46030 Federal Register / Vol. 81, No. 136 / Friday, July 15, 2016 / Proposed Rules 

Dated: June 20, 2016. 

Meredith L. Austin, 

Admiral, U.S. Coast Guard, Commander, 

Fifth Coast Guard District. 

[FR Doc. 2016–16714 Filed 7–14–16; 8:45 am] 

BILLING CODE 9110–04–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2015–0392; FRL–9946–01– 

OW] 

RIN 2040–AF61 

Water Quality Standards; 

Establishment of Revised Numeric 

Criteria for Selenium for the San 

Francisco Bay and Delta, State of 

California 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) is proposing to revise the 

current federal Clean Water Act 

selenium water quality criteria 

applicable to the San Francisco Bay and 

Delta to ensure that the criteria are set 

at levels that protect aquatic life and 

aquatic-dependent wildlife, including 

federally listed threatened and 

endangered species. The San Francisco 

Bay and Delta ecosystem is at risk due 

to environmental degradation, including 

impacts from elevated levels of 

selenium, and state and federal actions 

are underway to restore the waterway. 

Scientific evidence indicates that 

elevated selenium levels can contribute 

to the decline of fish and aquaticdependent birds. EPA promulgated the 

San Francisco Bay and Delta’s existing 

selenium criteria in 1992 as part of the 

National Toxics Rule, using EPA’s 

recommended aquatic life criteria 

values at the time. However, the latest 

science on selenium fate and 

bioaccumulation indicates that the 

existing criteria are not protective of 

aquatic life and aquatic-dependent 

wildlife in the San Francisco Bay and 

Delta. Therefore, EPA is proposing to 

revise the existing selenium criteria, 

taking into account available science, 

legal requirements, and EPA policies 

and guidance. EPA’s proposal will 

address the Administrator’s 

determination—described in this 

preamble—that EPA’s previously 

promulgated water quality criteria are 

not adequate to protect the designated 

uses for these waters. 

DATES: Comments must be received on 

or before September 13, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2015–0392, at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. EPA will generally 

not consider comments or comment 

contents located outside of the primary 

submission (i.e. on the web, cloud, or 

other file sharing system). For 

additional submission methods, the full 

EPA public comment policy, 

information about CBI or multimedia 

submissions, and general guidance on 

making effective comments, please visit 

http://www2.epa.gov/dockets/

commenting-epa-dockets. 

Two public hearings will be held on 

Tuesday, August 23, 2016, one at 9:00 

a.m. and one at 2:00 p.m., at EPA Region 

9, 75 Hawthorne Street, San Francisco, 

CA 94105. Additionally, EPA will offer 

a virtual public hearing on the proposed 

rule via the internet on Monday 

evening, August 22, 2016 from 6:00 p.m. 

to 8:00 p.m. For details on these public 

hearings, as well as registration 

information, please visit: https://

epa.gov/wqs-tech/water-qualitystandards-establishment-revisednumeric-criteria-selenium-sanfrancisco-bay. 

FOR FURTHER INFORMATION CONTACT: 

Erica Fleisig, Office of Water, Standards 

and Health Protection Division (4305T), 

U.S. Environmental Protection Agency, 

1200 Pennsylvania Avenue NW., 

Washington, DC 20460; telephone 

number: (202) 566–1057; email address: 

Fleisig.Erica@EPA.gov; or Diane E. 

Fleck, P.E., Esq., Water Division (WTR– 

2–1), U.S. Environmental Protection 

Agency Region 9, 75 Hawthorne Street, 

San Francisco, CA 94105; telephone 

number: (415) 972–3527; email address: 

Fleck.Diane@EPA.gov. 

SUPPLEMENTARY INFORMATION: This 

proposed rule is organized as follows: 

I. General Information 

II. Background 

A. CWA and EPA Regulations 

B. National Toxics Rule 

C. California Toxics Rule 

D. State of California Actions 

E. Applicability of EPA Promulgated Water 

Quality Standards When Final 

F. Selenium Chemistry and Biology 

III. Rationale and Approach 

A. Necessity 

B. Administrator’s Determination of 

Necessity 

C. Approach 

D. Proposed Criteria 

IV. Implementation and Alternative 

Regulatory Approaches 

V. Endangered Species Act 

VI. Economic Analysis 

A. Identifying Affected Entities 

B. Method for Estimating Costs 

C. Results 

VII. Statutory and Executive Orders 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

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 

and Safety Risks) 

H. Executive Oder 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

I. National Technology Transfer and 

Advancement Act of 1995 

J. Executive Order 12898 (Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations) 

I. General Information 

Applicability: Entities such as 

industries, stormwater management 

districts, or publicly owned treatment 

works (POTWs) that directly or 

indirectly discharge selenium to the San 

Francisco Bay and Delta could be 

indirectly affected by this rulemaking 

because federal water quality standards 

(WQS) promulgated by EPA would be 

applicable to Clean Water Act (CWA) 

regulatory programs, such as National 

Pollutant Discharge Elimination System 

(NPDES) permitting. Citizens concerned 

with water quality in California could 

also be interested in this rulemaking. 

Categories and entities that could be 

affected include the following: 

Category Examples of potentially affected entities 

Industry ........................................... Industries discharging pollutants to the San Francisco Bay and Delta. 


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1The NTR is codified at 40 CFR 131.36. 

2The purpose of the 1995 amendment was, in 

general, to replace aquatic life total recoverable 

metals criteria with dissolved metals criteria to 

reflect a revised EPA policy that dissolved metals 

criteria better represent the biologically available 

fraction of water borne metals to aquatic organisms. 

Although selenium was included in the analysis for 

the revised policy, the 1995 amendment did not 

include a freshwater conversion factor for selenium, 

and thus, the aquatic life freshwater selenium 

criteria in the NTR remain in the total recoverable 

form. The EPA policy memorandum, Office of 

Water Policy and Technical Guidance on 

Interpretation and Implementation of Aquatic Life 

Metals Criteria, by Martha G. Prothro on October 1, 

1993, states that selenium is a ‘‘bioaccumulative 

chemical and [it is] not appropriate to adjust to 

percent dissolved’’ for freshwater selenium criteria 

(see policy memorandum, Attachment 2, page 5). 

Category Examples of potentially affected entities 

Municipalities ................................... Publicly owned treatment works or other facilities discharging pollutants to the San Francisco Bay and 

Delta. 

Stormwater Management Districts .. Entities responsible for managing stormwater runoff in the San Francisco Bay and Delta. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities that could 

be indirectly affected by this action. 

Any parties or entities who depend 

upon or contribute to the water quality 

of the San Francisco Bay and Delta 

could be affected by this proposed rule. 

To determine whether your facility or 

activities could be affected by this 

action, you should carefully examine 

this proposed rule. If you have 

questions regarding the applicability of 

this action to a particular entity, consult 

the person listed in the FOR FURTHER

INFORMATION CONTACT section. 

II. Background 

A. CWA and EPA Regulations 

CWA section 101(a)(2) (33 U.S.C. 

1251(a)(2)) establishes a national goal, 

wherever attainable, of ‘‘water quality 

which provides for the protection and 

propagation of fish, shellfish, and 

wildlife and provides for recreation in 

and on the water . . .’’ In this proposal, 

the relevant goals are the protection and 

propagation of fish, shellfish, and 

wildlife. 

CWA section 303(c) (33 U.S.C. 

1313(c)) directs states to adopt WQS for 

their waters subject to the CWA. CWA 

section 303(c)(2)(A) and EPA’s 

implementing regulations at 40 CFR part 

131 require, among other things, that a 

state’s WQS specify appropriate 

designated uses of the waters and water 

quality criteria that protect those uses. 

EPA’s regulations at 40 CFR 131.11(a)(1) 

provide that ‘‘[s]uch criteria must be 

based on sound scientific rationale and 

must contain sufficient parameters or 

constituents to protect the designated 

use.’’ For waters with multiple use 

designations, the criteria must support 

the most sensitive use (40 CFR 

131.11(a)(1)). In addition, 40 CFR 

131.10(b) provides that ‘‘[i]n designating 

uses of a water body and the appropriate 

criteria for those uses, the [s]tate shall 

take into consideration the water quality 

standards of downstream waters and 

shall ensure that its water quality 

standards provide for the attainment 

and maintenance of the water quality 

standards of downstream waters.’’ 

States are required to review 

applicable WQS at least once every 

three years and, if appropriate, revise or 

adopt new standards (CWA section 

303(c)(1)). Any new or revised WQS 

must be submitted to EPA for review 

and approval or disapproval (CWA 

section 303(c)(2)(A) and (c)(3)). Under 

CWA section 303(c)(4)(B), the 

Administrator is authorized to 

determine, even in the absence of a state 

submission, that a new or revised 

standard is needed to meet CWA 

requirements. 

Under CWA section 304(a), EPA 

periodically publishes criteria 

recommendations for states to consider 

when adopting water quality criteria for 

particular pollutants to meet the CWA 

section 101(a)(2) goals. In establishing 

numeric criteria, states should adopt 

water quality criteria based on EPA’s 

CWA section 304(a) criteria, section 

304(a) criteria modified to reflect sitespecific conditions, or other 

scientifically defensible methods (40 

CFR 131.11(b)(1)). CWA section 

303(c)(2)(B) requires states to adopt 

numeric criteria for all toxic pollutants 

listed pursuant to CWA section 

307(a)(1) for which EPA has published 

304(a) criteria, as necessary to support 

the states’ designated uses. 

B. National Toxics Rule 

On December 22, 1992, EPA 

promulgated Water Quality Standards; 

Establishment of Numeric Criteria for 

Priority Toxic Pollutants; States’ 

Compliance at 57 FR 60848 (hereafter 

referred to as the National Toxics Rule 

or NTR).1 The NTR established 

chemical-specific numeric criteria for 

priority toxic pollutants for states that 

EPA had determined were not in 

compliance with the requirements of 

CWA section 303(c)(2)(B). The NTR 

included selenium water quality criteria 

for the protection of aquatic life in the 

San Francisco Bay and Delta. On May 4, 

1995, EPA issued a stay of the criteria 

for metals in the NTR and immediately 

promulgated revised criteria for metals 

in the NTR in the Stay of Federal Water 

Quality Criteria for Metals at 60 FR 

22227 and Water Quality Standards; 

Establishment of Numeric Criteria for 

Priority Toxic Pollutants; States’ 

Compliance—Revision of Metals 

Criteria, at 60 FR 22229.2 The 1995 Stay 

and Revision did not change the 

selenium water quality criteria for the 

San Francisco Bay and Delta. These 

criteria are currently applicable in the 

Bay and Delta, and consist of a chronic 

criterion of 5 micrograms per liter (mg/ 

L), and an acute criterion of 20 mg/L. 

Both criteria are expressed in the total 

recoverable form of selenium. 

The currently applicable selenium 

criteria for the protection of aquatic life 

in the San Francisco Bay and Delta were 

based on EPA’s CWA section 304(a) 

recommended criteria values at the time 

that EPA promulgated the criteria in the 

NTR. These recommendations are 

documented in EPA’s Ambient Water 

Quality Criteria for Selenium—1987, 

Office of Water, EPA–440/5–87–008, 

September, 1987. 

EPA derived the 1987 freshwater 

aquatic life recommended criteria 

values for selenium from observed 

impacts on fish populations at a 

contaminated lake, Belews Lake, in 

North Carolina. The lake, a cooling 

water reservoir, had been affected by 

selenium loads from a coal-fired power 

plant. Since aquatic life was exposed to 

selenium from both the water column 

and diet, the criteria reflect both types 

of exposure in Belews Lake. EPA 

derived the 1987 saltwater aquatic life 

recommended criteria values for 

selenium using data from lab studies. 

EPA calculated the criteria in 

accordance with EPA’s Guidelines for 

Deriving Numerical National Water 

Quality Criteria for the Protection of 

Aquatic Organisms and Their Uses, 

Office of Research and Development, 

1985. The 1987 recommended 

freshwater criteria values for total 

recoverable selenium are 5 mg/L 

(chronic) and 20 mg/L (acute), and the 

saltwater criteria values for total 

recoverable selenium are 71 mg/L 

(chronic) and 300 mg/L (acute). 

In the NTR, EPA promulgated 

selenium criteria for the San Francisco 


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3The CTR is codified at 40 CFR 131.38. 

4The CTR Criteria Table at 40 CFR 131.38(b)(1) 

includes all water quality criteria previously 

promulgated in the NTR, so that readers can find 

all federally promulgated water quality criteria for 

California in one place. All criteria previously 

promulgated in the NTR are footnoted as such in 

the CTR. 

5The model developed by Theresa Presser and 

Sam Luoma is the selenium ecosystem 

bioaccumulation model first presented in 

Forecasting Selenium Discharges to the San 

Francisco Bay-Delta Estuary: Ecological Effects of a 

Proposed San Luis Drain Extension, Open File 

Report 00–416, Samuel N. Luoma and Theresa S. 

Presser, 2000, U.S. Geological Survey, Menlo Park, 

California. This report was revised and superseded 

in 2006 by Professional Paper 1646, Theresa S. 

Presser and Samuel N. Luoma, U.S. Geological 

Survey, Reston, Virginia. A detailed explanation of 

the model is contained in A Methodology for 

Ecosystem-Scale Modeling of Selenium, T.S. Presser 

and S.N. Luoma, 2010, Integrated Environmental 

Assessment and Management, Volume 6, Number 4. 

6Our Children’s Earth Foundation and Ecological 

Rights Foundation v. U.S. Environmental Protection 

Agency, et al., 13–cv–2857 (N.D. Cal, August 22, 

2014). 

Bay and Delta based on the 1987 

freshwater recommended criteria values 

for selenium, even though the San 

Francisco Bay and Delta are marine and 

estuarine waters. EPA used the more 

stringent freshwater values because of a 

concern that the saltwater criteria were 

not sufficiently protective ‘‘based on 

substantial evidence that there are high 

levels of selenium bioaccumulation in 

San Francisco Bay and the saltwater 

criteria fail to account for food chain 

effects’’ and ‘‘utilization of the saltwater 

criteria for selenium in the San 

Francisco Bay/Delta would be 

inappropriate.’’ (57 FR 60898). 

Since then, EPA has taken steps to 

revise the 1987 CWA 304(a) 

recommended criteria for selenium to 

better account for bioaccumulation 

through the food chain in different 

ecosystems. EPA recently published a 

revised CWA 304(a) freshwater 

recommended criterion for selenium: 

Final Aquatic Life Ambient Water 

Quality Criterion for Selenium— 

Freshwater 2016, US EPA, Office of 

Water, EPA 822–R–16–006, June, 2016. 

EPA considered the methodology and 

information used to derive the revised 

CWA 304(a) recommended selenium 

criterion, along with additional 

information specific to the San 

Francisco Bay and Delta, in developing 

the revised selenium criteria values for 

the San Francisco Bay and Delta in this 

proposed rule. 

C. California Toxics Rule 

On May 18, 2000, EPA promulgated 

Water Quality Standards; Establishment 

of Numeric Criteria for Priority Toxic 

Pollutants for the State of California at 

65 FR 31681 (hereafter referred to as the 

California Toxics Rule or CTR).3 The 

CTR established numeric water quality 

criteria for priority toxic pollutants for 

inland surface waters and enclosed bays 

and estuaries within California. EPA 

promulgated the CTR after California 

rescinded its water quality control plans 

containing pollutant objectives 

(criteria). The criteria that EPA 

previously promulgated for California in 

the NTR,4 together with the criteria 

promulgated in the CTR and California’s 

designated uses and anti-degradation 

provisions, set water quality standards 

for priority toxic pollutants for inland 

surface waters and enclosed bays and 

estuaries in California. 

As required by section 7 of the 

Endangered Species Act (ESA) (16 

U.S.C. 1531 et seq.), EPA consulted with 

the U.S. Fish and Wildlife Service 

(FWS) and the U.S. National Marine 

Fisheries Service (NMFS) (collectively, 

the Services) concerning EPA’s 

rulemaking actions for California. EPA 

initiated consultation in 1994, and in 

March 2000, the Services issued a final 

Joint Biological Opinion. The final Joint 

Biological Opinion requested that EPA 

revise its 1987 recommended criteria 

values for selenium to ensure the 

protection of species listed as 

threatened or endangered, and later 

update the criteria for California 

consistent with the revised 

recommendations. In response, EPA 

reserved the acute freshwater selenium 

criterion from the final May 2000 CTR. 

In September 2002, EPA, the Services, 

the U.S. Geological Survey (USGS), and 

the State of California met to discuss the 

development of revised selenium water 

quality criteria and recommended that 

California-specific selenium water 

quality criteria be developed as wildlife 

criteria. The agencies agreed that criteria 

should first be developed to protect 

aquatic life and aquatic-dependent 

wildlife using the Luoma-Presser 

(USGS) bioaccumulation model 5 for the 

San Francisco Bay and Delta based on 

the necessity for more stringent criteria 

in the estuary, and to subsequently 

develop criteria for the rest of California 

using appropriate methods. 

Starting in 2003, EPA and the 

Services provided assistance to the 

USGS to model selenium fate and 

biological uptake in the San Francisco 

Bay and Delta using the USGS 

bioaccumulation model. USGS 

completed its report, entitled 

Ecosystem-Scale Selenium Modeling in 

Support of Fish and Wildlife Criteria 

Development for the San Francisco BayDelta Estuary, California, 

Administrative Report (the USGS 

Report), and submitted it to EPA in 

December 2010. USGS used site-specific 

data from various sources and speciesspecific data from the FWS. EPA 

analyzed the USGS Report and data 

from the FWS and other relevant reports 

to develop the selenium criteria for the 

San Francisco Bay and Delta in this 

proposed rule. 

In 2013, two organizations filed a 

legal complaint against EPA, based in 

part on the fact that work on updating 

the reserved acute freshwater selenium 

criterion from the 2000 CTR had not yet 

been completed while EPA had 

previously determined, in the proposed 

CTR, that the criterion was among those 

necessary to implement section 

303(c)(2)(B) of the CWA (62 FR 42160, 

August 5, 1997). EPA ultimately 

consented to a court-ordered resolution 

of these claims.6 Under the terms of the 

court order, EPA committed to 

developing updated selenium criteria 

for the California waters covered by the 

original CTR. However, this proposed 

rule relates to a different set of selenium 

criteria: Those selenium criteria that 

EPA previously proposed and finalized 

for the San Francisco Bay and Delta in 

the NTR. Since EPA has chosen to 

prioritize the development of this latter 

set of selenium criteria, EPA expects to 

defer proposing the remaining selenium 

criteria for the rest of California until no 

later than November 30, 2018, pursuant 

to the terms of the court-ordered 

resolution. 

D. State of California Actions 

The State of California has nine 

Regional Water Quality Control Boards 

(Regional Boards), each located in and 

overseeing different areas of the state. 

The State Water Resources Control 

Board (SWRCB) in Sacramento oversees 

the actions of the nine Regional Boards 

and periodically establishes policy and 

standards for consistency across the 

Regional Boards. The San Francisco Bay 

Regional Water Quality Control Board 

(SFRWQCB) and the Central Valley 

Regional Water Quality Control Board 

(CVRWQCB) oversee different parts of 

the Bay and Delta. The SFRWQCB 

oversees all parts of the San Francisco 

Bay including the South San Francisco 

Bay, Lower San Francisco Bay, Central 

San Francisco Bay, San Pablo Bay, 

Carquinez Strait and Suisun Bay, and a 

small portion of the western side of 

Sacramento-San Joaquin Delta. The 

CVRWQCB oversees the remaining areas 

of the Delta which include the 

confluences of the Sacramento and the 

San Joaquin Rivers. Each Regional 

Board has a regional water quality 


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control plan (Basin Plan) that sets forth 

the beneficial (designated) uses for the 

waterbodies it oversees. Once EPA 

finalizes the proposed criteria, each 

Regional Board will implement the 

criteria in its WQS programs for the 

waters it oversees. 

In 1978, the SWRCB adopted a 

comprehensive plan for the Bay and 

Delta estuary: The Water Quality 

Control Plan for the San Francisco Bay/ 

Sacramento-San Joaquin Delta Estuary. 

The plan was amended in 1991, 1995 

and most recently in December 2006. 

This plan supplements the two regional 

Basin Plans that cover the estuary and 

establishes a comprehensive set of 

designated uses for all parts of the Bay 

and Delta. The plan describes the uses 

as existing uses. 

The site-specific selenium criteria in 

this proposed rule are intended to 

protect aquatic life and aquaticdependent wildlife, including federally 

listed threatened and endangered 

species, in the San Francisco Bay and 

Delta. The designated uses in the 

SWRCB water quality control plan for 

the protection of aquatic life and 

aquatic-dependent wildlife are listed in 

Table 1. The proposed criteria will 

establish levels of selenium that protect 

California’s designated uses for the 

estuary. 

TABLE 1—EXISTING DESIGNATED USES FOR THE SAN FRANCISCO BAY AND DELTA

Use Abbreviation Definition 

Warm Freshwater Habitat ......... WARM Uses of water that support warm water ecosystems including, but not limited to, preservation of 

aquatic habitats, vegetation, fish, or wildlife, including invertebrates. 

Cold Freshwater Habitat ........... COLD Uses of water that support cold water ecosystems including, but not limited to, preservation or 

enhancements of aquatic habitats, vegetation, fish, or wildlife, including invertebrates. 

Migration of Aquatic Organisms MIGR Uses of water that support habitats necessary for the migration or other temporary activities by 

aquatic organisms, such as anadromous fish. 

Spawning, Reproduction, and/or 

Early Development.

SPWN Uses of water that support high quality aquatic habitats suitable for reproduction and early development of fish. 

Estuarine Habitat ....................... EST Uses of water that support estuarine ecosystems including, but not limited to, preservation or 

enhancement of estuarine habitats, vegetation, fish, shellfish, or wildlife (e.g., estuarine 

mammals, waterfowl, shorebirds). 

Wildlife Habitat .......................... WILD Uses of water that support estuarine ecosystems including, but not limited to, preservation and 

enhancement of terrestrial habitats, vegetation, wildlife (e.g., mammals, birds, reptiles, amphibians, invertebrates), or wildlife water and food sources. 

Rare, Threatened, or Endangered Species.RARE Uses of water that support habitats necessary, at least in part, for the survival and successful 

maintenance of plant or animal species established under State or federal law as being rare, 

threatened, or endangered. 

The proposed criteria are being set at 

levels that will protect aquatic life and 

aquatic-dependent wildlife consistent 

with WARM, COLD, EST, WILD and 

RARE uses, as well as protect aquatic 

life consistent with MIGR and SPWN 

uses. 

E. Applicability of EPA Promgulated 

Water Quality Standards When Final 

Under the CWA, Congress gave states 

primary responsibility for developing 

and adopting WQS for their waters 

(CWA section 303(a)–(c)). Although EPA 

is proposing selenium criteria for the 

protection of aquatic life and aquaticdependent wildlife for marine and 

estuarine waters in California’s San 

Francisco Bay and Delta, California 

continues to have the option to adopt 

and submit to EPA protective selenium 

criteria for these waters consistent with 

CWA section 303(c) and EPA’s 

implementing regulations at 40 CFR part 

131. EPA encourages California to 

expeditiously adopt protective criteria. 

Consistent with CWA section 303(c)(4), 

if California adopts and submits 

selenium criteria for the protection of 

aquatic life and aquatic-dependent 

wildlife, and EPA approves such criteria 

before finalizing this proposed rule, 

EPA would not proceed with the 

promulgation for those waters for which 

EPA approves California’s criteria. 

If EPA finalizes this proposed rule 

and California subsequently adopts and 

submits selenium criteria for the 

protection of aquatic and aquaticdependent wildlife for marine and 

estuarine waters in the estuary, EPA 

proposes that once EPA approves 

California’s WQS, the EPA-approved 

criteria in California’s WQS would 

become the applicable criteria for CWA 

purposes and EPA’s promulgated 

criteria would no longer be applicable 

criteria. EPA would undertake a 

rulemaking to withdraw the federal 

criteria for selenium, but that process 

would not delay California’s approved 

criteria from becoming the sole 

applicable criteria for CWA purposes. 

EPA solicits comment on this approach. 

F. Selenium Chemistry and Biology 

Selenium is an element that occurs 

naturally in sediments of marine origin 

and enters the aquatic environment 

when rainwater comes into contact with 

deposits. Selenium can be further 

mobilized through anthropogenic 

activities such as agriculture irrigation, 

mining and petroleum refining. Once 

inorganic selenium is converted into a 

bioavailable form, it enters the food 

chain and can bioaccumulate. 

Depending on environmental 

conditions, one or another form of 

selenium such as selenate, selenite and 

organo-selenium, which differ in 

transformation rates and bioavailability, 

may predominate in the aquatic 

environment. 

Selenium is an essential micronutrient, but the range between essential 

and toxic levels is narrow. A longstanding hypothesis is that toxicity 

occurs through biochemical pathways 

where excess selenium substitutes for 

sulphur in proteins, which alters their 

structure and function. More recent 

studies indicate that selenium may 

affect organisms through oxidative 

stress (see Final Aquatic Life Ambient 

Water Quality Criteria for Selenium— 

Freshwater 2016, U.S. EPA, Office of 

Water, EPA 822–R–16–006, June, 2016). 

Elevated selenium levels in fish and 

other wildlife inhibit normal growth 

and reduce reproductive success 

through effects that lower embryo 

survival, most notably teratogenesis. 

Scientific studies indicate that 

selenium toxicity to aquatic life and 

aquatic-dependent wildlife is driven by 

diet (i.e., the consumption of seleniumcontaminated prey food) rather than by 

direct exposure in the water column. 

Selenium can accumulate in the aquatic 

food web through various routes and at 


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46034 Federal Register / Vol. 81, No. 136 / Friday, July 15, 2016 / Proposed Rules 

7Water Quality Survey for Selenium in the 

Sacramento River and its Major Tributaries, 

California Regional Water Quality Control Board, 

Central Valley Region, 1988, Sacramento, 

California. 

various rates. At the bottom of the food 

chain, bacteria and algae can 

bioaccumulate selenium to levels that 

greatly exceed water column 

concentrations, and some invertebrates 

such as filter-feeding clams, can 

efficiently accumulate selenium from 

suspended organic and inorganic 

particles. In the San Francisco Bay and 

Delta, clam-based food webs accumulate 

selenium at a much higher rate than 

insect-based food webs, and the 

invasive clam species, Potamocorbula 

amurensis, now found throughout the 

estuary, can accumulate selenium at a 

much higher rate than supplanted clam 

species. Therefore, species that feed on 

this clam in the estuary, such as diving 

birds and sturgeon, are exposed to 

higher levels of bioaccumulated 

selenium than species that feed mainly 

on insects or higher-order species 

within an insect-based food chain. The 

vulnerability of a species to selenium 

toxicity is determined by a number of 

factors in addition to the amount of 

contaminated prey food consumed. A 

species’ sensitivity to selenium, its 

population status, and the duration, 

timing and life stage of exposure are all 

factors to consider. In addition, the 

hydrologic conditions and water 

chemistry of a water body affect 

bioaccumulation; in general, slowmoving, calm waters or lentic waters 

enhance the production of bioavailable 

forms of selenium (selenite), while 

faster-moving waters or lotic waters 

limit selenium uptake given the rapid 

movement and predominant form of 

selenium (selenate). EPA considered 

these and other factors in determining 

the proposed selenium criteria for the 

estuary. 

III. Rationale and Approach 

A. Necessity 

Ecological Health of the Estuary: The 

San Francisco Bay and Delta is the 

largest estuary on the West Coast of 

North America and, as part of the 

Pacific Flyway, serves as an important 

migratory stopover and wintering area 

for a variety of waterfowl. The estuary 

is formed by the intersection of two 

large river systems, the Sacramento and 

San Joaquin Rivers, which drain 

approximately 40 percent of California. 

The estuary is comprised of a series of 

large and small bays, marshes, and 

channels leading to the Pacific Ocean 

through the Golden Gate. The system is 

critical to California’s ecological and 

economic well-being, and has long been 

the subject of competing interests. The 

estuary is the hub of California’s water 

distribution system, providing drinking 

water to 25 million people, supplying 

irrigation for 4 million acres of 

farmland, and supporting over 750 

different species of plants and animals. 

The estuary contributes to the area’s 

economically important recreational 

and commercial fishing and boating 

industries. However, as a result of these 

competing demands and associated 

stresses, the ecosystem has suffered 

greatly and water quality in the estuary 

is impaired, habitat is shrinking, 

important fish populations are at an alltime low, and several species are listed 

as threatened or endangered. In recent 

years, pelagic (open water) species have 

declined, with some fish populations in 

serious, critical condition. This sudden 

collapse in pelagic species, referred to 

as the pelagic organism decline (or 

POD), has been intensively studied, but 

no one factor has been identified as the 

cause. Many factors are thought to be 

responsible for the decline of the 

estuary’s health including water 

pollution, invasive species, water 

diversion and water project operations, 

ocean conditions (limited food and 

adverse temperatures), and habitat 

destruction and degradation. For a more 

detailed discussion, see Unabridged 

Advanced Notice of Proposed 

Rulemaking for Water Quality 

Challenges in the San Francisco Bay/

Sacramento-San Joaquin Delta Estuary, 

U.S. EPA, February 2011; 76 FR 9709, 

February 22, 2011. 

Plan for Restoration: In 2009, the 

Federal Bay Delta Leadership 

Committee, a Cabinet-level, multiagency committee charged with 

coordinating federal responses to Bay 

and Delta issues, issued its Interim 

Federal Action Plan, which outlined the 

federal government’s proposal to 

address water resource management 

issues in the estuary. The Interim 

Federal Action Plan included an action 

for EPA to ‘‘address the effectiveness of 

current regulatory mechanisms designed 

to protect water quality in the Delta and 

its tributaries, including standards for 

toxics, nutrients, and estuarine habitat 

protection.’’ In response, after extensive 

public comment, EPA published Water 

Quality Challenges in the San Francisco 

Bay/Sacramento-San Joaquin Delta 

Estuary: EPA’s Action Plan (the Action 

Plan) in August 2012. In the Action 

Plan, EPA concluded that existing 

programs under the CWA were not 

adequately safeguarding resources, and 

recommended seven priority activities 

to advance the protection and 

restoration of aquatic resources and 

ensure a reliable water supply in the 

watershed. The priority activities are: 1. 

Strengthen estuarine habitat protection 

standards; 2. Advance regional water 

quality monitoring and assessment; 3. 

Accelerate water quality restoration 

through Total Maximum Daily Loads 

(TMDLs); 4. Strengthen selenium water 

quality criteria; 5. Prevent pesticide 

pollution; 6. Restore aquatic habitats 

while managing methylmercury; and 7. 

Support the Bay Delta Conservation 

Plan (now called the California 

WaterFix). This proposed rule is 

intended to advance priority activity 

number four, Strengthen selenium water 

quality criteria. 

Sources of Selenium: Sources of 

selenium in the estuary include the 

tributaries flowing into the Delta and 

Bay, municipal and industrial 

wastewater discharges, stormwater 

discharges, atmospheric deposition, and 

in-bay sediments. The largest 

contributors are the Sacramento and San 

Joaquin Rivers and the five oil refineries 

located along the Bay. 

The headwaters of both rivers 

originate from snowmelt in the Sierra 

Nevada. The Sacramento River flows 

north to south into the Delta, and drains 

the northern portion of the Central 

Valley. The San Joaquin River flows east 

to west, then turns and flows south to 

north into the Delta, and drains the 

southern and central portions of the 

Central Valley, which are used 

extensively for farming. The two rivers 

meet in the Delta near Antioch and flow 

west into the northern reaches of the 

Bay, then southwest to the Pacific 

Ocean. 

Selenium concentrations in the San 

Joaquin River are elevated from 

selenium enriched soils on the west side 

of the Central Valley. Agricultural 

irrigation practices mobilize naturally 

occurring selenium in the heavy soils 

derived from marine shale and 

sediment. Selenium concentrations in 

the Sacramento River are much lower 

than in the San Joaquin River and are 

generally at natural background levels.7

Flow volumes from each river vary 

depending on the water year type and 

season, and for the San Joaquin River, 

the volume of diversions. Therefore, 

selenium loads from the rivers vary, 

while loads from the refineries are more 

constant. 

The San Joaquin watershed is much 

drier than the Sacramento watershed, 

and flows to the Bay from the San 

Joaquin River are significantly smaller 

than those from the Sacramento River. 

In addition, dams for hydropower and 

flood control further limit flows from 

the San Joaquin. Flow volume from the 


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8USGS National Water Information System, 

Surface-Water Annual Statistics for California at: 

http://waterdata.usgs.gov/ca/nwis/nwis (search 

terms: Surface Water; Annual Flow Data (Stream); 

Sacramento County at Freeport, USGS 11447650, 

and San Joaquin County at Vernalis, USGS 

11303500, 2002–2012, compare discharge in cubic 

feet per second based on daily-mean data for water 

years 2002–2011). 

9Ecosystem-Scale Selenium Modeling in Support 

of Fish and Wildlife Criteria Development for the 

San Francisco Bay-Delta Estuary, California, 

Theresa S. Presser and Samuel N. Luoma, U.S. 

Geological Survey, 2010, Menlo, Park, California; 

and using data from: (1) Selenium Biogeochemistry 

in the San Francisco Estuary: Changes in Water 

Column Behavior, G.A. Cutter and L.S. Cutter, 2004, 

Estuarine, Coastal, and Shelf Science, 61:3 pp 463– 

476; (2) Sources and Biogeochemical Cycling of 

Particulate Selenium in the San Francisco Bay 

Estuary, M.A. Doblin, S.B. Baines, L.S. Cutter, and 

G.A. Cutter, 2006, Estuarine, Coastal, and Shelf 

Science, 76:4 pp. 681–694; and (3) Transport, 

Transformation, and Effects of Selenium and 

Carbon in the Delta of the Sacramento-San Joaquin 

Rivers: Implications for Ecosystem Restoration, L. 

Lucas and A.R. Stewart, 2007, CALFED Ecosystem 

Restoration Program, Agreement No. 4600001955, 

Project No. ERP–01–C07. 

10North San Francisco Bay Selenium 

Characterization Study, Final Report (Appendix B 

Data Tables), Tetra Tech, Inc. on behalf of Western 

States Petroleum Association, 2012, Lafayette, 

California. 

11 Grassland Bypass Project Annual Report 2010– 

2011, San Francisco Estuary Institute for the 

Grassland Bypass Project Oversight Committee, 

2013, Chapter 1 (Table 7) by Michael C.S. Eacock 

and Stacy Brown, U.S. Bureau of Reclamation, 

Fresno, California. 

12The Exotics Guide: Non-native Marine Species 

of the North American Pacific Coast, 2011, Andrew 

N. Cohen, Center for Research on Aquatic 

Bioinvasions, Richmond, California, and San 

Francisco Estuary Institute, Oakland, California. 

http://www.exoticsguide.org. 

13 Food Web Pathway Determines How Selenium 

Affects Ecosystems: A San Francisco Bay Case 

Study, 2004, A. Robin Stewart, Samuel N. Luoma, 

Christian E. Schlekat, and Kathryn A. Hieb, 

Environmental Science and Technology, 38:4519– 

4526. 

San Joaquin into the Delta as measured 

at Vernalis between 2002 and 2011 has 

ranged from approximately 8 to 30 

percent of the flow volume from the 

Sacramento River at Freeport during the 

same time period.8 At Clifton Court 

Forebay in the San Joaquin Delta below 

Vernalis, the State Water Project pumps 

water from the Delta to the California 

Aqueduct for delivery to Southern 

California, and the Central Valley 

Project pumps water to the Delta 

Mendota Canal for delivery to Central 

Valley farmers. As a result of these 

diversions, even less flow from the San 

Joaquin enters the northern part of the 

Bay. 

Although flows from the San Joaquin 

are much smaller than flows from the 

Sacramento, selenium concentrations 

have been significantly higher than 

concentrations in the Sacramento. In 

1998 and 1999, concentrations of 

dissolved selenium in the San Joaquin 

River averaged 0.71 mg/L, and ranged 

from 0.40 to 1.07 mg/L at Vernalis.9

Concentrations in the San Joaquin have 

declined recently, but continue to be 

higher than levels in the Sacramento 

River. Recent data from 2010–2012 

show that dissolved selenium 

concentrations range from 0.207 to 0.47 

mg/L in the San Joaquin.10

Concentrations in the Sacramento have 

not materially changed during this time 

period. In 1998 and 1999, 

concentrations of dissolved selenium 

averaged 0.07 mg/L, and ranged from 

0.05 to 0.11 mg/L at Freeport.9 More 

recent data from 2010–2012 show levels 

between 0.062 and 0.09 mg/L.10

Concentrations of dissolved selenium 

in the Delta and in the northern and 

central portions of the Bay from 1998– 

1999 ranged from 0.070 to 0.320 mg/L.9

Recent data from 2010–2012 show that 

concentrations have decreased, and 

range from 0.058 to 0.13 mg/L.10

Agriculture: Selenium concentrations 

in the San Joaquin River and the estuary 

are decreasing, in part, as a result of 

conservation actions from the 

agricultural industry and California’s 

implementation of three selenium 

TMDLs in the Central Valley. TMDLs for 

a portion of the San Joaquin River, the 

Grassland Marshes, and Salt Slough (a 

tributary) are being implemented 

through Waste Discharge Requirements 

(WDRs) (permits) and the Grassland 

Bypass Project to reduce and reroute 

discharges of agricultural return flows 

from the west side of the watershed 

around sensitive wetlands. 

Between 1986 and 1996, before 

construction of the Grassland Bypass 

Project and implementation of the 

TMDLs, selenium loads in the San 

Joaquin at Patterson and Crows Landing 

below the confluence of the Merced 

River averaged 8,129 pounds per year 

(lbs/year). Since 2000, selenium loads 

have ranged from 1,526–6,353 lbs/year, 

with the lowest loads in recent years.11

Between the mid-1990s and the mid2000s, selenium loading to surface 

waters decreased by approximately onehalf to two-thirds through agricultural 

water conservation measures such as 

harvesting crops that require less water, 

drip irrigation, water recycling and 

reuse on salt-tolerant crops, and land 

retirement. Although the final WDR 

loading targets have not been met, the 

agriculture industry has helped reduce 

selenium loads in the watershed. Final 

targets are scheduled to be achieved by 

2019. 

Refineries: Another source of 

selenium to the estuary is wastewater 

from the processing of selenium-rich 

crude oil, from the five major oil 

refineries located along the Bay. The 

recent decreases in selenium 

concentrations in the Bay are also the 

result of the refineries reducing 

selenium loads in wastewater 

discharges in response to California’s 

implementation of more stringent 

NPDES permit limits. Selenium levels 

in crude vary, and the crude from the 

San Joaquin Basin can contain 

significantly higher levels than other 

sources of crude. Available data indicate 

that from 1986 through 1992, the 

cumulative selenium load to the Bay 

from the refineries averaged 

approximately 5,000 lbs/year, and 

ranged from 3,953 to 5,783 lbs/year.9 In 

1991, California required the refineries 

to reduce their mass discharge of 

selenium and achieve more stringent 

wastewater concentration limits. The 

refineries achieved their mass-based 

limits and revised concentration limits 

by 1998. The average cumulative 

selenium load for all refineries since 

1999 has been approximately 1,200 lbs/ 

year, down approximately 75% from 

early 1990 levels.9 Activities undertaken 

by both the agriculture industry and the 

refineries have helped to reduce 

selenium loads to the Bay. 

Invasive Clam Species: In the fall of 

1986, after major flooding in the spring 

had wiped out large parts of the existing 

benthic community, a small bivalve was 

discovered in the northern reaches of 

San Francisco Bay.12 Its population 

rapidly increased and spread 

throughout the estuary. The species, 

Potamocorbula amurensis (P. 

amurensis), commonly known as 

Corbula, is native to China, Japan, and 

Korea, and is thought to have been 

introduced to the estuary from ballast 

water. Adults tolerate a wide range of 

salinity (1 to 32 parts per thousand), and 

although Corbula flourish in subtidal 

waters, they can also live in intertidal 

mudflats.12 The species is remarkably 

efficient in accumulating selenium from 

its environment 13 and is responsible for 

the accelerated bioaccumulation of 

selenium in the food chain of the fish 

and bird species in the Bay and Delta 

ecosystem. The species most at risk in 

the estuary from the Corbula invasion 

are believed to be clam-eating fish and 

bird species such as green and white 

sturgeon, scoter and scaup. 

Need for Revised Criteria: EPA now 

has updated scientific information on 

selenium fate and bioaccumulation, as 

well as updated information on the Bay 

and Delta estuary ecosystem that was 

not available when EPA developed the 

existing Bay and Delta selenium criteria 

in the NTR. These data indicate the 

need for revised criteria. The explosion 


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14 Final Aquatic Life Ambient Water Quality 

Criterion for Selenium—Freshwater 2016, EPA 822– 

R–16–006, US EPA, Office of Water, 2016, 

Washington, DC. 

15EPA Action on the Gilbert Bay Selenium 

Criterion and Footnote (14), and Enclosure, US EPA 

Region 8, 2011, Denver, Colorado. 

of the Corbula population in the early 

1990s has drastically changed the food 

web and selenium bioaccumulation 

dynamics in the Bay and Delta. The 

Ecosystem-Scale Selenium Model for 

the San Francisco estuary allows EPA to 

develop revised selenium criteria that 

account for site-specific and speciesspecific characteristics, including 

species with greater exposure and/or 

susceptibility to selenium. In doing so, 

EPA is following the requirements at 40 

CFR 131.11(a)(1) to derive criteria that 

are based on a sound scientific rationale 

and protect the most sensitive uses, 

which in the case of the Bay and Delta 

include migration of aquatic organisms 

(e.g., anadromous fish species), and 

habitat for rare, threatened and 

endangered species. 

Although conditions have improved 

from reduced agriculture and refinery 

loads, ambient levels of selenium are 

not consistently below harmful levels in 

all parts of the estuary. Revised criteria 

are necessary to help ensure that 

protective levels are attained in all parts 

of the water body and are maintained in 

the future to protect designated uses. 

Several indigenous species are listed 

under the ESA as threatened or 

endangered, including green sturgeon, 

Chinook salmon, steelhead trout, delta 

smelt and the California Ridgway’s rail, 

and many migratory bird species use the 

estuary as a wintering ground, including 

greater and lesser scaup, and whitewinged, surf, and black scoter. The 

analyses to develop the fish tissue and 

the avian egg tissue benchmarks used in 

the modeling, and the modeling results 

used to derive the proposed water 

column criteria, indicate the health of 

these species would be negatively 

impacted from exposure to selenium 

water column concentrations above 0.2 

mg/L, which would be allowed to occur 

under the existing NTR selenium 

criterion of 5.0 mg/L. Accordingly, EPA 

finds that it is necessary to propose 

revised and more protective criteria for 

selenium in order to help ensure the 

continued protection of these vulnerable 

species and associated designated uses. 

B. Administrator’s Determination of 

Necessity 

Because California’s existing aquatic 

life criteria for selenium in the salt and 

estuarine waters of the San Francisco 

Bay, upstream to and including Suisun 

Bay and the Sacramento-San Joaquin 

Delta, as promulgated by EPA in the 

NTR, are not protective of the applicable 

designated uses per the CWA and EPA’s 

regulations at 40 CFR 131.11, EPA 

determines under CWA section 

303(c)(4)(B) that new or revised WQS 

for the protection of aquatic life and 

aquatic-dependent wildlife are 

necessary to meet the requirements of 

the CWA for these California waters. 

EPA, therefore, proposes the revised 

selenium aquatic life and aquaticdependent wildlife criteria in this rule 

in accordance with this 303(c)(4)(B) 

determination. EPA’s determination is 

not itself a final action, nor part of a 

final action, at this time. After 

consideration of comments on the 

proposed rule, EPA will take final 

agency action on this rulemaking. It is 

at that time that any change to the water 

quality standards applicable in 

California would occur. 

C. Approach 

USGS Ecosystem-Scale Selenium 

Model: The Ecosystem-Scale Selenium 

Model uses species-specific and 

hydrologic site-specific information to 

model the fate and biological uptake of 

selenium in an aquatic ecosystem 

through diet. The model was originally 

developed for the San Francisco estuary. 

It conceptualizes and quantifies several 

key variables in order to predict how 

selenium moves from the water 

environment to wildlife species through 

the food chain. It can link selenium 

tissue concentrations in fish or avian 

wildlife to dissolved and particulate 

selenium concentrations in the water 

environment and to selenium tissue 

concentrations in prey food. 

Starting in 2003, USGS worked with 

the Services and EPA to model the San 

Francisco Bay and Delta using various 

scenarios and endpoints (see the USGS 

Report). Using the best available data for 

the estuary, USGS modeled a clambased food web from the Golden Gate 

through Suisun Bay to Chipps Island 

and an insect-based food web from 

Benicia to Rio Vista (in the Sacramento 

River Delta area) and to Stockton (in the 

San Joaquin River Delta area). Using 

site-specific partitioning coefficients to 

determine rates of selenium 

transformation between dissolved and 

particulate phases, the model can 

predict how efficiently selenium enters 

the base of the food web. Once selenium 

enters the food web, using site-specific 

trophic transfer factors, which relate 

selenium concentrations in a species to 

selenium concentrations in its food, the 

model can predict how efficiently 

selenium moves up into prey food and 

to a predator species. Alternatively, a 

protective tissue level of selenium in an 

upper trophic level fish species or in a 

terrestrial wildlife species (any predator 

species) can be used to back-calculate 

and predict the protective concentration 

of selenium in the species’ prey, and the 

protective concentration of dissolved 

and particulate selenium at the base of 

its food web in the aquatic environment. 

EPA Modeling: Using information 

from the Services on important and/or 

vulnerable fish and avian wildlife 

species in the estuary, and building on 

the USGS modeling of the estuary, EPA 

modeled the estuary to develop sitespecific scenarios on which to base the 

proposed criteria (see Technical 

Support Document for the Proposed 

Aquatic Life and Aquatic-Dependent 

Wildlife Selenium Water Quality 

Criteria for the San Francisco Bay and 

Delta (2016), US EPA Region 9, June, 

2016). 

EPA considered various protective 

(benchmark) tissue values for 

representative fish and avian wildlife 

species to use in the modeling. EPA 

found that the most appropriate tissue 

benchmark values for fish species in the 

estuary are the recommended values in 

EPA’s recent national recommended 

freshwater aquatic life criterion for 

selenium 14 and for avian species in the 

estuary, the egg tissue value discussed 

in EPA’s approval of the State of Utah’s 

avian wildlife criterion for Gilbert Bay 

of the Great Salt Lake.15 These 

benchmark values represent a 10% 

Effect Concentration (EC10), which is a 

concentration or level of a pollutant that 

may adversely affect up to 10% of a 

species population. In the national 

recommended freshwater aquatic life 

criterion for selenium, EPA used EC10 

concentrations to develop the selenium 

water quality criterion values.14

EPA modeled two food webs in the 

estuary, a clam-based web and an 

insect-based web, to determine 

protective dissolved, particulate and 

prey-tissue selenium values. EPA 

modeled a clam-based food chain for 

fish and two clam-based food chains for 

birds that consume Corbula from the 

estuary, each chain representing at-risk 

fish and bird species in the estuary. The 

clam-based fish modeling represented 

white and juvenile green sturgeon, 

important species in the estuary that 

EPA determined are the most vulnerable 

clam-eating fish species. Although 

white sturgeon are not listed under the 

ESA, green sturgeon are threatened and 

the estuary is designated as critical 

habitat for the species. Since other 

important vulnerable fish species in the 

estuary such as Sacramento splittail 

consume less Corbula than sturgeon, the 


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other species should be protected if 

sturgeon are protected. 

EPA modeled two clam-based food 

web scenarios for at-risk avian wildlife 

to represent two different patterns of 

avian clam-consumption in the estuary. 

The California Ridgway’s rail (formerly 

the California clapper rail) is a small, 

endangered, indigenous bird that lives 

year-round in the estuary and eats 

mostly mollusks, but only a small 

percentage of Corbula. The five species 

of migratory diving waterfowl, greater 

and lesser scaup and white-winged, 

surf, and black scoter, live part-time in 

the estuary, but up to 90% of their diet 

may consist of Corbula from the estuary. 

These differences in living and eating 

patterns are sufficiently significant that 

EPA ran the model for each separately 

to ensure the criteria are protective of all 

avian wildlife in the Bay and Delta 

estuary. 

Lastly, EPA modeled insect-eating 

fish to represent two important 

anadromous species, the endangered 

Chinook salmon and the threatened 

steelhead trout, and an important, 

threatened, indigenous species in the 

estuary, the delta smelt. Since 

anadromous species use the estuary as 

a migratory corridor, and adults 

returning to spawn do not feed during 

in-migration, EPA considered the diet of 

juveniles as they out-migrate through 

the estuary to the Pacific Ocean. Delta 

smelt, and juvenile Chinook salmon and 

steelhead trout, consume mainly 

insects, and do not feed on Corbula. 

The model results indicate that clameating fish and clam-eating bird species 

are the most vulnerable species, and 

require lower dissolved and particulate 

water column selenium concentrations 

in the estuary than insect-eating fish in 

order to ensure that tissue levels stay 

below concentrations that may cause 

adverse effects. EPA considered the 

dissolved water column, particulate 

water column, and prey-tissue values 

necessary to protect all three categories 

of species in setting the proposed 

regulatory criteria values. 

D. Proposed Criteria 

Water quality criteria establish the 

maximum allowable pollutant level that 

is protective of the designated uses of a 

water body. States (or in this case, EPA) 

adopt criteria as part of water quality 

standards. Under the CWA, water 

quality standards are used to derive 

effluent limitations in permits for point 

source dischargers, thereby limiting the 

amount of pollutants that may be 

discharged into a water body to 

maintain its designated uses. EPA is 

proposing selenium water quality 

criteria for the San Francisco Bay and 

Delta in tissue and in the water column 

(both dissolved and particulate 

selenium concentrations). EPA is 

proposing selenium tissue concentration 

criteria because they reflect biological 

uptake through diet, the predominant 

pathway for selenium toxicity, and 

because they are most predictive of the 

observed biological endpoint of 

concern: reproductive toxicity. 

However, tissue concentrations present 

challenges when attempting to use them 

to regulate or limit sources of pollutants. 

In order to facilitate monitoring and 

regulation of pollutant discharges, EPA 

is also proposing dissolved and 

particulate water column selenium 

concentration criteria needed to ensure 

the tissue concentration criteria are met. 

Because EPA used site-specific species 

and hydrologic information in the 

Ecosystem-Scale Selenium Model to 

determine the protective dissolved and 

particulate water column and prey 

selenium concentrations associated with 

the predator tissue concentrations, EPA 

proposes that the criteria in different 

media are equivalently protective and 

exceedance of any one medium would 

indicate an impairment of the 

designated use. 

The proposed tissue criteria consist of 

fish tissue criteria, a whole body 

criterion of 8.5 micrograms per gram 

(mg/g) dry weight (dw) or a muscle 

criterion of 11.3 mg/g dw, and a clam (or 

prey) tissue criterion of 15 mg/g dw. EPA 

is proposing each of these tissue criteria 

as an instantaneous measurement not to 

be exceeded. The proposed chronic 

water column criterion is a dissolved 

selenium criterion of 0.2 mg/L, and the 

proposed particulate criterion is 1 mg/g. 

Each of these two values is a 30-day 

average, not to be exceeded more than 

once in three years. 

Although selenium may cause acute 

toxicity at high concentrations, i.e., 

toxicity from a brief but highly elevated 

concentration of selenium in the water, 

chronic dietary exposure poses the 

highest risk to aquatic life and aquaticdependent wildlife. Chronic toxicity 

occurs primarily through maternal 

transfer of selenium to eggs and causes 

subsequent reproductive effects. These 

chronic effects are observed at much 

lower concentrations than acute effects. 

Aquatic and aquatic-dependent 

communities are expected to be 

protected by the chronic criteria from 

any potential acute effects of selenium 

and an acute toxicity criterion is not 

pertinent for regulatory purposes. 

However, some high, short-term 

exposures could be detrimental by 

causing significant long-term, residual, 

bioaccumulative effects, i.e., by the 

introduction of a selenium load into the 

system. Therefore, EPA is also 

proposing an intermittent exposure 

water quality criterion to prevent longterm detrimental effects from these high, 

short-term exposures. EPA derived the 

proposed intermittent criterion as a 

fraction of the 30-day load based on the 

chronic water column criterion, after 

accounting for the background selenium 

concentration. EPA expects that a shortterm, significantly elevated selenium 

scenario would rarely occur in the San 

Francisco Bay and Delta due to the large 

volume of water and tidal influences 

within the estuary that dilute and flush 

selenium loads through the Golden 

Gate. EPA is proposing this intermittent 

criterion to ensure protection of the 

ecosystem and for consistency with 

EPA’s national recommended aquatic 

life criterion for selenium. A summary 

of the proposed criteria is included in 

Table 2. 


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16Highest 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 

CWA and attainable, based on the evaluation of the 

factor(s) in 40 CFR 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 CWA and sub-categories of 

such a use are not attainable (see 40 CFR 131.3(m)). 

The proposed criteria apply to all 

waters of the San Francisco Bay and 

Delta with salinities of greater than 1 

part per thousand (ppt) 95% or more of 

the time. 

IV. Implementation and Alternative 

Regulatory Approaches 

California will have considerable 

discretion to implement these selenium 

criteria, once finalized, through various 

water quality control programs, 

including the NPDES program, which 

limits discharges to waters except in 

compliance with an NPDES permit. 

Among other things, EPA’s regulations: 

(1) Specify how states and authorized 

tribes establish, modify or remove 

designated uses, (2) specify the 

requirements for establishing criteria to 

protect designated uses, including 

criteria modified to reflect site-specific 

conditions, (3) authorize states and 

authorized tribes to adopt WQS 

variances to provide time to achieve the 

applicable WQS, and (4) allow states 

and authorized tribes to include 

compliance schedules in NPDES 

permits to provide time for dischargers 

to achieve effluent limits based on the 

applicable WQS. Designated uses, sitespecific criteria, variances, and 

compliance schedules are discussed in 

more detail below. 

Designated Uses: EPA’s proposed 

selenium criteria apply to marine and 

estuarine waters in the San Francisco 

Bay and Delta where the protection of 

aquatic life and aquatic-dependent 

wildlife are designated uses (see The 

Water Quality Control Plan for the San 

Francisco Bay/Sacramento-San Joaquin 

Delta Estuary, SWRCB, December 13, 

2006). The federal regulations at 40 CFR 

131.10 provide information on 

establishing, modifying, and removing 

designated uses. If California removes 

designated uses such that no aquatic life 

or aquatic-dependent wildlife uses 

apply to any particular water body 

segment affected by this rule and adopts 

the highest attainable use,16 and EPA 

finds that removal to be consistent with 

CWA section 303(c) and the 

implementing regulations at 40 CFR part 

131, then the federal selenium aquatic 

life and aquatic-dependent wildlife 

criteria would no longer apply to that 

water body segment. Instead, any 

criteria associated with the newly 

designated highest attainable use would 

apply to that water body segment. 

Site-Specific Criteria: The regulations 

at 40 CFR 131.11 specify requirements 

for modifying water quality criteria to 

reflect site-specific conditions. In the 

context of this rulemaking, a sitespecific criterion (SSC) is an alternative 

value to the federal selenium criteria 

that would be applied on an area-wide 

or water body-specific basis that meets 

the regulatory test of protecting the 

designated uses, being scientifically 

defensible, and ensuring the protection 

and maintenance of downstream WQS. 

A SSC may be more or less stringent 

than the otherwise applicable federal 

criteria. A SSC may be appropriate 

when further scientific data and 

analyses can bring added precision to 

express the concentration of selenium 

that protects the aquatic life- and 

aquatic-dependent wildlife-related 

designated uses in a particular water 

body or portion of a water body. Since 

the San Francisco Bay and Delta is a 

large water body, a different SSC may be 

appropriate for a small segment of the 

estuary, e.g., South San Francisco Bay, 

if differing flow dynamics indicate that 

different criteria may be more 

appropriate. As discussed in section II. 

E., EPA proposes that once EPA 

approves criteria that California adopts 

and submits after EPA finalizes this 

proposed rule, the site-specific EPAapproved criteria in California’s WQS 

would become effective for CWA 


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17 In the Matter of Star-Kist Caribe, Inc. 3 EAD 

172 (April 16, 1990). 

purposes and EPA’s promulgated 

criteria would no longer apply. 

Variances: EPA’s regulations at 40 

CFR part 131.14 authorize states and 

authorized tribes to adopt WQS 

variances to provide time to achieve the 

applicable WQS. 40 CFR part 131 

defines WQS variances at 131.3(o) as 

time-limited designated uses and 

supporting criteria for a specific 

pollutant(s) or water quality 

parameters(s) that reflect the highest 

attainable conditions during the term of 

the WQS variance. WQS variances 

adopted in accordance with 40 CFR part 

131 allow states and authorized tribes to 

address water quality challenges in a 

transparent and predictable way. 

Variances help states and authorized 

tribes focus on making incremental 

progress in improving water quality, 

rather than pursuing a downgrade of the 

underlying water quality goals through 

a designated use change, when the 

current designated use is difficult to 

attain. EPA is proposing criteria that 

apply to use designations that California 

has already established. California 

currently has authority to use variances 

when implementing the criteria, as long 

as such variances are adopted consistent 

with 40 CFR 131.14 (see Policy for 

Implementation of Toxics Standards for 

Inland Surface Waters, Enclosed Bays, 

and Estuaries of California, Section 5.3, 

SWRCB, March 2, 2000, amended 

February 24, 2005; and Procedures for 

Case-by-Case Exceptions from Criteria/

Objectives, SWRCB, April 15, 2008). 

California may use EPA-approved 

variance procedures, with respect to a 

temporary modification of its uses as it 

pertains to any federal criteria, when 

adopting such variances. 

Compliance Schedules: EPA’s 

regulations at 40 CFR 122.47 and 40 

CFR 131.15 allow states and authorized 

tribes to include permit compliance 

schedules in their NPDES permits, 

when appropriate, in order to 

accommodate a discharger’s need for 

additional time to meet its water 

quality-based effluent limits (WQBELs) 

implementing applicable WQS (such as 

time needed for facility upgrades and 

operational changes). 

In 1990, EPA concluded that before a 

permitting authority can include a 

compliance schedule for a WQBEL in an 

NPDES permit, the state or authorized 

tribe must authorize its use in its WQS 

or implementing regulations.17 A permit 

compliance schedule authorizing 

provision (CSAP) authorizes, but does 

not require, the permit issuing authority 

to include compliance schedules in 

permits. EPA’s approval of the state’s or 

authorized tribe’s permit CSAP as a 

WQS pursuant to 40 CFR 131.15 ensures 

that any NPDES permit that contains a 

compliance schedule meets the 

requirement that the WQBEL and any 

compliance deadlines derive from and 

comply with applicable WQS. 

California is authorized to administer 

the NPDES program in the state, and has 

adopted several mechanisms to 

authorize compliance schedules in 

NPDES permits. In 2008, California 

adopted a statewide CSAP that EPA 

subsequently approved under CWA 

section 303(c), the Policy for 

Compliance Schedules in National 

Pollutant Discharge Elimination System 

Permits, SWRCB Resolution No. 2008– 

0025, April 15, 2008. This EPAapproved regulation authorizes the use 

of permit compliance schedules 

consistent with 40 CFR 131.15, and is 

not affected by this rule. The CSAP will 

allow California to grant compliance 

schedules, as appropriate, based on the 

federal selenium criteria for the Bay and 

Delta, once these criteria are finalized 

(see letters dated May 20, 2016 and May 

27, 2016 from the SWRCB to EPA in the 

docket for this rule). 

V. Endangered Species Act 

Pursuant to section 7(a) of the ESA, 

EPA is consulting with the FWS and 

NMFS concerning EPA’s rulemaking 

action for selenium water quality 

criteria in the San Francisco Bay and 

Delta. EPA will initiate informal 

consultation, and will transmit to the 

Services documentation that supports 

the selenium water quality criteria in 

this proposed rule. As a result of this 

consultation, EPA may modify some 

provisions of this proposed rule. The 

basis for the selenium criteria in this 

proposed rule stems from many years of 

ongoing collaboration between EPA and 

the Services. EPA, FWS and NMFS will 

continue to work closely together on 

this ESA consultation process. 

VI. Economic Analysis 

POTWs and industrial point sources 

that discharge to the Bay and Delta may 

incur some incremental compliance 

actions and costs as a result of the 

proposed criteria. California has NPDES 

permitting authority for these 

dischargers, and retains considerable 

discretion in implementing standards. 

EPA evaluated the potential costs to the 

municipal and industrial NPDES 

dischargers associated with state 

implementation of EPA’s proposed 

dissolved water column criterion. EPA 

did not evaluate the potential costs 

associated with state implementation of 

EPA’s proposed particulate water 

column criterion because particulate 

data are not available and because the 

state has discretion concerning 

implementation. This analysis is 

documented in Economic Analysis for 

Proposed Aquatic Life and AquaticDependent Wildlife Criteria for 

Selenium in the San Francisco Bay and 

Delta, California (prepared for EPA by 

Abt Associates in Partnership with PG 

Environmental, LLC, June, 2016), which 

can be found in the docket for this 

rulemaking. 

NPDES-permitted facilities that 

discharge selenium to affected portions 

of the Bay and Delta could potentially 

incur compliance costs. The types of 

affected facilities could include 

industrial facilities and POTWs 

discharging wastewater to surface 

waters (i.e., point sources). EPA expects 

that dischargers will use the same types 

of controls as they are currently using to 

comply with existing selenium criteria 

applicable to the Bay and Delta, to come 

into compliance with the revised 

criteria. Since the state recently adopted 

the North San Francisco Bay Selenium 

TMDL, and the TMDL requirements and 

underlying analyses indicate that 

current ambient water quality 

conditions (dissolved selenium levels at 

or below 0.2 mg/L) will be maintained, 

EPA did not include costs associated 

with point sources covered in the TMDL 

analysis. 

EPA did not identify incremental 

compliance costs for nonpoint sources. 

Unlike point sources, California 

typically does not require nonpoint 

sources to achieve numeric WQBELs; 

instead, these sources often have best 

management practice (BMP) 

requirements, as well as load allocations 

associated with TMDLs. Regional 

Boards have already established TMDLs 

for selenium in the Lower San Joaquin 

River and the North San Francisco Bay, 

and EPA assumes the proposed 

selenium criteria will not result in the 

need for additional controls by nonpoint 

sources in those areas. It is uncertain to 

what extent nonpoint sources contribute 

selenium loadings to the Lower and 

South San Francisco Bay. EPA assumes 

that naturally-occurring selenium may 

be the primary source of selenium in the 

Lower and South San Francisco Bay, 

and as such, the incremental controls 

and costs for nonpoint sources as a 

result of the proposed criteria will not 

be significant. 

A. Identifying Affected Entities 

Potentially affected facilities include 

those discharging to waters subject to 

the proposed criteria (i.e., marine or 

estuarine waters) that are not already 

included in the North San Francisco 


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18Pursuant to the Policy for Implementation of 

Toxics Standards for Inland Surface Waters, 

Enclosed Bays, and Estuaries of California, SWRCB, 

California Environmental Protection Agency, March 

2, 2000, amended February 24, 2005. 

Bay Selenium TMDL. EPA identified 16 

such point source facilities, all 

discharging to the Lower and South San 

Francisco Bay. Of these potentially 

affected facilities, 14 are POTWs and 2 

are industrial dischargers (the San 

Francisco International Airport and the 

Bottling Group, LLC). Table 3 

summarizes these potentially affected 

facilities by type and category. 

TABLE 3—POTENTIALLY AFFECTED

FACILITIES

Category Minor Major All 

Municipal ................. 1 13 14 

Industrial ................. 1 1 2 

Total ................. 2 14 16 

B. Method for Estimating Costs 

For all potentially affected facilities, 

EPA used the last five years of effluent 

data (when available) and ambient 

monitoring data from the relevant 

monitoring station to determine whether 

there is reasonable potential for the 

facility to cause or contribute to an 

excursion above the proposed dissolved 

water column criterion for selenium. 

For those facilities that have reasonable 

potential, EPA calculated projected 

effluent limits. EPA conducted 

reasonable potential analyses and 

calculated effluent limitations for each 

facility based on California’s permitting 

practices.18 In instances where the 

facility’s maximum effluent selenium 

concentration exceeded the projected 

effluent limitations under the proposed 

criterion, EPA determined the likely 

compliance scenarios and costs. 

Following California’s Policy for 

Implementation of Toxics Standards for 

Inland Surface Waters, Enclosed Bays, 

and Estuaries of California may result in 

a conservative evaluation for some point 

sources. However, the Regional Boards 

have substantial discretion to apply 

other implementing permitting 

procedures that are consistent with the 

Policy’s requirements, and may elect to 

follow different methods to determine 

whether effluent limits are necessary 

and/or the value of the effluent 

limitations. These alternative methods 

may result in fewer facilities requiring 

action and/or less stringent permit 

limitations. 

EPA assumed that dischargers would 

pursue the least cost means of 

compliance with WQBELs. Incremental 

compliance actions attributable to the 

proposed rule may include process 

optimization, source controls, end-ofpipe treatment, and alternative 

compliance mechanisms (e.g., sitespecific criteria, variances, and dilution 

credits). For plants discharging at levels 

above California’s minimum 

quantitation level, EPA has assumed 

that the facility will pursue 

conventional treatment methods to 

comply with the projected effluent 

limitations. Facilities operating below 

the quantitation level are discharging 

near the projected limitations, and EPA 

has assumed that compliance is likely to 

be achievable using process 

optimization methods. EPA annualized 

capital costs over 20 years using a 3% 

discount rate to obtain total annual costs 

per facility. 

C. Results 

Of the 16 potentially affected facilities 

that EPA identified, 14 were found to 

have reasonable potential to cause or 

contribute to an excursion above the 

proposed criterion. For compliance with 

revised WQBELs under the proposed 

rule, EPA estimates the total annual cost 

to be approximately $16 million across 

the 14 facilities. Of these costs, nearly 

all are attributable to POTW dischargers 

(i.e., 13 POTWs and one industrial 

facility, the San Francisco International 

Airport). 

VII. Statutory and Executive Orders 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

This action is not a significant 

regulatory action and was, therefore, not 

submitted to the Office of Management 

and Budget (OMB) for review. The 

proposed rule does not establish any 

requirements directly applicable to 

regulated entities or other sources of 

toxic pollutants. However, these WQS 

may serve as a basis for development of 

NPDES permit limits. California has 

NPDES permitting authority, and retains 

considerable discretion in implementing 

WQS. In the spirit of Executive Order 

12866, EPA evaluated the potential 

costs to NPDES dischargers associated 

with state implementation of EPA’s 

proposed criteria. This analysis, 

Economic Analysis for Proposed 

Aquatic Life and Aquatic-Dependent 

Wildlife Criteria for Selenium in the San 

Francisco Bay and Delta, California, is 

summarized in section VI. of the 

preamble and is available in the docket. 

B. Paperwork Reduction Act (PRA) 

This action does not impose an 

information collection burden under the 

PRA. While actions to implement these 

WQS could entail additional paperwork 

burden, this action does not directly 

contain any information collection, 

reporting, or record-keeping 

requirements. 

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. This action will not 

impose any requirements on small 

entities. Small entities, such as small 

businesses or small governmental 

jurisdictions, are not directly regulated 

by this rule. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. As these water quality 

criteria are not self-implementing, the 

action imposes no enforceable duty on 

any state, local or tribal governments or 

the private sector. 

E. Executive Order 13132 (Federalism) 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. This rule does not 

alter California’s considerable discretion 

in implementing these WQS, nor would 

it preclude California from adopting 

WQS that meet the requirements of the 

CWA, either before or after 

promulgation of the final rule, which 

would eliminate the need for federal 

standards upon EPA approval of the 

state WQS. Thus, Executive Order 

13132 does not apply to this action. 

In the spirit of Executive Order 13132 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicits comments on this 

proposed action from state and local 

officials. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This action does not have tribal 

implications as specified in Executive 

Order 13175. This proposed rule does 

not impose substantial direct 

compliance costs on federally 

recognized tribal governments, nor does 

it substantially affect the relationship 

between the federal government and 

tribes, or the distribution of power and 


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responsibilities between the federal 

government and tribes. Thus, Executive 

Order 13175 does not apply to this 

action. 

Consistent with the EPA Policy on 

Consultation and Coordination with 

Indian Tribes, EPA consulted with tribal 

officials during the development of this 

action. EPA will continue to 

communicate with the tribes prior to its 

final action. 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act of 1995 

This proposed rulemaking does not 

involve technical standards. 

J. Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations) 

The human health or environmental 

risk addressed by this action will not 

have potential disproportionately high 

and adverse human health or 

environmental effects on minority, lowincome or indigenous populations. The 

criteria in this proposed rule will 

support the health and abundance of 

aquatic life and aquatic-dependent 

wildlife in the San Francisco Bay and 

Delta and will, therefore, benefit all 

communities that rely on these 

ecosystems. 

List of Subjects in 40 CFR Part 131 

Environmental protection, Indianslands, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Water pollution control. 

Dated: June 30, 2016. 

Gina McCarthy, 

Administrator. 

For the reasons set forth in the 

preamble, EPA proposes to amend 40 

CFR part 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 D—Federally Promulgated 

Water Quality Standards 

■ 2. Section 131.36 is amended by 

revising paragraph (d)(10)(ii) table entry 

for ‘‘Waters of San Francisco Bay 

upstream to and including Suisun Bay 

and the Sacramento-San Joaquin Delta’’ 

to read as follows: 

§ 131.36 Toxics criteria for those states 

not complying with Clean Water Act section 

303(c)(2)(B). 

* * * * * 

(d) * * * 

(10) * * * 

(ii) * * * 

Water and use classification Applicable criteria 

*******

Waters of San Francisco Bay upstream to and including Suisun Bay 

and the Sacramento-San Joaquin Delta.

These waters are assigned the criteria in: 

Column B1—pollutants 5a, 10 a and 14 

Column B2—pollutants 5a, 10 a and 14 

Column D2—pollutants 1, 12, 17, 18, 21, 22, 29, 30, 32, 33, 37, 38, 

42–44, 46, 48, 49, 54, 59, 66, 67, 68, 78–82, 85, 89, 90, 91, 93, 95, 

96, 98 

* * * * * * * 

aThese freshwater selenium criteria are only applicable to the extent that the criteria under 40 CFR 131.38(b)(3) are not applicable (i.e., they 

are only applicable in fresh waters). 

* * * * * 

■ 3. Section 131.38 is amended as 

follows: 

■ a. Revise paragraph (b)(1) table 

footnotes ‘‘p’’ and ‘‘q’’; 

■ b. Add paragraph (b)(3); 

■ c. Revise paragraph (c)(3)(ii); 

■ d. Add paragraphs (c)(3)(iv) and (v). 

§ 131.38 Establishment of numeric criteria 

for priority toxic pollutants for the State of 

California. 

* * * * * 

(b)(1) * * * 

Footnotes to Table in Paragraph (b)(1): 

* * * * * 

p. The [Reserved] criterion referenced 

by this footnote does not supersede any 

selenium criterion set out in 40 CFR 

131.36 for: Waters of the San Francisco 

Bay, upstream to and including Suisun 

Bay and the Sacramento-San Joaquin 

Delta; and waters of Salt Slough, Mud 

Slough (north) and the San Joaquin 

River, Sack Dam to the mouth of the 

Merced River. The criteria set out in 40 

CFR 131.38(b)(3) apply to the salt and 

estuarine waters of the San Francisco 

Bay, upstream to and including Suisun 

Bay and the Sacramento-San Joaquin 

Delta, subject to 40 CFR 131.38(c)(3)(v). 

The State of California adopted and EPA 

approved a site specific criterion for the 

San Joaquin River, mouth of Merced to 

Vernalis; therefore, the criterion 

referenced by this footnote does not 

apply to these waters. 

q. The 5 mg/L criterion referenced by 

this footnote does not supersede any 

selenium criterion set out in 40 CFR 

131.36 for: Waters of the San Francisco 

Bay, upstream to and including Suisun 

Bay and the Sacramento-San Joaquin 

Delta; and waters of Salt Slough, Mud 

Slough (north) and the San Joaquin 

River, Sack Dam to Vernalis. The 

criteria set out in 40 CFR 131.38(b)(3) 

apply to the salt and estuarine waters of 

the San Francisco Bay, upstream to and 

including Suisun Bay and the 

Sacramento-San Joaquin Delta, subject 

to 40 CFR 131.38(c)(3)(v). The State of 

California adopted and EPA approved a 

site-specific criterion for the Grasslands 

Water District, San Luis National 

Wildlife Refuge, and the Los Banos State 

Wildlife Refuge; therefore, the criterion 

referenced by this footnote does not 

apply to these waters. 

* * * * * 


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(3) The selenium criteria in Table 1 to 

this paragraph (b)(3) apply to all the 

waters of San Francisco Bay upstream to 

and including Suisun Bay and the 

Sacramento-San Joaquin Delta where 

the salinity is greater than 1 part per 

thousand 95% or more of the time, 

subject to paragraph (c)(3)(v). 

(c) * * * 

(3) * * * 

(ii) For waters in which the salinity is 

equal to or greater than 10 parts per 

thousand 95% or more of the time, the 

applicable criteria are the saltwater 

criteria in Column C. 

* * * * * 

(iv) Notwithstanding paragraphs 

(c)(3)(ii) and (iii) of this section, for 

waters of San Francisco Bay upstream to 

and including Suisun Bay and the 

Sacramento-San Joaquin Delta with 

salinity greater than 1 part per thousand 

95% or more of the time, the selenium 

criteria provided in paragraph (b)(3) of 

this section are the only applicable 

selenium criteria, subject to paragraph 

(c)(3)(v). 

(v) The criteria in paragraph (b)(3) of 

this section apply concurrently with any 

water quality criteria adopted by the 

state, except where California adopts 

site-specific selenium criteria for a 

segment of the estuary that EPA 

determines meet the requirements of 

Clean Water Act section 303(c) and 40 

CFR part 131, in which case California’s 

criteria will apply and not the criteria in 

paragraph (b)(3) of this section. 

[FR Doc. 2016–16266 Filed 7–14–16; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

46 CFR Chapter I 

[Docket No. USCG–2016–0669] 

Draft Revisions to the Marine Safety 

Manual, Volume III, Parts B and C, 

Change-2 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of availability with 

request for comments. 

SUMMARY: The Coast Guard announces 

the availability of a draft update to the 

Marine Safety Manual (MSM), Volume 

III, Marine Industry Personnel, and the 

corresponding Commandant Change 

Notice that highlights the changes made 


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