to assist states and authorized tribes in establishing water quality criteria in their WQS (CWA section 304(a)(1)). States and authorized tr ibes have several options for developing and adopting chemical, physical and biological criteria. They may use EPA’s CWA section 304(a) criteria recommendations, modify EPA’s CWA section 304(a) criteria recommendations to reflect site

- specific conditions, or establish criteria using other scientifically defensible methods. Ultimately, states and authorized tribes must adopt criteria that are scientifically defensible and protective of the designated use to ensure that WQS continue to “protect the public hea lth or welfare, enhance the quality of water and serve the purposes of” the Act (CWA section 303(c)(2)(A)).

In some cases, states and authorized tribes do not transparently communicate with their public their consideration of EPA’s CWA section 304(a) cri tera recommendations when deciding whether to revise their WQS. As a result, the public may be led to believe that states and authorized tribes are not considering some of the latest science that is reflected in EPA’s new or*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 38 of 131 updated CWA section 304(a) crit era recommendations

. To ensure public transparency and clarify existing requirements, today’s final rule contains two revisions to the triennial review requirements at 40 CFR 131.20(a). First, the rule requires that if states and authorized tribes choose n ot to adopt new or revised criteria during their triennial review for any parameters for which EPA has published new or updated criteria recomm endations under CWA section 304(a) , they must explain their decision when reporting the results of their triennial review to EPA under CWA section 303(c)(1) and 40 CFR 131.20(c). Second, the rule clarifies the “applicable water quality standards” that states and authorized tribes mu st review trie nnially.

The first revision addresses the role of EPA’s CWA section 304(a) criteria recommendations in triennial reviews. While states and authorized tribes are not required to adopt EPA’s CWA section 304(a) criteria recommendations, they m ust consider t hem. EPA continues to invest significant resources to examine evolving science for the purpose of updating existing and developing new CWA section 304(a) criteria recommendations to help states and authorized tribes meet the requirements of the Act. Those recommendations are based on data and scientific judgments about pollutant concentrations and environmental or human health effects. 27

EPA’s proposed rule, requiring states and authorized tribes to “consider” EPA’s new or updated CWA section 304(a) criteria recommendations, raised several commenter questions and concerns about how states and authorized tribes were to “document” such consideration. Commenters also expressed concern that EPA was overstepping its authority by dictating how states and

au thorized tribes conduct their triennial reviews and by requiring states and authorized tribes to

27 EPA’s compilation of national water quality criteria recommendations, published pursuant to CWA section 304(a), can be found at: http://water.epa.gov/scitech/swguidance /standards/criteria/current/index.cfm

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 39 of 1 31 adopt EPA’s CWA section 304(a) criteria recommendations. Today’s rule focuses on how a state or authorized tribe explains its decisions to EPA ( and the public) rather than on how the state or authorized tribe conducts its review. EPA acknowledges that because the CWA section 304(a) criteria are national recommendations, site

- specific physical and/or chemical water body characteristics and/or varying sensitivitie s of local aquatic communities may not be precisely reflected

. While s tates and authorized tribes are not required to adopt the CWA section 304(a) criteria recommendations , t hey are required under the Act and EPA’s implementing regulations to adopt criteri a that protect a pplicable designated uses and that are based on sound scientific rationale. Since EPA revises its CWA section 304(a) recommendations periodically to reflect the latest science, it is important that states and authorized tribe s consider EPA’ s new or updated recommendations and explain any decisions on their part to not incorporate the latest science into their WQS.

An important component of triennial reviews is meaningful and transparent involvement of the public and intergovernmental c oord ination with local, state, f ederal, and tribal entities. Communication with EPA (and the public) about these decisions provides opportunities to assist
state s and authorized tribe s in improving the scientific basis of its WQS and can build support for
state and authorized tribal decisions. Such coordination ultimately increases the effectiveness of the state and authorized tribal wate r quality management processes. Following today’s rulemaking, when states and authorized tribes conduct their next trienn ial review they must provide an explanation for why they did not adopt new or revised criteria for parameter s for

w hich EPA has published new or updated CWA section 304(a) criteria recommendations since*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 40 of 131 May 30, 2000. 28 During the triennial reviews that foll ow, states and authorized tribes must do the same for criteria related to parameters for which EPA has published CWA section 304(a) criteria recommendations since the states’ or authorized tribes’ most recent triennial review. This requirement applies rega rdless of whether new or updated CWA section 304(a) criteria recommendations are more stringent or less stringent than the state’s or authorized tribe’s applicable criteria because all stakeholders should know how the state or authorized tribe considered t he CWA section 304(a) criteria recommendations when determining whether to revise their own WQS following a triennial review

. A state ’s or authorized tribe’s explanatio n may be situation

- specific and could involve consideration of priorities and resources. EPA will not approve or disapprove this explanation pursuant to CWA section 303(c) nor will the explanation be used to disapprove new or revised WQS that otherwise meet the requirements of the CWA. Rather, it will inform both the public and EPA of the sta te’s or authorized tribe’s plans with respect to adopting new or revised criteria in light of the latest science. EPA strongly encourages states and authorized tribes to include their explanation on a publically accessible website or some other mechanism t o inform the public of their decision.

The second revision addresses confusion expressed in public comments regarding the meaning of § 131.20(a) so that states, authorized tribes and the public are clear on the scope of WQS to be reviewed during a trienni al review. By not addressing this issue directly in the proposal, EPA may have i nadvertently created ambiguity by implying that the only criteria states and authorized tribes need to re

- examine during a triennial review are those criteria related to the pa rame ters for

28 WQS adopted and submitted to EPA by states and authorized tribes on or after May 30, 2000, must be approved by EPA before they become effective for CWA purposes, including the establishment of water quality

- based ef

fluent limits or development of total maximum daily loads (40 CFR 131.21, 65 FR 24641, April 27, 2000).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 41 of 131 which EPA has published new or updated CWA section 304(a) criteria recommendations. However, EPA’s intent was not to qualify the initial sentence in § 131.20(a) regarding “applicable water quality standards” (which are all WQS either approved or p romulgated by EPA for a state or tribe) but to supplement it by adding more detail regarding the triennial review of any and all existing criteria established pursuant to 40 CFR 131.11. Thus, today’s rule clarifies what the regulation means by “applica ble water quality standards.” 29

When conducting triennial reviews, states and authorized tribes must review all applicable WQS adopted into state or tribal law pursuant to §§ 131.10

– 131.15 30 and any f ederally promulgated WQS

. 31 Applicable WQS specifically include designated uses (§ 131.10), water quality criteria (§ 131.11), antidegradation (§ 131.12), general policies (§ 131.13), WQS variances (§ 131.14), and p rovisions authorizing the use of schedules of compliance for WQBELs i n NPDES p ermits (§ 131.15). 32 If, during a triennial review, the state or author ized tribe determines that the
f

ederally promulgated WQS no longer protect its waters, the state or authorized tribe should adopt new or revised WQS. If EPA approves such new or revised WQS, EPA would withdraw the f ederally promulgated WQS because they would no longer be necessary.

29 EPA published the What is a New or Revised Water Quality Standard Under CWA 303(c)(3) Frequently Asked Questions (EPA

- 820

- F

- 12

- 017, October 2012) to consolidate EPA’s interpretation (informed by the CWA, EPA’s implementing regulation at 40 CFR Part 131, and relevant case law) of what constitutes a new or revised WQS that the Agency has the CWA section 303(c)(3) authority and duty to approve or disappro ve ( http://water.epa.gov/scitech/swguidance/standards/upload/cwa303faq.pdf ). 30 Definitions adopted by states and authorized tribes are considered WQS when they are inext ricably linked to provisions adopted pursuant to §§ 131.10

– 131.15. 31 A ny WQS that EPA has promulgated for a state or tribe are found in 40 CFR Part 131, Subpart D. See also: http://water.epa.gov/scitech/swguidance/standards/wqsregs.cfm#proposed

. 32 Today’s rule finalizes § 131.14 (WQS Variances) and § 131.15 (Provisions Authorizing the Use of Schedules of Compliance for WQBELs in NPDES permits). For detailed discussio n about these sections, see II.E and II.F of this document, respectively.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 42 of 131 Some states and authorized tribes target specific WQS during an individual triennial review to balance resources and priorities. The final rule does not affect states’ or authorized tribes’ discretion to identify such priority areas for action. However, the CWA and EPA’s implementing regulation require the state or authorized tribe to hold, at least once every three years, a public hearing 33 for the purpose of reviewing applicable WQS, not just a subset of WQS that the state or authorized tribe has identified as high priority. In this regard, states and authorized tribes must still, at a minimum, seek and consider public comment on all applicable WQS.

What Did EPA Consider ?

EPA considered finalizing the revision to § 131.20(a) as proposed. However, given public commenters’ confusion and concerns, as discussed previously, EPA ultimately rejected this option. EPA also c onsidered for e go ing revisions to § 131.20(a) altogether. However, this option would not ensure that states and authorized tribes adopt criteria that reflect the latest science , and thus EPA rejected it.

What Is EPA’s Position on Certain Public Comments?

One commenter requested a longer period than three years for states and authorized tribes to consider new or updated CWA section 304(a) criteria recommendations because it was neither reasonable nor feasible to conduct a comprehensive review and rulemaking in this timeframe, including the public participation component. Other commenters suggested that EPA allow

33 For detailed discussion about today’s final rule for § 131.20(b), related to public participation, see section II.G of this document.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 43 of 131 triennial reviews to occur “periodically,” while so me suggested that nine or 12 years would be a more appropriate frequency of review.

Although EPA acknowledges the challenges (e. g., the legal and administrative processes, resource constraints) that states and authorized tribes may experience when conducting triennial reviews, the three

- year timeframe for triennial review comes directly from CWA section 303(c)(1). EPA has no author ity to provide a longer timeframe for triennial reviews.

D. Antidegradation

One of the principle obj ectives of the CWA is to “ maintain the chemical, physical and biological integrity of the Nation’s waters.” 34 Congress expressly affirmed this principle of “antidegradation” in the Water Quality Act of 1987 in CWA sections 101(a) and 303(d)(4)(B). EPA’s WQS regulation has included antidegradation provisions since 1983. In particular, 40
C F R 131.12(a)(2) includes a provision that protects “high quality” waters (i.e., those with water quality that is better than necessary to support the uses specified in section 101(a)(2) of the Act.)

Maintaining high water quality is critical to supporting economic and community growth and sustainability. Protecting high water quality also provides a margin of safety that will afford the water body increased resilience to potential future stressors, in cluding climate change. Degradation of water quality can result in increased public health risks, higher treatment costs that must be borne by ratepayers and local governments, and diminished aquatic communities,

34 See CWA section 101(a) (emphasis added).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 44 of 131 ecological diversity, and ecosystem service s. Conversely, maintaining high water quality can lower drinking water costs, provide revenue for tourism and recreation, support commercial and recreational fisheries, increase property values, create jobs and sustain local communities. 35 While preventing degradation and maintaining a reliable source of clean water involves costs, it can be more effective and efficient than investing in long

- term restoration efforts or remedial actions.

Today’s rule revises the antidegradation regulation to enhance protec tion of high quality waters and to promote consistency in implementation. The new provision s require states and authorized tribes to follow a more structured process when making decisions about preserving high water quality. They also increase transparency and opportunities for public involvement, while preserving states’ and authorized tribes’ decision

- making flexibility. The revisions meet the objectives of EPA’s proposal , although EPA made some changes to the regulatory language after further consideration of the Agency’s policy objectives and in response to public comments. Today’s rule establishes requirements in the following areas: identification of high quality
water s, analysis of alternatives, and antidegradation implementation methods. In addition to the substantive changes described in the following section, today’s rule also includes editorial changes that are not substantive in nature. For a detailed discussion o f EPA’s CWA authority regarding antidegradation, see the preamble to the proposed rule at 78 FR 54526 (Sept ember 4, 2013).

Identification of Waters for High Quality Water ( Tier 2 ) Protection

35 http://water.epa.gov/polwaste/nps/watershed/upload/economic_benefits_factsheet3.pdf ; Economic Benefits of Protecting Health y Watersheds (EPA 841

- N

- 12

- 004, Ap ril 2012).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 45 of 131 What Does Today’s Rule Provide and Why?

Today’s rule at § 131. 12(a)(2)(i) provides that states and authorized tribes may identify waters for Tier 2 protection on either a parameter

- by

- parameter or a water body

- by

- water body basis. The rule also specifies that, where states and authorized tribes identify waters on a w ater body

by

- water body basis, states and authorized tribes must involve the public in any decisions pertaining to when they will provide Tier 2 protection, and the factors considered in such decisions. Further, states and authorized tribes must not exclude water bodies from Tier 2 protection solely because water quality does not exceed levels necessary to support all of the uses specified in CWA section 101(a)(2). Today’s rule requires that states’ and authorize d tribes’ antidegradation policies be c onsistent with these new requirements.

States and authorized tribes typically use one of two approaches to identify high quality waters consistent with the CWA . States and authorized trib es using a parameter

- by

- parameter approach generally identify high q uality waters at the time an entity proposes the activity that would lower water quality. Under this approach, states and authorized tribes identify parameters for which water quality is better than necessary to support the uses specified in CWA section 10 1(a)(2) and provide Tier 2 protection for any such parameters. Alternatively, states and authorized tribes using a water body

- by

- water body approach generally identify waters that will receive Tier 2 protection by weighing a variety of factors , in advance of any proposed activity . S tates and authorized tribes can identify some waters using a parameter

- by

- parameter approach and other waters using a water body

- by

- water body approach

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 46 of 131 The 1983 WQS regulation did not specify which approach states and authorize d tribes must use to identify waters for Tier 2 protection. In the 1998 ANPRM, EPA articulated that either approach, when properly implemented, is consistent with the CWA, and described advantages and disadvantages to both approaches. A parameter

- by

- parame ter approach can be easier to implement, can be less susceptible to challenge, and can result in more waters receiving some degree of Tier 2 protection. The ANPRM also articulated: “[t]he water body

- by

- water body approach, on the other hand, allows for a w eighted assessment of chemical, physical, biological, and other information (e.g., unique ecological or scenic attributes). In this regard, the water body

- by

- water body approach may be better suited to EPA’s stated vision for the [WQS]
program [

... ] . This ap proach also allows for the high quality water decision to be made in advance of the antidegradation review [

... ] , which may facilitate implementation. A water body

by

- water body approach also allows [s] tates and [t] ribes to focus limited resources on protecting higher

- value [s]tate or [t]ribal waters. The water body

- by

- water body approach can [

... ] preserve high quality waters on the basis of physical and biological attributes, rather than high water quality attributes alone.”

Because the original WQS regulation did not provide specific requirements regarding use of the water body

- by

- water body approach, it was possible for states and authorized tribes to identify high quality waters in a manner inconsistent with the CWA and the intent of EPA’s implemen ting regulation. I n some cases, states and authorized tribes have used the water body

by

- water body approach without documenting the factors that inform the decision or informing the public. For example, some s tates or authorized tribes have excluded water s from Tier 2*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 47 of 131 protection entirely based on the fact that the water was included on a CWA section 303(d) list for a single parameter without allowing an opportunity for the public to provide input.

Today’s rule reaffirms EPA’s support for both approaches. The new regulatory requirements included at § 131.12(a)(2)(i) only apply to the water body

- by

- water body approach because they are unnecessary for the parameter

- by

- parameter approach. States and authorized tribes using the parameter

- by

- parameter approach provide Tier 2 protection to all chemical, physical, and biological parameters for which water quality is better than necessary to protect the uses specified in CWA section 101(a)(2). Because the identification of waters that are high quality with respect to relevant parameters would occur in the context of allowing a specific activity, the level of protection is already subject to any public involvement required for that activity. For example, an NPDES permit writer calculating WQBELs would use available data and information about the water body to determine whether assimilative capacity exists for the relevant parameters. The state or authorized tribe would then provide Tier 2 protection for all parameters for which assimilative capacity exists. The draft permit would reflect the results of the Tier 2 review, hence providing an opportunity for public involvement.

The requirement at § 131.12(a)(2)(i) regarding public involvement increases the transparency of and accountability for states ’ and authorized tr ibes ’ water quality management decisions . The final rule is consistent with the CWA and the WQS regulation’s emphasis on the public’s role in water quality protection. A key part of a state’s or authorized tribe’s antidegradation process involves decisions on how to manage high water quality, a shared public resource. Commenters expressed concern that the proposed rule did not require states and authorized tribes to engage*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 48 of 131 the public on decisions when implementing a water body

- by

- water body approach. Conseq uently, the public would not know the factors a state or authorized tribe considered in deciding that the water body did not merit Tier 2 protection, which would limit the public’s ability to provide constructive input during the permit’s public notice and comment period.

To provide for well

- informed public input and to aid states and authorized tribes in making robust decisions, EPA recommends states and authorized tribes document their evaluation of the Tier 2 decision, including the factors considered a nd how those factors were weighed. The case of Ohio Valley Envtl. Coalition v. Horinko demonstrates why it is important for states and authorized tribes to articulate the rationale for their decisions. 36 In this case, the U.S. District Court for the Southern District of West Virginia c onsidered whether the record contained sufficient evidence to justify EPA’s approval of the state’s exclusion of particular water bodies from Tier 2 protection. The state had classified some CWA section 303(d) listed waters as waters to receive Tier 2 protection, while it had excluded other similar waters with similar impairments from Tier 2 protection. The C ourt found the administrative record insufficient to support EPA’s decision to approve the state’s classification because the state’s CWA section 303(d) listing was the only evidence related to the water quality of those river segments. The Court did not opine on whether, in a different factual situation, categorically excluding waters from Tier 2 protection based on CWA section 303(d) impairments would be consistent with the CWA.

To minimize the administrative processes associated with today’s rule, EPA uses the phrase “opportunity for public involvement” rather than “public participation.” “Public participation” at

36 Ohio Valley Envtl. Coal. v. Horinko , 279 F. Supp. 2 d 732, 746

- 50 (S. D. W. Va. 2003).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 49 of 131 40 CFR 131.20(b) 37 refers to a state or authorized tribe holding a public hearing for the purpose of reviewing WQS. With this rule, EPA provides states and authorized tribes the flexibility to engage the public in a way that suits the state or authorized tribe and the public. For example, a state or authorized tribe could develop lists of waters that will and will not receive Tier 2 protection along with descriptions of the factors considered in making each of those decisions and post that information on its website. To obtain public input, the state or authorized tribe

co uld share these lists during a triennial review and/or during revision of antidegradation implementation methods. Such an approach has the advantage of streamlining both the decision

making and public involvement processes. As another example, a state coul d use the NPDES process to engage the public at the time it drafts a permit that would allow a lowering of water quality. The state would document the relevant information related to its decision in the permit fact sheet provided to the public and specifically request comment on its Tier 2 protection decision.

States and authorized tribes can provide a dditional avenues for public involvement by providing structured opportunities for the public to initiate antidegradation discussions. For example, a
state or authorized tribe could provide a petition process in which citizens request Tier 2 protection for specific waters, and those citizens could provide data and information for a state’s

or authorized tribe’s consideration. Also, states and authorize d tribes can establish a process to facilitate public involvement in identifying waters as Outstanding National Resource Waters (ONRWs).

37 See section II.G for more information on the final rule change related to public participation

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 50 of 131 An additional requirement at § 131.12(a)(2)(i) provides that states and authorized tribes must not exclude a water bod y from the protections in § 131.12 (a)(2) solely because water quality does not exceed levels necessary to support all of the uses specified in CWA section 101(a)(2). For a discussion on why such an approach is inconsistent with the Act, see the preamble to the proposed rule at 78 FR 54527 (September 4, 2013). Thus, when considering whether to exclude waters from Tier 2 protection, states and authorized tribes must consider the overall quality of the water rather than whether water quality is better than nec essary for individual chemical, physical, and biological parameters to support all the uses specified in CWA section 101(a)(2). The rule provides for a decision

- making process where states and authorized tribes consider water quality and reasons to protect water quality more broadly. This can lead to more robust evaluations of the water body , and potentially more waters receiving Tier 2 protection. To make

a decision to exclude a water body from Tier 2 protection , states and authorized tribes must identify the factors considered which should include fac tors that are rooted in the goals of the CWA, including the chemical, physical, and biological characteristics of a water body

. Where states and authorized tribes wish to consider CWA section 303(d) listed imp airments, it would be important that they also consider all other relevant available data and conduct an overall assessment of a water’s characteristics. It would also be important that states and authorized tribes consider the public value of the water. T his includes the water’s impact on public health and welfare, the existing aquatic and recreational uses, and the value of retaining ecosystem resilience against the effects of future stressors, including climate change. For additional information on this overall assessment, see the preamble to the proposed rule at 78 FR 54527 (Sept ember 4, 2013).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 51 of 131 T his requirement is consistent with the proposed rule. However, to accurately articulate the requirement, and to remain consistent with § 131

. 12(a)(2), the final rule text reflects that for a water to have available assimilative capacity for which to provide Tier 2 protection, the water quality must “exceed” the levels necessary (i.e., be better than necessary) to support the uses specified in CWA section 101(a)(2 ). Commenters stated that some members of the public could misinterpret the phrase “high quality waters” in the proposal to include waters that meet but do
not exceed the water quality necessary to support the uses specified in CWA section 101(a)(2). The f inal rule replaces “high quality waters” with the phrase “waters for the protections described in (a)(2) of this section

. ” The final rule also says waters cannot be excluded from Tier 2 protection solely “because water quality does not exceed levels necess ary to support all of the uses specified in section 101(a)(2) of the Act” instead of “because not all of the uses specified in CWA section 101(a)(2) are attained,” as stated in the proposal.

Where water quality is better than necessary to support all of the uses specified in CWA section 101(a)(2), § 131.12(a)(2) requires states and authorized tribes to provide Tier 2 protection. Where water quality is not better than necessary to support all of the uses specified in CWA section 101(a)(2), the final rule does not require states and authorized tribes to provide Tier 2 protection for the water body. However, in instances where states and authorized tribes lack data and information on the water quality to make individual water body conclusions, EPA recommends that th ey provide all or a subset of their waters with Tier 2 protection , by default

. Do i ng so will increase the probability that these water s will maintain a level of resiliency to future stressors

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 52 of 131 Today’s rule requires states’ and authorized tribes’ antidegradation policies (which are legally binding state and authorized tribal provisions subject to public participation) to be consistent with the new requirements related to identifying waters for Tier 2 protection. Since states and authorized tribes m ust provide for public participation on their antidegradation policies, placing their requirements for identification of high quality waters in their antidegradation policies increases accountability and transparency. The proposed rule articulated that sta tes and authorized tribes must design their implementation methods to achieve the requirements for identifying high quality waters. Commenters questioned whether the proposed requirement for identifying high quality waters was mandatory, since the proposal did not require states and authorized tribes to adopt the requirement into their legally binding policies. Some commenters suggested requiring states and authorized tribes to adopt all implementation methods into binding provisions. While some states and authorized tribes find adoption of their implementation methods to be helpful, others view it as burdensome. EPA determined that while adopting implementation methods increases accountability and transparency, s tates and authorized tribes could still provi de this accountability and transparency for identification of waters for Tier 2 protection without a requirement to adopt implementation methods . Therefore, the final rule requires antidegradation policies to be consistent with the provision at § 131.12(a) (2)(i). States and authorized tribes have the discretion and flexibility to adopt antidegradation provisions that address other aspects of antidegradation that are not specifically addressed in § 131.12(a). Where
a state or authorized tribe choose s to include antidegradation implementation methods in non

binding guidance, the methods must be consistent with the applicable state or authorized tribal antidegradation requirements that EPA has approved. Consistent with §122.44(d)(1)(vii)(a),*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 53 of 131 p ermits mus t derive from and comply with all applicable WQS. Otherwise , EPA could have a basis to object to the permits

.

What Did EPA Consider?

EPA considered not revising § 131.12(a)(2) and continuing to provide no new regulatory requirements for identification of waters for Tier 2 protection. EPA also considered prohibiting the water body

- by

- water body approach. Providing no regulatory requirements would continue to allow states and authorized tribes to implement a water body

- by

- water body approach that is potenti ally inconsistent with the CWA, while prohibiting the water body

- by

- water body approach would limit states’ and authorized tribes’ flexibility to prioritize their waters for Tier 2 protection. EPA rejected these options in favor of a more balanced approach by placing conditions on how states and authorized tribes use their discretion to better ensure protection of high quality waters.

EPA considered finalizing the rule as proposed, without a requirement for public involvement in decisions about whether to provide Tier 2 protection to a water body; however, EPA found that public involvement is critical for increasing accountability and transparency and included the requirement in the final rule. EPA also considered providing for an EPA approval or disapprov al action under CWA section 303(c) of states’ and authorized tribes’ decisions on whether to provide Tier 2 protection to each water. EPA ultimately decided not to include such a requirement because of concern that it would add more administrative and rule making burden for states and authorized tribes than EPA determined was necessary to ensure public involvement.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 54 of 131 EPA considered specifying precisely which waters must receive Tier 2 protection. However, EPA did not include such specificity in the rule becaus e there are multiple ways that states and authorized tribes can make well

- reasoned decisions on Tier 2 protection based on case

- specific facts.

Analysis of Alternatives

What Does Today’s Rule Provide and Why?

The final rule at § 131.12(a)(2)(ii) provides that before allowing a lowering of high water quality, states and authorized tribes must find, after an analysis of al ternatives, that such a lowering is necessary to accommodate important economic or social de velopment in the area in which the waters are located. That analysis must evaluate a range of non

- degrading and less degrading practicable alternatives. For the purposes of this requirement, today’s rule at § 131.3(n) defines “practicable” to mean “technol ogically possible, able to be put into practice, and economically viable.” When an analysis identifies one or more such practicable alternatives, states and authorized tribes may only find that a lowering is necessary if one such alternative is selected fo r implementation. Today’s rule requires that states’ and authorize d tribes’ antidegradation policies must be consistent with these new requirements.

Section 131.12(a)(2)(ii ) requires a structured analysis of alternatives, which will increase transparency and consistency in states’ and authorized tribes’ decisions about high water quality. The new requirement makes the analysis of alternatives an integral part of a state’s or authorized*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 55 of 131 tribe’s finding that degradation of high quality water is “necessary.” Such an analysis provides states and authorized tribes with a basis to make informed and reasoned decisions, assuring that degradation only occurs where truly necessary. Today’s rule refers to “analysis of alternatives” rather than “alternatives analysis” as in the proposal. This makes clear that the analysis required in § 131.12(a)(2)(ii) is distinct from the “alternatives analysis” required in other programs, such as the National Environmental Policy Act and CWA section 404 permitting.

Section 131.12(a)( 2)(ii) is consistent with the proposed rule, but makes clear that states’ and authorized tribes’ findings that a lowering is necessary depends on both an analysis of alternatives and an analysis related to economic or social development. Commenters were

co ncerned that the proposed rule seemed to remove the requirement at § 131.12(a)(2) for states and authorized tribes to consider whether a lowering of water quality will “accommodateimportant economic or social development in the area in which the waters are located.”

Today’s rule preserves states’ and authorized tribes’ discretion to decide the order in which they satisfy these requirements. A state or authorized tribe can choose to first review an analysis of economic or social development. If it finds th at the proposed lowering of water quality would accommodate important economic or social development, it can then require an analysis of alternatives to see if the lowering could be prevented or lessened. If, on the other hand, a state or authorized tribe finds that the proposed lowering of water quality would not accommodate important economic or social development, it could choose to dis allow lowering of water quality and terminate the Tier 2 review without ever requiring an analysis of alternatives. Simi larly, a*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 56 of 131 state or authorized tribe could first choose to require an analysis of alternatives and then examine an analysis of economic or social development. In this case, if a non

- degrading alternative is selected for implementation, the state or authorize d tribe does not need to proceed with an analysis of economic or social development.

Although states and authorized tribes are responsible for making a finding to allow a lowering of water quality based on a reasonable, credible, and adequate analysis of alternatives, states and authorized tribes themselves need not conduct the analysis of alternatives or select the alt ernative to be implemented. Commenters expressed concern that the proposed rule language implied that states and authorized tribes must perform the analysis themselves, when other entities may be best positioned to analyze the alternatives. Today’s rule la nguage allows states and authorized tribes to rely on analyses prepared by third parties (e.g., a permit applicant). This preserves appropriate flexibility for states’ and authorized tribes’ decision

- makers, and can bring additional resources and expertise to the analysis. States and authorized tribes remain ultimately responsible for making findings to allow degradation and for basing their decisions on adequate analyses. If the state or authorized tribe deems an initial analysis of alternatives insufficie nt to support a finding that a lowering of high water quality is “necessary,” it can request additional analyses of alternatives from the permit applicant or other entities

. A state or authorized tribe can also obtain information on common practicable alte rnatives appropriate for a proposed activity from additional existing resources

. 38

38 E.g., EPA’s Municipal Technologies website, which present s technology fact sheets to assist in the evaluation of different technologies for wastewater ( http://water.epa.gov/scitech/wastetech/mtb_index.cfm ).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 57 of 131 The final rule specifies that states and authorized tribes must analyze “practicable alternatives that would prevent or lessen the degradation,” rather than “non

- degrading and minimally degrading practicable alternatives that have the potential to prevent or minimize the degradation,” as proposed. While non

- degrading or minimally degrading alternatives preserve high water quality to a greater extent , in cases where no minima lly

- degrading alternatives exist, a less degrading alternative will still provide a margin of protection for the high quality water. The final rule requires a broader, more complete analysis.

To enhance clarity and provide for consistency in implementati on, today’s rule finalizes a definiti on of the word “practicable.” The definition embodies a common sense notion of practicability

– i.e., an alternative that can actually be implement ed under the circumstances. Because “practicable” appears in other contexts related to water quality, the definition at § 131.3(n) is only applicable for § 131.12(a)(2)(ii). This definition is consistent with the one articulated in the preamble to the propos ed rule, 39 but eliminates redundancy and omits “at the site in question” in response to commenters’ concern that relocation o f a proposed activity may be a less degrading alternative that the state or authorized tribe can consider.

Section 131.12(a)(2)(ii ) provides for preservation of high water quality by requiring a less degrading practicable alternative to be selected for implementation , if available, before states and authorized tribes may find that a lower ing of water quality is necessary . T his requir ement applies

even if the analysis identifie s only one alternative. S tates and authorized tribes must still make a finding that a lowering is necessary if the analysis does not identify any practicable alternatives

39 See 78 F ed. R eg. 54528 (September 4, 2013).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 58 of 131 that lessen degradation. On the other hand, if the analysis results in choosing an alternative that avoids degradation, a state or authorized tribe need not make a finding. Regardless of the number of alternatives identified, the analysis should document a level of detail that reflects the sig nificance and magnitude of the particular circumstances encountered, to provide the public with the necessary information to understand how the state or authorized tribe made its decision.

EPA chose not to require implementation of the least degrading pra cticable alternative to allow states and authorized tribes the flexibility to balance multiple considerations. Some alternatives to lowering water quality can have negative environmental impacts in other media (e.g., air, land). For example, incinerating p ollutants rather than discharging the pollutants to surface waters could adversely impact air quality and energy use, and land application of pollutants could have adverse terrestrial impacts. EPA recommends that states and authorized tribes consider cross

- media impacts and, where possible, seek alternatives that minimize degradation of water quality and also minimize other environmental impacts.

Today’s rule requires states’ and authorized tribes’ antidegradation policies (which are legally binding provi sions subject to public participation) to be consistent with the new requirements relat ed to analysis of alternatives. As with the provision on identification of waters for Tier 2 protection at § 131.12(a)(2)(i) , EPA determined that antidegradation policie s must be consistent with the federal regulation on analysis of alternatives at § 131.12(a)(2)(ii) to increase accountability and transparency.

What Did EPA Consider?*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 59 of 131 EPA considered finalizing the proposed rule without alteration. EP A did not choose thi s option in light of commenters’ suggestions to clarify the language in order to avoid confusion as to who is responsible for conducting the analysis. EPA also rejected an option to forego any revisions related to an analysis of alternatives , as this would not provide clarification regarding what type of analysis support s states’ or authorized tribes’ decisions that a lowering of water quality is “necessary,” thus risking a greater loss of water quality.

Antidegradation Implementation Methods

What Does Today’s Rule Provide and Why?

The rule at § 131.12(b) requires states’ and authorized tribes’ antidegradation implementation methods (whether or not those methods are adopted into rule) to be consistent with their antidegradation policies and with § 131.12(a). Today’s rule also requires states and authorized tribes to provide an opportunity for public involvement during the development and any subsequent revisions of antidegradation implementation methods, and to make the methods available to the publ ic.

Finally, today’s rule adds § 131.5(a)(3) to explicitly specify that EPA has the authority to determine whether the states’ and authorized tribes’ antidegradation policies and any adopted antidegradation implementation methods 40 are consistent with the f ederal antidegradation

40 See http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm

. What is a New or Revised Water Quality Standard Under CWA 303(c)(3) Frequently Asked Questions (EPA

- 820

- F

- 12

- 017, October 2012).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 60 of 131 requirements at § 131.12. This revision does not expand EPA’s existing CWA authority , rather it

ensure s § 131.5 is consistent with §§ 131.6 and 131.12.

The public involvement requirement at § 131.12(b) increases transparency, accountability, and consistency in states’ and authorized tribes’ implementation. EPA proposed a requirement that implementation methods be publicly available. As EPA discussed in the preamble to the proposed rule, CW A section 101( e) provides that “public participation in the development, revision, and enforcement of any regulations, standard, effluent limitation, plan, or program established [

... ] under this Act shall be provided for, encouraged, and assisted [

... ] .” Thus, today’s rule also provides for public involvement during development or revision of implementation methods. A state or authorized tribe may decide to offer more than one opportunity to most effectively engage the public. States and authorized tribes can use various

me chanisms to provide such opportunities, including a public hearing, a public meeting, a public workshop, and different ways of engaging the public via the Internet, such as webinars and website postings. If a state or au thorized tribe adopts antidegradatio n implementation methods as part of its WQS or other legally binding provisions, the state’s or authorized tribe’s own public participation requirements and 40 CFR Part 25 and § 131.20(b) of the f ederal regulation, will satisfy this requirement.

Section 1 31.5(a)(3) makes explicit EPA’s authority to review states’ and authorized tribes’ antidegradation policies and any adopted antidegradation implementation methods and to determine whether those policies and methods are consistent with § 131.12

. EPA recomme nds states and authorized tribes adopt binding implementation methods to provide more transparency*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 61 of 131 and consistency for the public and other stakeholders and to increase accountability. States and authorized tribes may find that the Continuing Planning Proc ess provisions described at CWA section 303( e) and § 130.5 can facilitate the state’s or authorized tribe’s establishment and maintenance of a process for WQS implementation consistent with the requirements of today’s final rule.

Here, EPA clarifies the terms “antidegradation policy” and “antidegradation implementation methods.” For the purposes of § 131.12, states’ and authorized tribes’ “antidegradation policies” must be adopted in rule or other legally binding form, and must be consis tent with the requirements of § 131.12(a). EPA originally promulgated this requirement in 1983. “Antidegradation implementation methods” refer to any additional documents and/or provisions in which a state or authorized tribe describes methods for implemen ting its antidegradation policy, whether or not the state or authorized tribe formally adopts the methods in regulation rule or other legally binding form

. If a state or authorized tribe does not choose to adopt the entirety of its implementation methods, EPA recommends, at a minimum, adopting in regulation or other legally binding form any antidegradation program elements that substantively express the desired instream level of protection and how that level of protection will be expressed or established fo r such waters in the future.

What Did EPA Consider?

EPA considered not adding § 131.5(a)(3). EPA rejected this option in light of commenters’ suggestions to clarify the extent of EPA’s authority. EPA also considered not adding § 131.12(b)*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 62 of 131 or establishing § 131.12(b), as proposed. However, public involvement in the development and implementation of states’ and authorized tribes’ antidegradation implementation methods is fundamental to meeting the CWA requirements to restore and maintain water q uality. EPA considered revising the rule to require that all states and authorized tribes adopt the entirety of their antidegradation implementation methods in regulation to improve accountability and transparency, as some commenters suggested. EPA did not make this change because it would limit states’ and authorized tribes’ ability to easily revise their implementation methods in order to adapt and improve antidegradation protection in a timely manner. S ome states and authorized tribes have difficulty ado pting their methods because of resource constraints, state or tribal laws,

or complex rulemaking processes. Instead of requiring adoption of implementation methods, today’s rule achieves more accountability by establishing specific requirements for states’ and authorized tribes’ antidegradation policies regarding two key aspects of Tier 2 implementation.

What Is EPA’s Position on Certain Public Comments?

Commenters requested clarification concerning whether states and authorized tribes must change their a pproaches to antidegradation to be consistent with the final rule. Where a state or authorized tribe already has established antidegradation requirements consistent with today’s rule, EPA does not anticipate the need for further changes.

Many commenters r equested clarification concerning whether the proposed rule affects states’ and authorized tribes’ ability to use de minimis exclusions. Some states and authorized tribes use de minimis exclusions to prioritize and manage limited resources by excluding activities from*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 63 of 131 Tier 2 review if they view the activity as potentially causing an insignificant low ering of water quality. This allows s tates and authorized t ribes to use their limited resources where it can have the greatest environmental impact . Although EPA did not propose any revisions related to defining or authorizing de minimis exclusions, some commenters requested that EPA finalize a rule that explicitly accepts them , and others asked EPA to prohibit them . Section 131.12

- including the re visions in t oday’s rule

- does not address de minimis exclusions. States and authorized tribes can use de minimis exclusions, as long as they use them in a manner consistent with the CWA and § 131.12

.

The D.C. Circuit explained in Ala

. Power v. C o stle that under the de minimis doctrine, “[c]ategorical exemptions may also be permissible as an exercise of agency power, inherent in most statutory schemes, to overlook circumstances that in context may fairly be considered de minimis .” 41 The Court went on to explain that the authority to create a de minimis provision “is not an ability to depart from the statute, but rather a tool to be used in implementing the legislative design.” 42 The Sixth Circuit has also explained that de minimis provisions are created th rough an “administrative law principle which allows an agency to create unwritten exceptions to a statute or rule for insignificant or ‘ de minimis ’ matters.” 43

S tates and authorized t ribes have historically defined “ significant degradation ” in a variety o f
ways. Significance tests range from simple to complex, involve qualitative or quantitative measures or both , and may vary depending upon the type of pollution or pollutant (e.g., the

41 Ala. Power. v. Costle , 636 F.2d. 323, 360 (D.C. Cir. 1979). 42 I d

. 43 Ky. Waterways Alliance v. Johnson , 540 F.3d 466, 483 ( 6th Cir. 2008)

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 64 of 131 approach may be different for highly toxic or bioaccumulative pollutant s). EPA does not endorse one specific approach to identifying what constitutes insignificant degradation, though EPA does recognize that one potential way a state or authorized tribe could describe its de minimis methodology would be to identify a “ signifi cance threshold ” as percentage of assimilative capacity loss for a parameter or lowering of water quality that would be considered

“ insignificant. ” EPA has not found a scientific basis to identify a specific percentage of loss of assimilative capacity or lowering of water quality that could reasonably be considered insignificant for all parameters, in all waters, at all times , for all activities . Depending on the water body’s chemical, physical, and biological characteristics and the circumstances of th e lowering of water quality, even very small changes in water quality could cause significant effects to the water body.

Courts have explained that the implied de minimis provision authority is “ ‘ narrow in reach and tightly bounded by the need to show that the situation is genuinely de minimis or one of administrative necessity. ’ ” 44 Accordingly, this authority only applies “ ‘ when the burdens of regulation yield a gain of trivial or no value. ’ ” 45 Fina lly, a “ ‘ determination of when matters are truly de minimis naturally will turn on the assessment of particular circumstances, and the agency will bear the burden of making the required showing. ’ ” 46

Unless a state or authorized tribe can provide appropria te technical justification, it should not create categorical exemptions from Tier 2 review for specific types of activities based on a

44 Id. (quoting Ala. Power. v. Costle , 636 F.2d. 323, 361 (D.C. Cir. 1979)). 45 Id. (quoting Greenbaum v U.S.Envtl P r ot. Agency , 370 F.3d 527, 534 (6 th Cir. 2004)). 46 Id. (quoting Greenbaum v U.S.Envtl P r ot. Agency , 370 F.3d 527, 534 (6 th Cir. 2004)).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 65 of 131 general finding that such activities do not result in significant degradation

. States and authorized tribes should also c onsider the appropriateness of exemptions depending on the types of chemical, physical, and biological parameters that would be affected. For example, if a potential lowering of water quality contains bioaccumulative chemicals of concern, a state or author ized tribe should not apply a categorical de minimis exclusion because even extremely small additions of such chemicals could have a significant effect. For such pollutants, it could be possible to apply a de minimis exclusion on a case by case basis, but the state or authorized tribe should carefully consider any such proposed lowering prior to determining that it would be insignificant. States and authorized tribes should also consider the potential effects of cumulative impacts on the same water body to ensure that the cumulative degradation from multiple activities each considered to have a de minimis impact will not cumulatively add up to a significant impact. Finally, if a state or authorized tribe intends to use de minimis exclusions , then EPA recommends that it describe how it will use de minimis in its antidegradation implementation methods . This guarantees that states and authorized tribes will inform the public ahead of time about how they will use de minimis exemptions.

EPA also encourages states and authorized tribes to consider other ways to help focus limited resources where they may result in the greatest environmental protection. A state or authorized tribe should consider whether it will require more effort and resources to justify a de minimis exemption than it would take to actually complete a Tier 2 review for the activity. EPA encourages states and authorized tribes to develop ways to streamline Tier 2 reviews, rather than seeking to exempt activities from review entirely.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 66 of 131 E. WQS Variances

What Does Today’s Rule Provide and Why?

Today’s rule establishes an explicit regulatory framework for the adoption of WQS variances that states and authorized tribes can use to implement adaptive management approaches to improve water quality. S tates and authorized tribes can face substantial uncertainty as to what designated use may ultimately be attainable in their waters. Pollutant s that impact such waters

can result from large

- scale land use changes, extreme weather events, or environmental stressors related to climate change that can hinder restoration and maintenance of water quality. In addition, pollutants can be persistent in the environment and , in some cases, lack economically feasible control options. WQS variances are customized WQS that identify the the highest attainable condition applicable throughout the WQS variance term

. For a discussion of why it is important for sta tes and authorized tribes to include the highest attainable condition, see the preamble to the proposed rule at 78 FR 54534 (September 4, 2013). S tates and authorized tribes

c ould use one or more WQS variances to require incremental improvements in water q uality leading to eventual attainment of the ultimate designated use

.

While EPA has long recognized WQS variances as an available tool , today’s rule provides regulatory certainty to states and authorized tribes, the regulated community, and the public that variances are a legal WQS tool . The final rule explicitly authorizes the use of WQS variances and provides requirements to ensure that WQS variances are used appropriately

. Such a mechanism allows states and authorized tribes to work with stakeholders and assure the public*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 67 of 131 that WQS variances facilitate progress toward attaining designated uses. When all parties are engaged in a transparent process that is guided by an accountable framework, states and authorized tribes can move past traditional barrier s and begin efforts to maintain and restore
waters. As discussed in the preamble to the proposed rule at 78 FR 54531 (September 4, 2013) , a number of states have not pursued variances

. For WQS variances submitted to EPA between 2004 and 2015, 75% came from states covered by the “Water Quality Guidance for the Great Lakes System” rulemaking at 40 CFR Part 132. EPA attributes the Region 5 states’ success in adopting and submitting WQS variances to the fact that the states and their stakeholders have had more specificity in regulation regarding WQS variances than the rest of the country. This final rule is intended to provide the same level of specificity nationally.

EPA’s authority to establish requirements for WQS variances comes from CWA sections 101 (a)

an d 303(c)(2). Today’s rule reflects this authority by explicitly recognizing that states and authorized tribes may adopt time

- limited WQS with a designated use and criterion reflecting the highest attainable condition applicable throughout the term of the W QS variance, instead of pursing a permanent 47 revision of the designated use and associated criteria

. WQS variances serve the national goal in section 101(a)(2) of the Act and the ultimate objective of the CWA to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters because WQS variances are narrow in scope and duration and are designed to make progress toward water quality goals

. W hen a WQS variance is in place, all other applicable standards not

47 “Permanent” is used here to contrast between the time

- limited nature of WQS varian ces and designated use changes. In accordance with 40 CFR 131.20, waters that “do not include the uses specified in section 101(a)(2) of the Act shall be re

- examined every 3 years to determine if new information has become available. If such new informatio n indicates that the uses specified in section 101(a)(2) of the Act are attainable, the [s]tate shall revise its standards accordingly.”*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 68 of 131 addressed in the WQS variance continue to apply , in addition to the ultimate water quality objectives (i.e., the underlying WQS) . Also, by requiring the highest attainable condition to be identified and applicable throughout the te rm of the WQS variance, today’s rule provides a mechanism to make incremental progress toward the ultimate water quality objective for the
water body and toward the restoration and maintenance of the chemical, physical, and biological integrity of the N ati on’s waters.

Today’s rule adds a new regulatory section at § 131.14 that explicitly authorizes the use of WQS variances when the applicable designated uses are not attainable in the near

- term but may be attainable in the future. The rule clarifies how WQS variances relate to other CWA programs and specifies the information that the state and authorized tribe must adopt in any WQS variance, including the highest attainable condition. States and authorized tribes must submit to EPA supporting documentatio n that demonstrates why the WQS variance is needed and justifies the
term and interim requirements. Finally, the rule requires states and authorized tribes to reevaluate WQS variances longer than five years on an established schedule with public involvemen t. The changes from the proposed rule respond to public comments and remain consistent with the Agency’s clearly articulated policy objectives in the proposed rule

. T oday’s rule also includes editorial changes that are not substantive in nature.

First, to provide clarity, today’s rule includes a new section at § 131.14 to explicitly authorize states and authorized tribes to adopt WQS variances. States and authorized tribes may adopt WQS variances for a single discharger, multiple dischargers , or a water bo dy or waterbody segment , but it only applies to the permi t tee(s) or water body/waterbody segment ( s ) specified in*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 69 of 131 the WQS variance

. The rule defines a WQS variance at § 131.3(o) as a time

- limited designated use and criterion for a specified pollutant(s), pe rmittee(s), and/or water body or waterbody segment(s) that reflects the highest attainable condition applicable throughout the specified time period. The rule further specifies that a WQS variance is a new or revised WQS subject to EPA review and approval or disapproval , 48 requires a public process, and must be reviewed on a triennial basis. All other applicable standards not specifically addressed by the WQS variance remain applicable. T oday’s rule add s § 131.5(a)(4 ) to explicitly specify that EPA has the authority to determine whether any WQS variances adopted by a state or authorized tribe are consistent with the requirements at § 131.14

. A WQS variance shall not be adopted if the designated use and criterion can be achieved by im plementing technology

- based effluent limits required under sections 301(b) and 306 of the Act.

To make incremental water quality improvements , it is important that states’ and authorized tribes’ WQS continue to reflect the ultimate water quality goal. T oday’s rule, therefore, requires states and authorized tribes to retain the underlying designated use and criterion in their standards to apply to all other permittees not addressed in the WQS variance , and for identifying threatened and impaired waters un der CWA section 303(d) , and for establishing a Total Maximum Daily Load (TMDL). 49 For further clarity, today’s rule also specifies that once EPA
approves a WQS variance , including the highest attainable condition, it applies for purposes of developing NPDES permit limits and requirements under 301(b)(1)(C) . WQS variances can also

48 For this reason, s tates and authorized tribes are not required to adopt specific authorizing provisions into state o r authorized tribal law before using WQS varian ces consistent with the federal regulation. 49 See 78 F ed. R eg. 54533 (September 4, 2013).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 70 of 131 be used by states, authorized tribes, and other certifying entities when issuing certifications under CWA section 401. If EPA disapproves a WQS variance, the state or authorize d tribe will have an opportunity to revise and re

- submit the WQS variance for approval. Until EPA approves the re submitted WQS variance, the underlying designated use and criteria remain applicable for all CWA purposes. Today’s rule rei nforces the require ments at § 122.44(d)(1)(vii)(A) by specifying that any limitations and requirements necessary to implement the WQS variance must be included as enforceable conditions of the implementing NPDES permit

.

Second, to provide public transparency, today’s rule requires states and authorized tribes to include specific information in the WQS variance. States and authorized tribes must specify the pollutant(s) or water quality parameter(s) and the water body/waterbody segment(s) to which the WQS variance applies. A state or authorized tribe must also identify the discharger(s) subject to a discharger

- specific WQS variance

. As an alternative to identifying the specific dischargers at the time of adoption of a WQS variance for multiple dischargers, states and authoriz ed tribes
may adopt specific eligibility requirements in the WQS variance. This will make clear what characteristics a discharger must have in order to be subject to the WQS variance for multiple dischargers . It is EPA’s expectation that states and authori zed tribes that choose to identify the dischargers in this manner will subsequently make a list of the facilit ies covered by the WQS variance publicly available (e.g., posted on the state or authorized tribal website). It may be appropriate for a state or authorized tribe to adopt one WQS variance that applies to multiple dischargers experiencing the same challenges in meeting their WQBELs for the same pollutant*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 71 of 131 so long as the WQS variance is consistent with the CWA and § 131.14. 50 A multiple discharger WQS variance may not be appropriate or practical for all situations and can be highly dependent on the applicable pollutant s, parameters , and/or permittees.

States and authorized tribes must also specify the term of any WQS variance to ensure that WQS varia nces are time

- limited. S tates and authorized tribes have the flexibility to express the WQS variance term as a specific date (e.g., expires on December 31, 2024) or as an interval of time after EPA

- approval (e.g., expires 10 years after EPA approval), as l ong as it is only as long as necessary to achieve the highest attainable condition

. If, at the end of the variance, the underlyi ng designated use remains unattainable , the state or authorized tribe may adopt a subsequent WQS variance(s) , consistent with th e requirements of § 131.14

.

To ensure that states and authorized tribes use WQS variances that continue to make water quality progress, the rule does not allow a WQS variance to lower currently attained ambient water quality, except in circumstances wher e a WQS variance will allow short

- term lowering necessary for restoration activities consistent with § 131.14(b)(2)(i)(A)( 2 ). Moreover, states and authorized tribes must specify in the WQS variance itself the interim requirements reflecting the highest att ainable condition. Where a permittee cannot immediately meet the WQBEL derived from the terms of a WQS variance, the permitting authority can decide whether to provide a permit compliance schedule (where authorized) so the permittee can remain in complianc e with

50 EPA has developed a list of Frequently Asked Questions addressing when a multiple discharger WQS variance may be appropriate and how a state or authorized tribe can develop a credible rationale for this type of WQS variance. Discharger

- specific Variances on a Broader Scale: Developing Credible Rationales for Variances that Apply to Multiple Dischargers , EPA

- 820

- F

- 13

- 012, March 2013.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 72 of 131 its NPDES permit. 51 (See CWA section [502(17)] for a definition of “Schedules of compliance” and 40 CFR 122.47). 52 Any such compliance schedule must include a final effluent limit based on the applicable highest attainable condition and must require compliance with the permit’s WQBEL “as soon as possible

. ” I f the compliance schedule exceeds one year, the permitting authority must include interim requirem ents and the dates for their achievement. For example , if the underlying criterion requires an NPDE S WQBEL of 1 mg/L for pollutant X, b ut the permittee’s current effluent quality is at 10 mg/ L , the state or authorized tribe could adopt the highest attainable condition of 3 mg/L to be achieved at the end of 15 years and obtain EPA approval if they have m et the requirements of § 131.14

. Once approved by EPA, t he highest attainable condition of 3 mg/L is the applicable criterion for purposes of deriving the NPDES WQBEL and developing the NPDES permit limits and requirements for the facility covered by the W QS variance. For this example, assume the permitting authority is developing the NPDES permit without allowing dilution (i.e., applying the criterion end of pipe). In this case, the facility will need 15 years to implement the activities necessary to meet the limit based on the 3 mg/L.
T he permitting authority could include a 15 year compliance schedule with a final effluent limit based on 3 mg/L and an enforceable sequence of actions that the permitting authority determines are necessary to achieve th e final effluent limit. As discussed later in this section, the documentation that a state or authorized tribe provides to EPA justifying the term of the WQS variance inform s the permitting authority when determining the enforceable sequence of actions.

To day’s rule requires states and authorized tribes to provide a quantifiable express ion of the highest attainable condition. This requirement is an important feature of a WQS variance that

51 As an alternative to a permit compliance schedule, there may be other available mechanisms such as an administrative order. 52 78 F ed. R eg. 54532 (September 4, 2013).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 73 of 131 facilitates development of NPDES permit limits and requirements and a llows states, authorized tribes, and the public to track progress. Today’s rule provides states and authorized tribes the flexibility to express the highest attainable condition as numeric pollutant concentrations in ambient water, numeric effluen t conditi ons, or other quantitative expressions of pollutant reduction , such as the maximum number of combined sewer overflows that is achievable after implementation of a long

- term control plan or a percent reduction in pollutant loads

. Today’s final rule at § 13 1.14(b)(1)(ii) provides states and authorized tribes with different options to specify the highest attainable condition depending on whether the WQS variance applies to a specific discharger(s) or to a water body or waterbody segment. For a discharger(s)

-

s pecific WQS variance, the rule allows states and authorized tribes to express the highest attainable condition as an interim criterion without specifying the designated use it supports. EPA received comments suggesting that identifying both an interim use and interim criterion for a WQS variance is unnecessary. EPA agrees that the level of protection afforded by meeting the highest attainable criterion in the immediate area of the discharge(s) results in the highest attainable interim use at that location. Therefore, the highest attainable interim criterion is a reasonable surrogate for the highest attainable interim use and interim criterion when the WQS variance applies to a specific discharger(s). For similar reasons, as explained in the preamble to the p roposed rule, states and authorized tribes may choose to articulate the highest attainable condition as the highest attainable interim effluent condition. 53 Neither of these options, however, is appropriate for a WQS variance applicable to a water body or waterbody segment. Such a WQS variance impacts the water body or waterbody segment in a manner that is similar to a change in a designated use and , therefore , must explicitly articulate the highe st attainable

53 78 F ed. R eg. 54534 (September 4, 2013).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 74 of 131 condition as the highest attainable interim designated use and interim criterio n. A state’s or authorized tribe’s assessment of the highest attainable interim designated use and interim criterion for this type of WQS variance necessarily invo lves an evaluation of all pollutant

sources.

Where the state or authorized tribe cannot identify a n additional feasible pollutant control technology, today’s rule provides options for articulating the highest attainable condition using the greatest pollut ant reduction achievable with optimization of currently installed pollutant control technologies and adopt ion and implementation of a Pollutant Minimization Program (PMP). The rule makes this option available for a WQS variance that applies to a specific d ischarger(s) as well as a WQS variance applicable to a water body or waterbody segment. EPA defines PMP at § 131.3(p) as follows: “ Pollutant Minimization Program , in the context of § 131.14, is a structured set of activities to improve processes and pollut ant controls that will prevent and reduce pollutant loadings

... ” Pollutant control technologies represent a broad set of pollutant reduction options, such as process or raw materials changes and pollution prevention technologies , practices that reduce pollut ants prior to entering the wastewater treatment system , or best management practices for restoration and mitigation of the water body . This option requires states and authorized tribes to adopt the PMP along wit h other elements that comprise the highest at tainable condition. As part of the applicable WQS, the permitting authority must use the PMP (along with the quantifiable expression of the “ greatest pollutant reduction achievable”) to derive N PDES permit limits and requirements

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 75 of 131 As discussed later in t his section, states and authorized tribes must reevaluate WQS variances on a regular and predictable schedule. T o ensure that a WQS variance reflects the highest attainable condition throughout the WQS variance term, states and authorized tribes must adopt a provision specifying that the applicable interim WQS shall be either the highest attainable condition initially adopted, or a higher attainable condition later identified during any reevaluation. The rule requires such a provision only for WQS variances longer than five years. This provision must be self

- implementing so that if any reevaluation yields a more stringent attainable condition, that condition becomes the applicable interim WQS without additi onal action. Upon permit reissuance, the permitting authority will base the WQBEL on the more stringent interim WQS consistent with the NPDES permit regulation at § 122.44(d)(vii)(A). Where the reevaluation identifies a condition less stringent than the highest attainable condition, the state or authorized tribe must revise the WQS variance consistent with CWA requirements and obtain EPA approval of the WQS variance before the permitting authority can derive a WQBEL based on that newly identified highest attainable cond ition

.

Third, to ensure EPA has suffic ient information to determine whether the WQS variance is consistent with EPA’s WQS regulation, states and authorized tribes must provide documentation to justify why the WQS variance is need ed, the term for the WQS variance , and the highest attainable con dition. For a WQS variance to a designated use specified in CWA section 101(a)(2) and subcategories of such uses, states and authorized tribes must demonstrate that the use and criterion are not feasible to attain on the basis of one of the factors listed in § 131.10(g) or on the basis of the new restoration

- related factor in § 131.14(b)(2)(i)(A)( 2 ). EPA added this new factor for when states and authorized tribes wish to obtain a WQS variance because they*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 76 of 131 expect a time

- limited exceedance of a criterion when removing a dam or during significant wetlands, lake, or stream reconfiguration/restoration efforts. EPA include s “lake” in the regulatory language for this factor, on the basis of public comments suggesting that the rule also apply to lake restoration act ivities. States and authorized tribes may only use this factor to justify the time necessary to remove the dam or the length of time in which wetland, lake, or stream restoration activities are actively on

- going. Although such a WQS variance might not dire ctly impact an NPDES permittee or the holder of a federal license or permit , states and authorized tribes could rely on the WQS variance when deciding whether to issue a CWA section 401 certification in connection with an application for a federal license or permit. The central feature of CWA section 401 is the state or authorized tribe’s ability to grant, grant with conditions, deny or waive certification for federally licensed or permitted activities that may discharge into navigable waters . Many states and authorized tribes rely on 401 certification to ensure that federal projects do not cause adverse water quality impacts. By adopting a WQS variance, the state or authorized tribe lays the groundwork for issuing a certification (possibly wi th conditions, as per CWA 401(d)) that allow s a federal license or permit to be issued. Without a WQS variance, the state or authorized tribe’s only options might be to deny certification which prevents issuance of the federal license or permit , or waive c ertification and allow the license or permit to be issued without conditions

. If a state or authorized tribe issues a CWA certification based on a WQS variance, EPA recommends that the state or tribe consider whether to include the applicable interim requi rements from the WQS variance as conditions of its certification.

For WQS variances to non

- 101(a)(2) uses, today’s rule specifies that states and authorized tribes must document and submit a use and value demonstration consistent with § 131.10(a) (see*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 77 of 131 sec tion II.B for additional discussion on use and value demonstration s ). EPA’s proposed rule would have required that a “ [s] tate must submit a demonstration justifying the need for a WQS variance” and the preamble to the proposed rule noted that the demonstra tions for uses specified
in CWA section 101(a)(2) and non

- 101(a)(2) may differ. EPA received comments questioning the requirements for WQS variances to non

- 101(a)(2) uses and today’s rule explicitly makes clear that the documentation requirement for removi ng or adopting new or revised designated uses in §§ 131.10(a) and 131.6 also applies to non - 101(a)(2) WQS variances. States and authorized tribes may also use the factors at § 131.14(b)(2)(i)(A) to justify how their consideration of the use and value appro priately supports the WQS variance.

States and authorized tribes must justify the term of any WQS variance on the basis of the information and factors evaluated to justify the need for the WQS variance. States and authorized tribes must also describe the pollutant control activities, including those identified through a PMP, that the state or authorized tribe anticip ates implementing throughout the WQS variance term to achieve the highest attainable condition. During its review of the WQS variance, EPA will evaluate t his description of activities which must reflect only the time needed to plan activities, implement activities, or evaluate the outcome of activities. Explicitly requiring the state or authorized tribe to document the relationship between th e pollutant control activities and the WQS variance term ensures that the term is only as long as necessary to achieve the highest attainable condition and that water quality progress is a chieved throughout the entire WQS variance term. The pollutant contr ol activities specified in the supporting documentation serve as milestones for the WQS variance and inform the permitting authority when developing the*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 78 of 131 enforceable terms and conditions of the NPDES permit necessary to implement the variance, as required a t 40 CFR 122.44(d)(1)

.

The degree of cer tainty associated with pollutant control activities and pollutant reductions will inform EPA’s review and evaluation of whether the state’s or authorized tribe’s submission sufficiently justifies the need and the t erm of WQS variances

. There can be instances where a state or authorized tribe has information to determine that the underlying designated use and criterion cannot be attained for a particular period of time , but does not have sufficient information to ide ntify the highest attainable condition that would be achieved in that same period of time. In such cases, EPA anticipates that a state or authorized tribe will adopt a shorter WQS variance reflecting the highest attainable condition that is supported by th e available information, including the pollutant control activities identified in the WQS submission

. States and authorized tribes could then determine the appropriate mechanism to continue making progress towards the underlying designated use and criterio n, which may include adoption of subsequent WQS variances as more data are gathered and additional pollutant control activities are identified

.

Today’s rule also includes two additional requirements to ensure states and authorized tribes use all relevant information to establish a WQS variance for a water body or waterbody segment. States and authorized tribes must identify and document cost

- effec tive and reasonable BMPs for nonpoint sources, and provide for public notice and comment on that documentation. States and authorized tribes must also document whether and to what extent BMPs were implemented and the water quality progress achieved during the WQS variance term to justify a subsequent WQS*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 79 of 131 variance. N onpoint sources can have a significant bearing on whether the designated use and associated criteri a for the water body are attainable. It is essential for states and authorized tribes to conside r how controlling these sources through application of cost

- effective and reasonable BMPs could impact water quality before adopting such a WQS variance. Doing so informs the highest attainable condition , the duration of the WQS variance term, and the stat e’s or authorized tribe’s assessment of the interim actions that may be needed to make water quality progress.

Fourth, to ensure that states and authorized tribes thoroughly reevaluate each WQS variance with a term longer than five years, today’s rule req uires states and authorized tribes to specify, in the WQS variance, the reevaluation frequency and how they plan to obtain public input on the reevaluation. Additionally, they must submit the results of the reevaluation to EPA within 30 days of completion. States and authorized tribes may specify the frequency of reevaluations to coincide with other state and authorized tribal processes (e.g. , WQS triennial reviews or NPDES permit reissuance), as long as reevaluations occur at least every five years. Althou gh EPA does not review and approve or disapprove the results of a WQS variance reevaluation, the results

c ould inform whether the Administrator exercises his or her discretion to determine that new or revised WQS are necessary . The rule also requires state s and authorized tribes to adopt a provision specifying that the WQS variance will no longer be the applicable WQS for CWA purposes if they do not conduct the required reevaluation or do not submit the results of the reevaluation within 30 days of completi on. If a state or authorized tribe does not reevaluate the WQS variance or does not submit the results to EPA within 30 days, the underlying designated use and criteri on become the applicable WQS for the permittee(s) or water body specified in the WQS vari ance without EPA, states or authorized tribes taking an additional WQS action. In such*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 80 of 131 cases, s ubsequent NPDES WQBELs for the associated permit must be based on the underlying designated use and criterion rather than the highest attainable condition , even if the originally specified variance term has not expired. As discussed earlier in this section, states and authorized tribes must also adopt a provision that ensures the WQS variance reflects the highest attainable condition initially adopted or any more stringent highest attainable condition identified during a reevaluation that is applicable throughout the WQS variance term

.

EPA proposed a maximum allowable WQS variance term of 10 years to ensure that states and authorized tribes reevaluate long

- term WQS challenges at least every 10 years before deciding whether to continue with a WQS variance. EPA explained in the preamble to the proposed rule that the purpose of this maximum WQS variance term was as follows: “Establishing an expiration date will ensure that the conditions of a [WQS] variance will be thoroughly reevaluated and subject to a public review on a regular and predictable basis to determine (1) whether conditions have changed such that the designated use and criterion are now attainable; (2) whether new or additional information has become available to indicate that the designated use and criterion are not attainable in the future (i.e., data or information supports a use change/refinement); or (3) whether feasible progress is being made toward the designated use and criterion and that additional time is needed to make further progress (i.e., whether a [WQS] variance may be renewed).” 54

Some comment er s suggested that 10 years is too long and does not provide adequate assurance that the sta te or authorized tribe will periodically reevaluate a WQS variance in a publicly

54 78 F ed. R eg. 54536 (September 4, 2013).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 81 of 131 transparent manner. Other comment ers suggested that 10 years is too short because states often adopt WQS variances through conventional rulemaking processes and that such a ma ximum term would result in unnecessary rulemaking burden where it is widely understood that long

- term pollution challenges require more time to resolve. A 10

- year maximum could also discourage the use of WQS variances

.

In response, EPA concludes that esta blishing specific reevaluation requirements for WQS variances longer than five years is the best way to achieve EPA’s policy objective of active , thorough , and transparent reevaluat ion by states and authorized tribes while minimizing rulemaking burden. The reevaluation requirements in today’s rule eliminate the need to specify a maximum WQS variance term because they ensure the highest attainable condition is always the applicable WQS throughout the WQS variance term , thus driving incremental improvements
t oward the underlying designated use. These requirements also ensure the public has an opportunity to provide input throughout the WQS variance term. EPA chose five years as the maximum interval between reevaluations because five years is the length of a single NPDES permit cycle , allowing the reevaluation to inform the permit reissuance process. A lthough today’s rule does not specify a maximum WQS variance term, states and authorized tribes must still identify the WQS variance term and provide documenta tion demonstrating that the term is only as long as necessary to achieve the highest attainable condition. EPA will use this information to determine whether to approve or disapprove the WQS variance submitted for review , based on the requirements in § 131 .14

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 82 of 131 WQS variances remain subject to the triennial review and public participation requirements specified in § 131.20. Today’s requirements ensure that the public has the opportunity to work with states and authorized tribes in a predictable and timely m anner to search for new or updated data and information specific to the WQS variance that could indicate a more stringent highest attainable condition exists than the state or authorized tribe originally adopted. “ New or updated data and information ” inclu des, but is not limited to, new information on pollutant control technologies, changes in pollutant sources, flow or water levels, economic conditions, and BMPs that impact the highest attainable condition. Where there is an EPA

- approved WQS variance, the permitting authority must refer to the reevaluation results when reissuing NPDES permits to ensure the permit implements any more stringent applicable WQS that the re evaluation provides. States and authorized tribes can facilitat e this coordination by publ ishing and making accessible the results of reevaluations.

While today’s rule only requires reevaluations of WQS variances with a term longer than five
years, states and authorized tribes must re view all WQS variances during the ir triennial review.
If a state or authorized tribe synchronizes a WQS variance reevaluation with permit reissuance, the reevaluation must occur on schedule even if there is a delay in the permit re issuance.

EPA previously promulgated specific variance procedures when EPA esta blished federal WQS for Kansas (§ 131.34(c) ) and Puerto Rico (§ 131.40(c))

. To provide national consistency, today’s rule authorizes the Regional Administrator to grant WQS variances in Kansas and Puerto Rico in accordance with the provisions of § 131.14.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 83 of 131 What Did EPA Consider?

In addition to considering the option EPA proposed, EPA considered options that provide a maximum WQS variance term more than or less than 10 years. EPA rejected these options because retaining a maximum term of any duration does not accomplish EPA’s goal of a balanced approach that ensures both flexibility and accountability as effectively as requiring periodic reevaluations of the WQS variance. Additionally, on the basis of commenters’ suggestions, EPA considered requiring identi fication and documentation of cost

- effective and reasonable BMPs for nonpoint sources for all WQS variances and not just for WQS variances applicable to a water body or waterbody segment . To achieve EPA’s policy objectives, EPA chose instead to add a requi rement for all WQS variances that states and authorized tribes describe the pollutan t control activities to achieve the highest attainable condition (see § 131.14(b)(2)(ii)).

What Is EPA’s Position on Certain Public Comments?

EPA received comments that suggested confusion between WQS variances and NPDES permit compliance schedules. WQS variances can be appropriate to address situations where it is known that the designated use and criterion are unattainable today , but progress could be made toward attaining the designated use and criterion. Typically, a permit authority grants a permit compliance schedule when the permittee needs additional time to modify or upgrade treatment facilities in order to meet its WQBEL based on the ap plicable WQS (i.e., designated use and criteri on ). After the effective date of this rule, a permit authority could also grant a permit*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 84 of 131 compliance schedule when the permittee needs additional time to meet its WQBEL based on the applicable WQS variance (i.e. , highest attainable condition ) such that a schedule and resulting milestones will lead to compliance with the effluent limits derived from the WQS variance “as soon as possible.” If a WQS variance is about to expire and a state or authorized tribe concludes the underlying designated use is now attainable, it is not appropriate for the state or authorize d tribe to adopt a subsequent WQS variance. However, if a permittee is unable to immediately meet a WQBEL consistent with the now attainable WQS, and the permitting authority can specify an enforceable sequence of actions that would result in achieving the WQBEL, the permitting authority could grant a permit compliance schedule consistent with § 122.47. If the underlying designated use is still not att ainable, the state or authorized tribe can adopt a subsequent WQS variance.

EPA also received comments questioning how a WQS variance works with a TMDL and CWA section 303(d) impaired waters listing (s) . These comments suggested the proposed rule creates a conflict in how the NPDES permitting regulation requires permitting authorities to develop WQBELs. Section 122.44(d)(1)(v ii)(A) specifies that all WQBELs in an NPDES permit must derive from and comply with all applicable WQS. Section 122.44(d)(1)(vii)(B) specifies that the WQBEL of any NPDES permit must be consistent with the assumptions and requirements of any available (emphasis added) waste load allocation ( WLA ) in an EPA

- approved or EPA

established TMDL. Because the WLA of the TMDL is based on the und erlying designated use and criterion (and not the highest attainable condition established in the WQS variance), then the
WLA in the TMDL is not available to the permittee covered by the WQS variance for NPDES permitting purposes while the WQS variance is in effect. The permitting authority must develop*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 85 of 131 WQBELs for the permittees subject to the WQS variance based on the interim requirements specified in the WQS variance. Upon termination of the WQS variance, the NPDES permit must again derive from and comply with the underlying designated use and criterion and be consistent with the assumptions and requirements of the W LA (as it is again “available”).

Some comment er s questioned what would happen if a state or authorized tribe does not coordinate a WQS varian ce term with the expiration date of an NPDES permit. If information is available to the permitting authority indicating that the term of a WQS variance will end during the permit cycle, the permitting authority must develop two WQBELs: one WQBEL based on
t he highest attainable condition applicable throughout the WQS variance term, and another WQBEL based on the underlying designated use and criterion to apply after the WQS variance terminates. Including two sets of WQBELs that apply at different time period s in the permit ensures that the permit will derive from and comply with WQS throughout the permit cycle. If the state or authoriz ed tribe adopts and EPA approves a subsequent WQS variance during the permit term to replace an expiring WQS variance, the new WQS variance would constitute “new regulations” pursuant to § 122.62(a)(3)(i) , and the permitting authority could modify the permit to derive from and comply with the subsequent WQS variance. At the request of the permittee, the permitting authority can a lso utilize the Permit Actions condition specified in § 122.41(f) to modify a permit and revise the WQBEL to reflect the new WQS va riance.

Some commenters questioned whether states and authorized tribes must modify WQS variances that states and authorize d tribes adopted before the effective date of today’s rule. States and authorized tribes must meet the requirements of this rule on the effective date of today’s rule. As*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 86 of 131 with any WQS effective for CWA purposes, WQS variances are subject to the triennial review requirements at § 131.20(a). When a state or authorized tribe reviews a WQS variance that was adopted before § 131.14 becomes effective, EPA strongly encourages the state or authorized tribe to ensure the WQS variance is consistent with today’s rule. EPA encourages the public to engage in triennial reviews and request revisions to WQS variances that states and authorized tribes adopted and EPA approved prior to the ef fective date of today’s rule so that the public can provide information supporting the need to modify the WQS variances. Some states and authorized tribes may also have adopted binding WQS varian ce policies and/or procedures. Such policies and procedures a re not required by EPA’s regulation before utilizing WQS variances, however, w here state and authorized tribes have them and they are inconsistent with today’s rule, those states and authorized tribes must revise such policies and/or procedures prior to, o r simultaneously with, adopting the first WQS variance after the effective date of today’s rule.

A state or authorized tribe may be able to streamline its WQS variance process in several ways. As discussed earlier in this section, one way is to adopt multiple discharger WQS variances. In justifying the need for a multiple discharger WQS variance, stat es and authorized tribes should account for as much individual permittee information as possible. A permittee that cannot qualify for an individual WQS variance cannot qualify for a multiple discharger WQS variance. EPA recommends that states and authorize d tribes provide a list of the dischargers covered under the WQS variance on their websites or other publicly available sources of state or authorized tribal information, particularly when using multiple discharger WQS variances.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 87 of 131 A second way is to adopt an administrative procedure that fulfills the WQS submittal and review requirements and specifies that if the state or authorized tribe follows the procedure, the WQS variance is legally binding under state or tribal law. A state or authorized tribe could submit such an administrative procedure for a WQS variance, as a rule, to EPA for review and approval under § 131.13. Once approved, the state or authorized tribe can follow this administrative procedure and develop a final document for each WQS variance. Because the state or tribal law specifies this WQS variance document is legally binding, there is no need for the state or authorized tribe to do a separate rulemaking for each individual WQS variance. Rather, the state or authorized tribe could submit eac h resulting WQS variance document, with an Attorney General or appropriate tribal legal authority certification, and EPA could take action under CWA section 303(c).

Some commenters questioned how today’s rule affects states and authorized tribes under th e 1995 Great Lakes Water Quality Guidance (GLWQG) 55 because those requirements are different than the WQS variance requirements in today’s final rule. For waters in the Great Lakes basin, states and authorized tribes must meet the requirements of both 40 CF R Parts 131 and 132. The practical effect of this requirement is that, where regulations in 40 CFR Parts 131 and 132 overlap, the more stringent regulation applies. In some cases, the flexibilities and requirements in the national rule will not be applicab le to waters in the Great Lakes basin. For example, the GLWQG limits any WQS variance to a maximum term of five years (with the ability to obtain a subsequent WQS variance). Therefore, any WQS variance on waters that are subject to the GLWQG cannot exceed five years even though today’s final rule in 40 CFR Part 131 does not

55 See 60 F ed. R eg.15366 (March 23, 1995); 40 CFR Part 132.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 88 of 131 specify a maximum term. On the other hand, because GLWQG WQS variances cannot exceed five years, the requirements in today’s final rule that pertain to conducting reevaluations (for WQS variances greater than five years) are not applicable.

Finally, some commenters questioned the level of “scientific rigor” required for a WQS variance as compared to a UAA required for changes to 101(a)(2) uses. Section 40 CFR 131.5(a)(4) provides that EP A’s review under section 303(c) involves a determination of whether the state’s or authorized tribe’s “ standards which do not include the uses specified in section 101(a)(2) of the Act are based up on appropriate technical and scientific data and analys e s . . . ” Because variances are time

- limited designated uses and criteria , this requirement applies to WQS variances . S tates and authorized tribes must adopt WQS variances based on appropriate technical and scientific data and analyses. Therefore, the level of rigor required for a WQS variance is no different than for a designated use change. That said, the appropriate technical and scientific data required to support a designated use change and WQS variance can vary depending on the complexity of the specific circumstances

. EPA recognizes that the data and analyses often needed to support adoption of a WQS variance could be less complex and require less time and resources compared to removing a designated use because many WQS variances evaluate only

one parameter for a single permittee for a limited period of time. The level of effort a state or authorized tribe needs to devote to a WQS variance will in large part be determined by the complexity of the water quality problem the state or aut horized tribe s eeks to address.

F. Provisions Authorizing the Use of Schedules of Compliance for WQBELs in NPDES Permits*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 89 of 131 What Does Today’s Rule Provide and Why?

In 1990, EPA ’s Administrator concluded that before a permitting authority can include a compliance schedule for a WQBEL in an NPDES permit, the state or authorized tribe must affirmatively authorize its use in its WQS or implementing regulations. 56 EPA approval of the state’s or authorized tribe’s permit compliance schedule authorizing provision as a WQS ensures that any NPDES permit WQBEL with a compliance schedule derives from and complies with applicable WQS as required by § 122.44(d)(1)(vii)(A). Because the state’s or authorized tribe’s approved WQS authorize extended compliance, any delay in complian ce with a WQBEL pursuant to an appropriately issued permit compliance schedule is consistent with the statutory implementation timetable in CWA section 301(b)(1)(C).

The use of legally

- authorized permit compliance sche dules by states and authorized tribes provid es needed flexibility for many dischargers undergoing facility upgrades and operational changes designed to meet WQBELs in their NPDES permits. This flexibility will become increasingly important as states and authorized tribes adopt more stringent WQS, including numeric nutrient criteria , and address complex water quality problems presented by emerging challenges like climate change.

Some states have adopted compliance schedule authorizing provisions but have not submit ted them to EPA for approval as WQS pursuant to CWA section 303(c). Other states have not yet

56 In the Matter of Star

- Kist Caribe, Inc. 3 EAD 172 (April 16, 1990).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 90 of 13 1 adopted compliance schedule authorizing provisions. A permit could be subject to legal challenge where a state and authorized tribe decide to authorize permit fle xibility using permit compliance schedules , but do not have a compliance schedule authorizing provision approved by EPA as a WQS

.

Section 131.15 in today’s final rule requires that if a state or authorized tribe intends to authorize the use of compliance schedules for WQBELs in NPDES permits, it must first adopt a permit compliance schedule authorizing provision. The authorizing provision must be consistent with the CWA and is subject to EPA review and approval as a WQS. T oday’s rule add s § 131.5(a)(5 )
to explicitly specify that EPA has the authority to determine whether any provision authorizing the use of schedules of complicance for WQBELs in NPDES permits adopted by a state or authorized tribe is consistent with the requirements at § 131.15

. T oday’s ru le also includes a number of non

- substantive editorial changes.

By expressly requiring that the state or authorized tribe adopt a permit compliance schedule authorizing provision, the first sentence of the final regulation at § 131.15 ensures that the sta te or authorized tribe has expressly made a determination that, under appropriate circumstances, it can be lawful to delay permit compliance. Formal adoption as a legally binding provision ensures public transparency and facilitates public involvement.

S ome commenters expressed concern that the proposed regulatory language regarding state and authorized tribal adoption could be interpreted to refer to permit compliance schedules themselves, rather than their authorizing provisions. To address that concern , the final rule refers*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 91 of 131 to “ the use of ” schedules of compliance

. The phrase “the use of” indicates that the mere adoption of an authorizing provision, by itself, does not extend the date of compliance with respect to any specific permit’s WQBEL; rather, it s adoption allows the state or authorized tribe to use schedules of compliance, as appropriate, on a case

- by

- case basis in individual permits.

The second sentence of the final regulation at § 131.15 provides that states’ and authorized tribes’ authorizing provisions must be consistent with the CWA and are WQS subject to EPA review and approval. By incorporating the authorizing provision into the state’s or authorized tribe’s approved WQS , the state or authorized tribe ensures that a permitting authority can then legally issue compliance schedules for WQBELs in NPDES permits that are consistent with CWA section 301(b)(1)(C). Only the permit complia nce schedule authorizing provisions are WQS subject to EPA approval; individual permit compliance schedules are not. The final rule provides flexibility for a state or authorized tribe to include the authorizing provision in the part of state or tribal reg ulations where WQS are typically codified, in the part of state or tribal regulations dealing with NPDES permits, or in other parts of the state’s or authorized tribe’s implementing regulations. Regardless of where the authorizing provision is codified , as long as the provision is legally binding, EPA will take action on it under CWA section 303(c). If a state or authorized tribe has already adopted an authorizing provision that is consistent with the CWA, it need not readopt the provision for purposes of s atisfying today’s rule. Instead, the state or authorized tribe can submit the provision to EPA with an A ttorney G eneral or appropriate tribal legal authority certification. Moreover, consistent with § 131.21(c), any permit compliance schedule authorizing p rovision that was adopted, effective, and submitted to EPA before May 30,
2000 , is applicable for purposes of § 131.15

.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 92 of 131 Today’s final rule does not change any permit compliance schedule requirements at § 122.47.

Other judicial and administrative mechanisms issued pursuant to other authorities, such as an enforcement order issued by a court, can delay the need for compliance with WQBELs. Today’s rule does not address those other mechanisms.

What Did EPA Consider?

EPA considered finalizing § 131. 15, as proposed. Given the comments indicating that ambigu ity in the proposed language could lead to confusion over whether the requirements to adopt and submit for EPA approval applied directly to permit compliance schedules themselves, EPA did not select this option. Instead, EPA added clarifying language to ad dress the commenters’ concern and streamlined the text of the proposed rule without making substantive changes. EPA also considered foregoing the addition of § 131.15. M any commenters, however, supported adding § 131.15 as a useful clarification of the need and process for states and authorized tribes to adopt compliance schedule authorizing provisions

.

What Is EPA’s Position on Certain Public Comments?

Some commenters said that the following proposed regulatory language

- “authorize schedules of compliance for water quality

- based effluent limits (WQBELs) in NPDES permits”

- could have the effect of narrowing the universe of NPD ES permits and permit requirements for whic h*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 93 of 131 permitting authorities can include permit compliance schedules. The regulation does not narrow that universe, however, nor does it preclude other appropriate uses of permit compliance schedules as provided for i n § 122.47 . The new § 131.15 requirements o nly apply to the authorization of compliance schedules for WQBELs in NPDES permits . S uch WQBELs are designed to meet WQS established by the state or authorized tribe and approved by EPA under CWA section 303(c). 57 Adding this new provision to the WQS regulation will ensure that the state or authorized tribe takes the necessary steps to ensure that any NPDES permit with a permit compliance schedule for a WQBEL is consistent with the state’s or authorized tribe’s app licable WQS. The requirement in § 131.15 does not preclude, or apply to, use of compliance schedules for permit limitations or conditions that are not WQBELs. A permitting authority can grant a permit compliance schedule for non

- WQBEL NPDES permit limits o r conditions without an
EPA

- approved authorizing provision, provided the permit compliance schedule is consistent with the CWA, EPA’s permitting regulation, especially §§ 122.2 and 122.47, and any applicable state or tribal laws and regulations. Permitting authorities can include such permit compliance schedules without an EPA

- approved permit compliance schedule authorizing provision because such limits and conditions are not themselves designed to implement the state’s or authorized tribe’s approved WQS.

G. Other Changes

What Does Today’s Rule Provide and Why?

57 40 CFR 122.44(d)(1); 122.44(d)(1)(vii)(A).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 94 of 131 Regulatory provisions can only be effective if they are clear and accurate. Even spelling and grammar mistakes , and inconsistent terminology can cause confusion. Today’s rule, therefore,
corrects t hese types of mistakes and inconsistencies in the following 11 regulatory provisions: § 131.2, § 131.3(h), § 131.3(j), § 131.5(a)(1), § 131.5(a)(2), § 131.10(j), § 131.10(j)(2), § 131.11(a)(2), § 131.11(b), and § 131.20(b). The rule finalizes eight of the provisions, as proposed. However, based on public comments, EPA revised how it is correcting § 131.5(a)(2), § 131.12(a)(2), and § 131.20(b). EPA notes that in correcting these minor pre

- existing errors, it did not reexamine the substance of these regulator y provisions. Thus EPA did not reopen these regulatory provisions.

With regard to the revision at § 131.5(a)(2), today’s rule adds a reference to § 131.11 and “sound scientific rationale” to make the link clear. Commenters expressed concern that “sound scientific rationale” was an ambiguous and subjective point of reference and may interfere with the ability of states and authorized tribes to use narrative crit eria. By linking the two regulatory sections, today’s rule makes clear that this provision does not contradict the requirements and flexibilities provided in § 131.11.

Today’s rule at § 131.12(a)(2) correctly cites to the CWA language and makes no other c hanges. EPA proposed revising “assure” to “ensure,” however , today’s rule does not include this change. Commenters raised the question of whether the revision changed the meaning of the provision. Although both “assure” and “ensure” mean “to make sure,” EP A recognizes that the context surrounding the word is important. While “ensure” is used in § 131.10(b) , in this context, the states and authorized tribes can “make sure” their WQS meet the regulatory requirements.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 95 of 131 However, § 131.12(a)(2), address es water q uality, not WQS. While states and authorized tribes have control over their WQS, they do not have the same control over the resulting water quality as it can be affected by many other factors. So use of the word “ensure” would not be appropriate in this pr ovision

.

Today’s rule clarifies four points related to public hearings

. First, it clarifies that 40 CFR Part 25 is EPA’s public participation regulation that sets the minimum requirements for public hearings and removes the nonexistent citation to “EPA’s water quality management regulation (40 CFR 130.3(b)(6)).” Second, it clarifies that holding one public hearing may satisfy the legal CWA requirement although states and authorized tribes may hold multiple hearings. The purpose of this revision is to provi de consistency with the language of CWA section 303(c)(1) and § 131.20(a), not to create a requirement that states and authorized tribes must hold multiple hearings when reviewing or revising WQS as a result of the same public hearing

. Third, EPA’s
corresp onding change in § 131.5(a)(6) clarifies that EPA’s authority in acting on revised or new WQS includes determining whether the state or authorized tribe has followed the “applicable” legal procedures. Applicable legal procedures include those required by t he CWA and EPA’s implementing regulations. In particular, states and authorized tribes must comply with the requirement in § 131.20(b) to hold a public hearing in accordance with 40 CFR Part 25 when reviewing or revising WQS. The purpose of the § 131.20(b) requirements is to implement the CWA and provide an opportunity for meaningful public input when states or authorized tribes develop WQS, which is an important step to ensure that adopted WQS reflect full consideration of the relevant issues raised by the public. Finally, § 131.20(b) and EPA’s corresponding deletion of § 131.10(e) clarify that a public hearing is required when (1) reviewing WQS per §*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 96 of 131 131.20(a); (2) when revising WQS as a result of reviewing WQS per § 131.20(a); and (3) whenever revising WQ S, regardless of whether the revision is a result of triennial review per § 131.20(a). EPA reviewed the use of the phrase “an opportunity for a public hearing” used in § 131.10(e) and found that such language contradicts the CWA and § 131.20(b). Therefore, EPA is deleting this provision as a conforming edit to its clarifications in § 131.20(b). As suggested by commenters, EPA replaced its proposed language of “reviewing or revising” to “revi ewing as well as when revising” to make clear that public participation is required in all of these circumstances.

What Is EPA’s Position on Certain Public Comments?

A comment er requested that EPA further revise the regulation to allow states and authorized tribes to gather public input in formats other than public hearings (e.g., public meetings, webinars). Although EPA acknowledges the challenges that states and authorized trib es may experience when planning and conducting a public hearing, the requirement to hold hearings for the purposes of reviewing, and as appropriate, modifying and adopting WQS comes directly from CWA section 303(c)(1). Further, meaningful involvement of th e public and intergovernmental c oordination with local, state, f ederal, and tribal entities with an interest in water quality issues is an important componen t of the WQS process

. States and authorized tribes have discretion to use other outreach efforts in addition to fulfilling the requirement for a public hearing.
A “public hearing” may mean different things to different people. At a minimum, per § 131.20(b), states and authorized tribes are required to follow the provisions of state or tribal law*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 97 of 131 and EPA ’s public participation regulations at 40 CFR Part 25. EPA’s public participation regulation, at 40 CFR 25.5, sets minimum requirements for states and authorized tribes to publicize a hearing at least 45 days prior to the date of the hearing; provide to th e public reports, documents, and data relevant to the discussion at the public hearing at least 30 days before the hearing; hold the hearing at times and places that facilitate attendance by the public; schedule witnesses in advance to allow maximum partic ipation and adequate time; and prepare a transcript, recording, or other complete record of the hearing proceedings. See 40 C FR 25.5 for the actual list of f ederal public hearing requirements. State and tribal law may include additional requirements for st ates and authorized tribes to mee t when planning for and conducting a hearing. In addition to meeting the requirements of state and tribal law and 40 CFR Part 25, states and authorized tribes may also choose to gather public input using other formats, such as public meetings and webinars.

III. Economic Impacts on State and Authorized Tribal WQS Programs

EPA evaluated the potential incremental administrative burden and cost that may be associated with today’s rule, beyond the burden and cost of the WQS r egulation already in place. EPA’s estimate is higher than the proposed estimate of the rule for two reasons unrelated to any subs tantive change in requirements. First, EPA obtained more precise estimates of burden and costs. EPA received many comments sugg esting that EPA underestimated the proposed burden and cost of the rule. States specifically requested to meet with EPA to provide additional
i nformation for EPA to consider. EPA engaged the states, as requested and incorporated the information provided in to its final economic anlaysis

. The higher estimate is also partly due to*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 98 of 131 EPA using known data to extrapolate burden and costs to states, territories and authorized tribes where data was unavailable

. EPA describes its method of extrapolation in detail in i ts full economic analysis available in the docket of today’s rule. EPA’s economic analysis focuses on the potential administrative burden and cost to all 50 states, the District of Columbia, five territories, the 40 authorized tribes with EPA

- approved WQS, and to EPA. While this rule does not establish any requirements directly applicable to regulated point sources or nonpoint sources of pollution, EPA acknowledges that this rule may result in indirect costs to some regulated

e ntit i es as a result of changes to WQS that states and authorized tribes adopt based on today’s final rule. EPA is unable to quantify indirect costs and benefits since it cannot anticipate precisely how the rule will be implemented by states and authorized tribes and because of a lack of data. States and authorized tribes always have the discretion to adopt new or revised WQS independent of today’s final rule that could result in costs to point sources and nonpoint sources. EPA’s economic analysis and an exp lanation for how EPA derived its cost and burden estimates are documented in the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) and can be found in the docket for this rule

.

EPA assessed the potential incremental burde n and cost of today’s final rule using the same basic methodology it use d to assess the potential incremental burden and cost of EPA’s proposed rule , including : (1) identifying the elements of today’s final rule that could potentially result in incremental burden and cost; (2) estimating the incremental number of labor hours states and authorized tribes may need to allocate in order to comply with those elements of today’s final rule; and (3) estimating the cost associated with those additional labor hours.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 99 of 131 EPA identified four areas where differences between the proposed and final rules affected burden and cost estimates. First, when states and authorized tribes submit the results of triennial reviews to EPA, they must provide an explanation when not adopti ng new or revised water quality criteria for parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations. Second, when developing or revising antidegradation implementation methods and when deciding which waters would receive Tier 2 antidegradation protection under a water body

- by

- water body approach, states and authorized tribes mus t provide an opportunity for public involvement. States and authorized tribes must also document and keep in the public record the factors they considered when making those decisions. Third, today’s rule no longer includes a maximum WQS variance dura tion of 10 years and thus eliminates the burden and cost associated with renewing a WQS variance when the state or authorized tribe can justify a longer term. Fourth, today’s rule requires states and authorized tribes to proactively reevaluate WQS variances that have a term longer than five years no less frequently than every five years and to submit the results of each reevaluation to EPA within 30 days of completion. EPA also revised certain economic assumptions based on additional inf ormation obtained independently by EPA and in response to stakeholder feedback.

The potential i ncremental burden and cost of today’s rule include five categories: (1) one

- time burden and cost associated with state and authorized tribal rulemaking activities when some states and authorized tribes may need to adopt new or revised provisions into their WQS (e.g., review currently adopted water quality standards to determine if the new requirements necessitate revisions, such as modifying antidegradation policy, revis ing WQS variance procedures if the state or authorized tribe has chosen to adopt such a procedure, or adopt ing a*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 100 of 131 permit compliance schedule authorizing provision); (2) recurring burden and cost associated with removing uses specified in CWA section 101(a)(2) because states and authorized tribes must identify the HAU ; (3) recurring burden and cost associated with triennial reviews whereby states and authorized tribes must prepare and submit an explanation when not adopting new or revised water quality criteria for parameters for whic h EPA has published new or updated CWA section 304(a) criteria recommendations; (4) recurring burden and cost associated with antidegradation requirements, including providing the opportunity for public involvement when developing and subsequently revising antidegradation implementation methods ; providing the opportu nity for public involvement when deciding which waters will receive Tier 2 antidegradation protection when using a water body

- by

- water body approach ; documenting and keeping in the public record the factors the state or authorized tribe considered when dec iding which waters will receive Tier 2 antidegradation protection ; and performing/evaluating more extensive and a greater number of antidegradation reviews ; and (5) recurring burden and cost associated with developing and documenting WQS variances for subm ission to EPA, and reevaluating WQS variances with a term longer than five years no less frequently than every five years. EPA did not estimate potential cost savings associated with a provision in t oday’s rule that a UAA is not required when removing a no n - 101(a)(2) use because states and authorized tribes continue to have the discretion to conduct a UAA when removing such use s .

Estimates of the potential incremental burden and cost of today’s final rule are summarized in the following tables.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 101 of 131 Summary of Potential Incremental Burden and Cost to States and Authorized Tribes

Provision One

- time Activities Recurring Activities Burden (hours) Cost (2013$ millions) Annualized Cost (2013$ millions/year) 1 Burden (hours/year) Cost (2013$ millions/year) Rulemaking Activities 48,000

- 96,000 $2.35

- $4.70 $0.16

- $0.32

-- -- Designated Uses

-- -- -- 2,250

- 4,500 $0.11

- $0.22 Triennial Reviews

-- -- -- 4,320

– 21,600 $0.21

- $1.06 Antidegradation 6,450

- 12,900 $0.32

- $0.63 $0.02

- $0.04 4 8 , 015

- 143, 400 $2.37

- $7.02
Variances

-- -- -- 51,840

- 233,280 $2.54

- $11.43
National Total 54,450

- 108,900 $2.67

- $5.34 $0.18

- $0.36 106, 425

- 402, 780 $5.24

- $19.73

‘

-- ‘ = not applicable Note: Individual annual cost estimates do not add to the total because of independent rounding. 1. Although EPA expects one

- time rulemaking activity costs to be incurred over an initial three

- year period, it annualized costs at a three percent discount rate over 20 years for comparative purposes. See the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) for the potential incremental burden and cost using a seven percent discount rate. Summary of Potential Incremental Burden and Cost to EPA 1 One

- time Activities Recurring Activit i es Cost to

the Agency (2013$ million) 2 Annualized Cost to the Agency (2013$ million per year) 3 Burden Cost to the Agency (2013$ million per year) 6 Burden

Hours 4 FTEs 5 Hours per year 4 FTEs per year 5 $0.53

- $1.07 $0.04

- $0.07 7,0 80

- 14,1 5 0 3. 4

- 6. 8 $1.05

- $3.95 13, 90 0

- 5 2 , 3 2 0 6. 7

- 2 5

. 2 1. Assuming that the incremental burden and costs to EPA are equal to 20 percent of the burden and costs to states and authorized tribes. 2. $0.53 million ($2.67 million × 20 percent ) to $1.07 million ($5.34 million × 20 percent ) 3. Although EPA expects these one

- time costs to be incurred over an initial three

- year period, the costs are annualized at three percent discount rate over 20 years for comparative purposes. See the Economic Analysis fo r the Water Quality Standards Regulatory Revisions (Final Rule) for the potential incremental burden and cost using a seven percent discount rate. 4 . Total costs to the Agency divided by hourly wage rate ($ 75.41 per hour). 5 . Burden hours to the Agency divided by hours worked by full

- time equivalent (FTE) employees per year (2,080 hours per year). 6 . $1.05 million ($5.24 million × 20 percent ) to $3.95 million ($19.73 million × 20 percent )*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 102 of 131 Combined Summary of Potential Incremental Burden and Cost to Sta tes, Authorized Tribes, and EPA

Entities One

- time Activities Recurring Activities Burden (hours) Cost (2013$ millions) Annualized Cost (2013$ million/year) 1 Burden (hours/year) Cost (2013 $millions/year) States and Authorized T ribes 54,450

- 108,900 $2.67

- $5.34 $0.18

- $0.36 106, 425

- 402,7 80 $5.24

- $19.73 Agency 7,0 8 0

- 14,1 5 0 $0.53

- $1.07 $0.04

- $0.07 13, 900

- 5 2 , 320 $1.05

- $3.95
Total 61, 530

- 122,0 50 $3.20

- $6.40 $0.22

- $0.43 120, 325

- 45 5 , 100 $6.2 9

- $23.6 8 Note: Individual annual cost estimates do not add to the total because of independent rounding. 1. Although EPA expects states and authorized tribes to incur rulemaking costs over an initial three

- year period, it annualized one

- time costs at a three percent disc ount rate over 20 years for comparative purposes. See the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) for the potential incremental burden and cost using a seven percent discount rate.
To estimate the total annual cost of this rule which includes both one

- time cost and recurring cost, EPA annualized the one

- time cost over a period of 20 years. Using a 20

- year annualization period and a discount rate of three percent, EPA estimates the to tal annual cost for this final rule to range from $6.5 1 million per year ($0.22 million per year + $6.2 9 million per year ) to $24.1 1 million per year ($0.43 million per year + $23.6 8 million per year )

. 58

EPA also evaluated the potential benefits associated with this rule. States and authorized tribes will benefit from these revisions because the WQS regulation will provide clear requirements to facilitate the ability of states and authorized tribes to effe ctively and legally utilize available regulatory tools when implementing and managing their WQS programs. Although associated with potential administrative burden and cost in some areas, this rule has the potential to partially offset these burdens by redu cing regulatory uncertainty and increasing overall program

58 See the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) for the potential incremental burden and cost for this final rule using a seven percent discount rate.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 103 of 131 efficiency. Use of these tools to improve establishment and implementation of state and authorized tribal WQS , as discussed throughout the preamble to this rule , provides incremental improvements i n water quality and a variety of economic benefits associated with these improvements , including the availability of clean, safe, and affordable drinking water; water of adequate quality for agricultural and industrial use; and water quality that supports the commercial fishing industry and higher property values. Nonmarket benefits of this rule include greater recreational opportunities and the protection and improvement of public health. States, authorized tribes, s takeholders and the public will also ben efit from the open public dialogue that results from the additional transparency and public participation requirements included in this rule. Becau se states and authorized tribes implement their own WQS programs, EPA could not reliably predict the control measures likely to be implemented and subsequent improvements to water quality, and thus could not quantify t he resulting benefits.

IV. Statutory and Executive Order Reviews

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws

- regulations/laws

- and

- executive

- orders

.

A. Executive Order 12866: Regul atory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

T his action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review

. A ny changes made in response to OMB recommendations have been*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 104 of 131 documented in the docket. EPA prepared an analysis of the potential costs and benefits associated with this action . This analysis, Economic Analysis for the Water Quality Standards Regulatory Rev isions (Final Rule) , is summarized in section III of the preamble and is available in the docket

.

B. Paperwork Reduction Act (PRA)

The information collection activities in this rule have been submitted for approval to OMB under the PRA

. The Information Collection Request (ICR) document that EPA prepared has been assigned EPA ICR number 2449. 0 2 . You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enf orceable until OMB approves them.

The core of the WQS regulation , established in 1983 , requires EPA to collect certain information from states and authorized tribes and has an approved ICR (EPA ICR number 988.11; OMB Control number 2040

- 0049). Today’s ru le requires states and authorized tribes to submit certain additional information to EPA. This mandatory information collection ensure s EPA has the necessary information to review WQS and approve or disapprove consistent with the rule. The goals of the rul e can only be fulfilled by collecting this additional information. Due to the nature of today’s rule, EPA assume s that all administrative burden associated with today’s rule, summarized in section III, is associated with information collection.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 105 of 131 Respondent s/affected entities: The respondents affected by this collection activity include the 50 states, the District of Columbia, five territories, and 40 authorized tribes that have EPA

- approved WQS. The respondents are in NAICS code 92411 “Administration of Air and Water Resources and Solid Waste Management Programs,” formerly SIC code #9511.

Respondent’s obligation to respond: The collection is required pursuant to CWA section 303(c), as implemented by the revisions to 40 CFR Part 131.

Estimated number of res pondents: A total of 96 governmental entities are p otentially affected by the rule.

Frequency of response: The CWA requires states and authorized tribes to review their WQS at least once every three years and submit the results to EPA. In practice, some s tates and authorized tribes choose to submit revised standards for portions of their waters more frequently.

Total estimated burden: EPA estimates a total annual burden of 124,5 75

– 43 9 , 080 hours and 3,176 to 5,096 responses per year. Burden is defined at 5 CFR 1320.3(b). A “response” is an action that a state or authorized tribe would need to take in order to meet the information collection request provided in the rule (e.g., documentation supporting a WQS variance). See also the “Information Collection R equest for Water Quality Standards Regulatory Revisions (Final Rule)” in the docket for this rule.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 106 of 131 Total estimated cost: Total estimated annual incremental costs range from $6.1 3 million to $21.51 million

.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA’s regulations in 40 CFR are listed in 40 CFR Part 9. When OMB approves this ICR, the Agency will announce the approval in the Federal Register and publish a technical amendment to 40 CFR Part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA . State and authorized tribal governments responsible for administering or overseeing water qua lity programs may be directly affected by this rulemaking, as states and authorized tribes may need to consider and implement new provisions, or revise existing provisions, in their WQS. Small entities, such as small businesses or small governmental jurisd ictions, are not direct ly regulated by this rule. This rule will not impose any requirements on small entities.

D. Unfunded Mandates Reform Act (UMRA)*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 107 of 131 This rule does not contain a f ederal mandate that may result in expenditures of $100 million or

more for state, local, and tribal governments, in the aggregate, or the privat e sector in any one year. EPA estimates total annual costs to states and authorized tribes to range from $5.24 million to $19.73 million per year. Thus, this rule is not subject to th e requirements of sections 202 or 205 of UMRA.

This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

E. Executive Order 13132 : Federalism

This rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the n ational g overnment and the states, or on the distribution of power and responsibilities among the var ious levels of government. The rule finalizes regulatory revisions to provide clarity and transparency in the WQS regulation that may require state and local officials to reevaluate or revise their WQS. However, the rule will not impose substantial direct compliance costs on state or local governments, nor will it preempt state law. Thus, Executive Order 13132 does not apply to this action.

Keeping with the spirit of Executive Order 13132 and consistent with EPA’s policy to promote communications between EPA and state and local governments, EPA consulted with state and local officials early in the process and solicited their comments on the proposed action and on the development of t oday’s rule.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 108 of 131 Between September 2013 and June 2014, EPA consulted with re presentatives from states and intergovernmental associations at their request, to hear their views on the proposed regulatory revisions and how commenters’ suggested revisions would impact implementation of their WQS programs. Some participants expressed c oncern that the proposed changes may impose a resource burden on state and local governments, as well as infringe on states’ flexibility in the areas included in the proposed rule. Some participants urged EPA to ensure that states with satisfactory regulat ions in these areas are not unduly burdened by the regulatory revisions.

F. Executive Order 13175 : Consultation and Coordination with Indian Tribal Governments

T his action may have tribal implications. However, it will neither impose substantial direct compliance costs on tribal governments, nor preempt tribal law. Thus, Executive Order 13175 does not apply to this action. To date, 4 9 Indian tribes have been appro ved for treatment in a manner similar to a state (TAS) for CWA sections 303 and 401. Of the
4 9 tribes, 40 h ave EPA

- approved WQS in their respective jurisdictions. All of these authorized tribes are subject to this regulation. However, this rule might impac t other tribes as well be cause f ederal, state, or authorized tribal WQS may apply to waters adjacent to the tribal waters.

EPA consulted and coordinated with tribal officials consistent with EPA’s Policy on Consultation and Coordination with Indian Tribe s early in the process of developing this*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 109 of 131 regulation to a llow them to provide meaningful and timely input into its development. In August 2010 , November 2013 , and October 2014, EPA held tribes

- only consultation and coordination sessions to hear their views and answer questions of all interested tribes on the targeted areas EPA considered for r egulatory revision. Tribes expressed the need for additional guidance and assistance in implementing the proposed rulemaking, specifically for development of antidegra dation implementation methods and determination of the highest attainable use. EPA considered the burden to states and authorized tribes in developing today’s rule and, when possible, has provided direction and flexibility that allows tribes to address hig her priority aspects of their WQS programs. EPA als o intends to release updated guidance in a new edition of the WQS Handbook. A summary of the consultation and coordination is available in the docket for this rule.

G. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks

This action is not subject to Executive Order 13045, because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 110 of 131 This action is not a “significant energy a ction” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

I. National Technology Transfer and Advancement Act

This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low
- Income Populations

EPA has determined that today’s rule will not have disproportionately high and adverse human health or environmental effects on minority or low

- income popu lations, because it does not adversely affect the level of protection provided to human health or the environment. This rule does not directly establish WQS for a state or authorized tribe. In addition, this rule is national in scope and , therefore , is not specific to a particular geographic area(s).

K. Congressional Review Act (CRA)

This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 111 of 131 List of Subjects in 40 CFR Part 131.

Environmental protection, water quality standards, regulatory revision, Administrator’s determination, designated uses, antidegradation, water quality standards varia nces, triennial reviews, water quality criteria, compliance schedule authorizing provisions.

PLACEHOLDER FOR
SIGNATURE BLOCK
AND DATE

For the reasons stated in the preamble, EPA finalizes amend ments to 40 CFR P art 131 as follows:

PART 131

— WATER QUALITY STANDARDS

1. The authority citation for part 131 continues to read as follows: Authority: 33 U.S.C. 1251 et seq

.

Subpart A
- General Provisions

2. Amend § 131.2 by revising the first sentence to read as follows:*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 112 of 131 § 131.2 P urpose.

A water quality standard defines the water quality goals of a water body, or portion thereof, by designating the use or uses to be made of the water and by setting criteria that protect the designated uses. * * *

3. Amend § 131.3 by revising paragraphs (h) and (j), and addi ng paragraphs (m), (n), (o), (p), and (q) to read as follows:

§ 131.3 Definitions.

* * * * *

(h) Water quality limited segment means any segment where it is known that water quality does not meet applicable water quality standards, and/or is not expecte d to meet applicable water quality standards, even after the application of the technology

- based effluent limitations required by sections 301(b) and 306 of the Act.

* * * * *

(j) States include: The 50 States, the District of Columbia, Guam, the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 113 of 131 Islands, and Indian Tribes that EPA determines to be eligible for purposes of the water qualit y standards program.

* * * * *

(m) Highest attainable use is the modified aquatic life, wildlife, or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, based on the evaluation of the factor(s) in § 1 31.10(g) that preclude(s) attainment of the use and any other information or analyses that were used to evaluate attainability. There is no required highest attainable use where the State demonstrates the relevant use specified in section 101(a)(2) of the Act and subcategories of such a use are not attainable.

(n) Practicable , in the context of § 131.12(a)(2)(ii), means technologically possible, able to be put into practice, and economically viable.

(o) A water quality standards variance (WQS variance) is a time

- limited designated use and criterion for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable condition during the term of the WQS variance.

(p) Pollutant Minimization Program , in the context of § 131.14, is a structured set of activities to improve processes and pollutant controls that will prevent and reduce pollutant loadings.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 114 of 131 (q) Non

- 101(a)(2) use is any use unrelated to the protection and propagation of fish, shellfish, wildlife or recreation in or on the water.

4. Amend § 131.5 by:

a. Revising paragraphs (a)(1) and (a)(2); b. Revising paragraph (a)(3) and redesignating paragraph (a)(3) as (a)(6); c. Adding new paragraphs (a)(3) through (a)(5); d. Redesign at ing paragraphs (a)( 4 )through (a)(5) as (a)( 7 ) through (a)( 8 ); and c. Revising paragraph (b).

The revisions and additions read as follows:

§ 131.5 EPA authority.

(a) * * * (1) Whether the State has adopted designated water uses that are consistent with the requirements of the Clean Water Act;

(2) Whether the State has adopted criteria that protect the designated water uses based on sound scientific rationale consistent with § 131.11;*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 115 of 131 (3) Whether the State has adopted an antidegradation policy that is consistent with § 131.12, and whether any State adopted antidegradation implementation methods are consistent with § 131.12; (4) Whether any State adopted WQS variance is consistent with § 131.14; (5) Whether any State adopted provision authorizing the use of schedules of compliance for water quality

- based effluent limits in NPDES permits is consistent with § 131.15; ( 6 ) Whether the State has followed applicable legal procedures for revisi ng or adopting standards;

* * * * *

(b) If EPA determines that the State ’ s or Tribe ’ s water quality standards are consistent with the factors listed in paragraphs (a)(1) through (a)( 8 ) of this section, EPA approves the standards. EPA must disapprove the State ’ s or Tribe ’ s water quality standards and promulgate Federal standards under section 303(c)(4), and for Great Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or Tribal adopted standards are not consistent with the
f

actors listed in paragraphs (a)(1) through (a)( 8 ) of this section. EPA may also promulgate a new or revised standard when necessary to meet the requirements of the Act.

* * * * *
Subpart B

— Establishment of Water Quality Standards

5. Amend § 131.10 by :*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 116 of 131 a. R evi sing paragraph (g) introductory text and paragraphs (a), (j), and (k) to read as follows ; and b. Removing and reserving paragraph (e).

§ 131.10 Designation of uses.

(a) Each State must specify appropriate water uses to be achieved and protected. The classif ication of the waters of the State must take into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes i ncluding navigation. If adopting new or revised designated uses other than the uses specified in section 101(a)(2) of the Act , or removing designated uses, States must submit documentation justifying how their consideration of the use and value of water for those uses listed in this paragraph appropriately supports the State’s action. A use attainability analysis may be used to satisfy this requirement. In no case shall a State adopt waste transport or waste assimilation as a designated use for any waters of the United States.

* * * * * (e) [Removed and Reserved]

* * * * **** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 117 of 131 (g) States may designate a use, or remove a use that is not an existing use, if the State conducts a use attainability analysis as specified in § 131.10(j) that demonstrates attaining the use is not feasible because of one of the six factors in this paragraph. If a State adopts a new or revised water quality standard based on a required use attainability analysis, the State shall also adopt the highest attainable use , as defin ed in § 131 .3(m)

.

* * * * *

(j) A State must conduct a use attainability analysis as described in § 131.3(g), and § 131.10(g), whenever:

(1) The State designates for the first time, or has previously designated for a water body, uses that do not inclu de the uses specified in section 101(a)(2) of the Act, or

(2) The State wishes to remove a designated use that is specified in section 101(a)(2) of the Act, to remove a sub

- category of such a use, or to designate a sub

- category of such a use that requir es criteria less stringent than previously applicable.

(k) A State is not required to conduct a use attainability analysis whenever:

(1) The State designates for the first time, or has previously designated for a water body, uses that include the uses s pecified in section 101(a)(2) of the Act, or*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 118 of 131 (2) The State designates a sub

- category of a use specified in section 101(a)(2) of the Act that requires criteria at least as stringent as previously applicable, or

(3) The State wishes to remove or revise a designated use that is a non

- 101(a)(2) use. In this instance, as required by § 131.10(a), the State must submit documentation justifying how its consideration of the use and value of water for those uses listed in § 131.10(a) appropriately supports the Sta te’s action, which may be satisfied through a use attainability analysis.

6. Amend § 131.11 by revising paragraphs (a)(2) and (b) introductory text to read as follows:
§ 131.11 Criteria.

(a) * * *

(2) Toxic Pollutants

. States must review water quality data and information on discharges to identify specific water bodies where toxic pollutants may be adversely affecting water quality or the attainment of the designated water use or where the levels of toxic pollutants are at a level to warrant concern and must adopt criteria for such toxic pollutants applicable to the water body sufficient to protect the designated use. Where a State adopts narrative criteria for toxic pollutants to protect designated uses, the State must provide information identifying the met hod by which the State intends to regulate point source discharges of toxic pollutants on water quality limited segments based on such narrative criteria. Such information may be included as part of*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 119 of 131 the standards or may be included in documents generated b y the State in response to the Water Quality Planning and Management Regulations (40 CFR part 130).

(b) Form of criteria : In establishing criteria, States should:

* * * * *

7. Amend § 131.12 by revising the section heading and paragraphs (a) introductory t ext and (a)(2), and adding paragraphs (a)(2)(i), (a)(2)(ii), and (b) to read as follows:

§ 131.12 Antidegradation policy and implementation methods.

(a) The State shall develop and adopt a statewide antidegradation policy. The antidegradation policy shall, at a minimum, be consistent with the following:

* * * * *

(2) Where the quality of the waters exceeds levels necessary to support the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall be maintained and protected unless the State finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the State’s continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. In allowing such degradation or lower*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 120 of 131 water quality, the State shall a ssure water quality adequate to protect existing uses fully. Further, the State shall assure that there shall be achieved the highest statutory and regulatory requirements for all new and existing point sources and all cost

- effective and reasonable best

ma nagement practices for nonpoint source control.

(i) The State may identify waters for the protections described in (a)(2) of this section on a parameter

- by

- parameter basis or on a water body

- by

- water body basis. Where the State identifies waters for antid egradation protection on a water body

- by

- water body basis, the State shall provide an opportunity for public involvement in any decisions about whether the protections described in (a)(2) of this section will be afforded to a water body, and the factors

co nsidered when making those decisions. Further, the State shall not exclude a water body from the protections described in (a)(2) of this section solely because water quality does not exceed levels necessary to support all of the uses specified in section 1 01(a)(2) of the Act.

(ii) Before allowing any lowering of high water quality, pursuant to (a)(2) of this section, the State shall find, after an analysis of alternatives, that such a lowering is necessary to accommodate important economic or social develo pment in the area in which the waters are located. The analysis of alternatives shall evaluate a range of practicable alternatives that would prevent or lessen the degradation associated with the proposed activity. When the analysis of alternatives identif ies one or more practicable alternatives, the State shall only find that a lowering is necessary if one such alternative is selected for implementation.

* * * * **** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 121 of 131 (b) The State shall develop methods for implementing the antidegradation policy that are, at a minimum, consistent with the State’s policy and with paragraph (a) of this section. The State shall provide an opportunity for public involvement during the development and any subsequent revisions of the implementation methods, and shall make the met hods available to the public.

8. Add § 131.14 to subpart B to read as follows:

§ 131.14 Water quality standards variances.

States may adopt WQS variances , as defined in § 131.3(o). Such a WQS variance is subject to the provisions of this section and publ ic participation requirements at § 131.20(b). A WQS variance is a water quality standard subject to EPA review and approval or disapproval.

(a) Applicability :

(1) A WQS variance may be adopted for a permittee(s) or water body/waterbody segment(s) , but only applies to the permit t ee(s) or water body/waterbody segment ( s ) specified in the WQS variance

.

(2) Where a State adopts a WQS variance, the State must retain, in its standards, the underlying designated use and criteri on addressed by the WQS var iance, unless the State adopts and EPA approves a revision to the underlying designated use*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 122 of 131 and criteri on consistent with § 131.10 and § 131.11. All other applicable standards not specifically addressed by the WQS variance remain applicable.

(3) A WQS var iance, once adopted by the State and approved by EPA, shall be the applicable standard for purposes of the Act under 40 CFR 131.21( d )

- (e) , for the fol lowing limited purposes. A n approved WQS variance applies for the purposes of developing NPDES permit limits and requirements under 301(b)(1)(C) , where appropriate , consistent with paragraph (a)(1) of this section . States and other certifying entities may also use an approved WQS variance when issuing certifications under section 401 of the Act. (4) A Sta te may not adopt WQS variances if the designated use and criteri on addressed by the WQS variance can be achieved by implementing technology

based effluent limits required under sections 301(b) and 306 of the Act. (b) Requirements for Submission to EPA:

(1) A WQS variance must include:

(i) Identification of the pollutant(s) or water quality parameter(s), and the water body/waterbody segment(s) to which the WQS variance applies. Discharger(s)

- specific WQS variances must also identify the permittee(s) subject to th e WQS variance.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 123 of 131 (ii) The requirements that apply throughout the term of the WQS variance. The requirements shall represent the highest attainable condition of the water body or waterbody segment applicable throughout the term of the WQS variance based on the documentation required in (b)(2) of this section. The requirements shall not result in any lowering of the currently attained ambient water quality, unless a WQS variance is necessary for restoration activities, consistent with paragraph (b)(2)(i)(A)( 2 ) of this section. The State must specify the highest attainable condition of the water body or waterbody segment as a quantifiable expression that is one of the following:

(A) For discharger(s)

- specific WQS variances: ( 1 ) The highest attainable interim criterion, or ( 2 ) The interim effluent condition that reflects the greates t pollutant reduction achievable, or ( 3 ) If no additional feasible pollutant control technology can be identified, the interim criterion or interim effluent condition that reflects the greatest pollutant reduction achievable with the pollutant control technologies installed at the time the State adopts the WQS variance , and the adoption and implementation of a Pollutant Minimization Program.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 124 of 131 (B) For WQS variances applicable to a wat er body or waterbody segment: ( 1 ) The highest attainable interim use and interim criterion, or ( 2 ) If no additional feasible pollutant control technology can be identified, the interim use and interim criterion that reflects the greatest pollutant reductio n achievable with the pollutant control technologies installed at the time the State adopts the WQS variance , and the adoption and implementation of a Pollutant Minimization Program.

(iii) A statement providing that the requirements of the WQS variance a re either the highest attainable condition identified at the time of the adoption of the WQS variance, or the highest attainable condition later identified during any reevaluation consistent with (b)(1)(v) of this section, whichever is more stringent.

(iv ) The term of the WQS variance, expressed as an interval of time from the date of EPA approval or a specific date. The term of the WQS variance
must only be as long as necessary to achieve the highest attainable condition and consistent with the demonstration provided in paragraph (b)(2) of this section. The State may adopt a subsequent WQS variance consistent with this section.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 125 of 131 (v) For a WQS variance with a term greater than five years, a specified frequency to reevaluate the highest attainable condition using all existing and readily available information and a provision specifying how the State intends to obtain public input on the reevaluation. Such reevaluations must occur no less frequently than every five years after EPA approval of the WQ S variance and the results of such reevaluation must be submitted to EPA within 30 days of completion of the reevaluation.

(vi) A provision that the WQS variance will no longer be the applicable water quality standard for purposes of the Act if the State does not conduct a reevaluation consistent with the frequency specified in the WQS variance or the results are not submitted to EPA as required by (b)(1)(v) of this section.

(2) The supporting documentation must include:

(i) Documentation demonstrating the need for a WQS variance.

(A) For a WQS variance to a use specified in section 101(a)(2) of the Act or a sub

- category of such a use, the State must demonstrate that attaining the designated use and criterion is not feasible throughout the term of the WQS variance because:*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 126 of 131 ( 1 ) One of the factors listed in § 131.10(g) is met, or

( 2 ) Actions necessary to facilitate lake, wetland, or stream restoration through dam removal or other significant reconfiguration activities precl ude attainment of the designated use and criterion while the actions are being implemented.

(B) For a WQS variance to a non

- 101(a)(2) use, the State must submit documentation justifying how its consideration of the use and value of the water for those use s listed in § 131.10(a) appropriately supports the WQS variance and term

. A demonstration consistent with (b)(2)(i)(A) of this section may be used to satisfy this requirement

.

(ii) Documentation demonstrating that the term of the WQS variance is only

as long as necessary to achieve the highest attainable condition. Such documentation must justify the term of the WQS variance by describing the pollutant control activities to achieve the highest attainable condition , including those activities identified t hrough a Pollutant Minimization Program, which serve as milestones for the WQS variance.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 127 of 131 (iii) In addition to (i) and (ii) of this section, for a WQS variance that applies to a water body or waterbody segment:

(A) Identification and documentation of any cost

- effective and reasonable best management practices for nonpoint source controls related to the pollutant(s) or water quality parameter(s) and water body or waterbody segment(s) specified in the WQS variance that could be implemented to make progress t owards attaining the underlying designated use and criterion. A State must provide public notice and comment for any such documentation.

(B) Any subsequent WQS variance for a water body or waterbody segment must include documentation of whether and to what extent best management practices for nonpoint source controls were implemented to address the pollutant(s) or water quality parameter(s) subject to the WQS variance and the water quality progress achieved.

(c) Implementing WQS variances in NPDES permits: A WQS variance serves as the applicable water quality standard for implementing NPDES permitting requirements pursuant to § 122.44(d) for th e term of the WQS variance. Any limitations and requirements necessary to implement the WQS variance shall be included as enforceable conditions of the NPDES permit for the permittee(s) subject to the WQS variance.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 128 of 131 9. Add § 131.15 to subpart B to read as fo llows:

§ 131.15 Authorizing the use of schedules of compliance for water quality
- based effluent limits in NPDES permits.

If a State intends to authorize the use of schedules of compliance for water quality

- based effluent limits in NPDES permits, the Sta te must adopt a permit compliance schedule authorizing provision. Such authorizing provision is a water quality standard subject to EPA review and approval under section 303 of the Act and must be consistent with sections 502(17) and 301(b)(1)(C) of the Ac t.

Subpart C

— Procedures for Review and Revision of Water Quality Standards

10. Amend § 131.20 by revising paragraphs (a) and (b) to read as follows:

§ 131.20 State review and revision of water quality standards. (a) State Review

. The State shall from time to time, but at least once every 3 years, hold public hearings for the purpose of reviewing applicable water quality standards adopted pursuant
to §§ 131.10

– 131.15 and Federally promulgated water quality standards and, as appropri ate, modifying and adopting standards. The State shall also re

- examine any waterbody segment with water quality standards that do not include the uses specified in section 101(a)(2) of the Act every 3 years to determine if any new information has become av ailable. If such new information indicates that the uses specified in section 101(a)(2) of the Act are attainable, the State shall*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 129 of 131 revise its standards accordingly. Procedures States establish for identifying and reviewing water bodies for review should be incorporated into their Continuing Planning Process. In addition, if a State does not adopt new or revised criteria for parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations, then the State shall provide an expl anation when it submits the results of its triennial review to the Regional Administrator consistent with CWA section 303(c)(1) and the requirements of § 131.20(c).

(b) Public Participation

. The State shall hold one or more public hearings for the purpos e of reviewing water quality standards as well as when revising water quality standards, in accordance with provisions of State law and EPA’s public participation regulation (40 CFR part 25). The proposed water quality standards revision and supporting ana lyses shall be made available to the public prior to the hearing.

* * * * *

11. Amend § 131.22 by revising paragraph (b) to read as follows:

§ 131.22 EPA promulgation of water quality standards.

* * * * *

(b) T he Administrator may also propose and promulgate a regulation, applicable to one or

more navigable waters , setting forth a new or revised standard upon determining such a standard*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 130 of 131 is necessary to meet the requirements of the Act. To constitute an Administr ator’s determination that a new or revised standard is necessary to meet the requirements of the Act, such determination must:

(1) Be signed by the Administrator or his or her duly authorized delegate, and

(2) Contain a statement that the document consti tutes an Administrator’s determination under section 303(c)(4)(B) of the Act.

* * * * *
Subpart D

— Federally Promulgated Water Quality Standards

12. Amend § 131.34 by revising paragraph (c) to read as follows:

§ 131.34 Kansas.

* * * * *

(c) Water quality standard variances . The Regional Administrator, EPA Region 7, is authorized to grant variances from the water quality standards in paragraphs (a) and (b) of this section where the requirements of § 131.14 are met.*** E.O. 12866 Review

– Draft

– Do Not Cite, Quote, or Release During Review *** 

### Water Quality Standards Regulatory Revisions

Page 131 of 131 13. Amend § 131.40 by revising paragraph (c) to read as follows:

§ 131.40 Puerto Rico.

* * * * *

(c) Water quality standard variances

. The Regional Administrator, EPA Region 2, is authorized to grant variances from the water quality standards in paragraphs (a) and (b) of this section where the requirements of § 131.14 are met.