Vol. 80 Friday, 

No. 162 August 21, 2015 

Part IV 

Environmental Protection Agency 

40 CFR Part 131 

Water Quality Standards Regulatory Revisions; Final Rule 


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51020 Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations 

1Hereafter 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. 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2010–0606; FRL–9921–21– 

OW] 

RIN 2040–AF16 

Water Quality Standards Regulatory 

Revisions 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: EPA updates the federal water 

quality standards (WQS) regulation 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 

program areas to improve the WQS 

regulation’s effectiveness, increase 

transparency, and enhance 

opportunities for meaningful public 

engagement at the state, tribal and local 

levels. Specifically, in this rule EPA: 

Clarifies what constitutes an 

Administrator’s determination that new 

or revised WQS are necessary; refines 

how states and authorized tribes assign 

and revise designated uses for 

individual water bodies; revises the 

triennial review requirements to clarify 

the role of new or updated Clean Water 

Act (CWA) section 304(a) criteria 

recommendations in the development of 

WQS by states and authorized tribes, 

and applicable WQS that must be 

reviewed triennially; establishes 

stronger antidegradation requirements 

to enhance protection of high quality 

waters and promotes public 

transparency; adds new regulatory 

provisions to promote the appropriate 

use of WQS variances; and clarifies 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 leads 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. 

DATES: This final rule is effective on 

October 20, 2015. 

ADDRESSES: EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OW–2010–0606. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. 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. Publicly available docket 

materials are available either 

electronically through http:// 

www.regulations.gov or in hard copy at 

the Office of Water Docket Center, EPA/ 

DC, William Jefferson Clinton West 

Building, Room 3334, 1301 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., Washington 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: 

Table of Contents 

I. General 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 the final 

changes to the federal WQS regulation 

address? 

D. How was this final rule developed? 

E. When does this action take effect? 

II. Rule Revisions Addressed in This 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 

IV. Statutory and Executive Order Reviews 

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 

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? 

The entities potentially affected by 

this rule are shown in the table below. 

Category Examples of potentially affected 

entities 

States and 

Tribes.

States and authorized tribes responsible for administering or 

overseeing water quality programs.1

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, but rather 

it provides 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 


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Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations 51021 

2Under 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 section 303(c) refers to state 

and authorized tribal water quality criteria that are 

subject to EPA review and approval or disapproval. 

3 54 FR 51400 (November 8, 1983). 

4First edition, December 1983; second edition, 

EPA 823–B–94–005a, August 1994. 5First edition, EPA 440/4–85–032, September 

1985; revised edition, EPA 505/2–90–001, March 

1991. 

6 56 FR 64893 (December 12, 1991). 

7 65 FR 24641 (April 27, 2000). 

8 63 FR 36742 (July 7, 1998). 

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 Clean Water Act (CWA or the 

Act)—initially enacted as the Federal 

Water Pollution Control Act 

Amendments of 1972 (Pub. L. 92–500) 

and subsequent amendments— 

determined 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 propagation 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 addresses 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 that support 

the uses, and antidegradation 

requirements. Designated uses establish 

the environmental objectives for a water 

body and water quality criteria 2 define 

the minimum conditions necessary to 

achieve those environmental objectives. 

The antidegradation requirements 

provide a framework for maintaining 

and protecting water quality that has 

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 municipal 

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 

regulations.’’ 

The CWA gives states and authorized 

tribes discretion on how to control 

pollution from nonpoint sources. 

Although 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/pollutants. 

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 obtain 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 federal 

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 131.3 In 

support of the 1983 regulation, EPA 

issued a number of guidance 

documents, such as the Water Quality 

Standards Handbook (WQS 

Handbook),4 that provide guidance on 

the interpretation and implementation 

of the WQS regulation and on scientific 

and technical analyses that are used in 

making decisions that would impact 

WQS. EPA also developed the Technical 

Support Document for Water QualityBased Toxics Control 5 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.6 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.7

In 1998, EPA issued an Advance 

Notice of Proposed Rulemaking 

(ANPRM) to discuss and invite 

comment on over 130 aspects of the 

federal 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.8 Although EPA chose 

not to move forward with a rulemaking 

after the ANPRM, 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 ensure more effective 

program implementation. This action is 

part of EPA’s ongoing effort to clarify 

and strengthen the WQS program. 

C. What environmental issues do the 

final changes to the federal WQS 

regulation address? 

Since EPA first established the WQS 

regulation in 1983, the regulation 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 necessitate 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 regulation 

to help meet these challenges. 

This rulemaking revises 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 


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9See Water Quality Standards Regulatory 

Clarifications, 78 FR 54517 (September 4, 2013). 

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 allows for better and more 

transparent communication among EPA, 

states, 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. 

This rule ensures better protection 

and maintenance of high quality waters 

that have better water quality than 

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 better 

able to resist stressors, such as 

atmospherically deposited pollutants, 

emerging contaminants, severe weather 

events, altered hydrology, or other 

effects resulting from climate change. 

This rule strengthens the evaluation 

used to identify and manage 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 state or authorized tribal decision 

to allow permit compliance schedules 

includes public engagement and 

transparency. These two tools 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. 

Lastly, the Administrator’s 

determination and triennial review 

provisions in this rule promote public 

transparency and 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 component 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 latest 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 this 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 September 4, 2013.9 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 wellinformed comments. 

Over 150 organizations and 

individuals submitted comments on a 

range of issues. EPA also 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 make regulatory changes 

to address the substance of these 

comments. In each section of this 

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 Response 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 environmental 

community. Records of each meeting are 

included in the official public docket. 

E. When does this action take effect? 

This regulation is effective October 

20, 2015. For judicial review purposes, 

this rule is promulgated as of 1 p.m. 

EST (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 this final 

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 tribe initiates after 

publication of the rule. 

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 review. 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 the 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 will 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 after close of the 

public comment period. Except for the 

circumstances outlined in this 

paragraph regarding the transition 

period, EPA will work with states and 

authorized tribes to ensure that new or 

revised WQS meet the requirements of 

the final rule. 

In the event that a court sets aside any 

portion of this rule, EPA intends for the 

remainder of the rule to remain in effect. 


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10A 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 

section 303(c)(4)(B) to its Web site. 

11 Indian country is 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). 

II. Rule Revisions Addressed in This 

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 

both documents at http://water.epa.gov/ 

lawsregs/lawsguidance/wqs_index.cfm. 

A. Administrator’s Determinations That 

New or Revised WQS Are Necessary 

What does this 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 Administrator 

that new or revised WQS are necessary 

under CWA section 303(c)(4)(B) 

(hereafter referred to as 

‘‘Administrator’s determination’’).10

With the clarification provided by this 

rule, stakeholders and the public can 

readily distinguish Administrator’s 

determinations from routine EPA 

communications on issues of concern 

and recommendations regarding the 

scope and content of state and 

authorized tribal WQS. This rule 

minimizes the potential for stakeholders 

to misunderstand EPA’s intent with its 

communications and allows EPA to 

provide direct and transparent feedback. 

It will also preserve limited resources 

that would otherwise be spent resolving 

the confusion through litigation. 

An Administrator’s determination is a 

powerful tool, and this rule ensures that 

it continues to be used purposefully and 

thoughtfully. This 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 constitute an Administrator’s 

determination, it must be signed by the 

Administrator or duly authorized 

delegate. The second requirement is that 

such a determination must include a 

statement that the document is an 

Administrator’s determination for 

purposes of section 303(c)(4)(B) of the 

Act. This 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). 

Section 303(c)(4) of the Act provides 

two different scenarios under which the 

Administrator has the authority to 

‘‘promptly prepare and publish 

proposed regulations setting forth a 

revised or new water quality standard 

for the navigable waters involved’’ 

following some sort of determination. 

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 

disapproves new or revised WQS and 

specifies the changes necessary to meet 

CWA 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 

federal WQS as specified in CWA 

section 303(c)(4)(A) and 40 CFR 

131.22(a). This action 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 WQS, unless a 

state or authorized tribe adopts and EPA 

approves such WQS first. 

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 ‘‘states’’ 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 more ‘‘navigable 

waters,’’ as that term is defined in CWA 

section 502(7) 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 country.11

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 

addresses 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 

revisions to § 131.22(b) altogether. 

However, this option would not meet 

EPA’s policy objective, described 

previously, which many commenters 

supported. 

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)). This action 

does not affect the public’s ability to 

petition EPA to issue, amend, or repeal 

a rule. Nor does this 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 

Administrator 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 federal WQS. 

Some commenters requested 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 other 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 this rule provide and why? 

CWA section 303(c)(2)(A) requires 

that new or revised WQS shall consist 


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12EPA’s 1983 regulation and ‘‘the rebuttable 

presumption stemming therefrom’’ have been 

upheld as a ‘‘permissible construction of the 

statute’’ (Idaho Mining Association v. Browner, 90 

F. Supp. 2d 1078, 1097–98 (D. Idaho 2000)). 

13To 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 component of the food web. 

14A 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). 15See 78 FR 54525 (September 4, 2013). 

of designated uses and water quality 

criteria based 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 ultimate 

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 

authorized tribes show those uses are 

unattainable through a use attainability 

analysis (UAA) consistent with EPA’s 

regulation, effectively creating a 

rebuttable presumption of 

attainability.12 This underlying 

requirement remains unchanged by this 

rule. EPA discussed the 1983 

requirements and the rebuttable 

presumption in the preamble to the 

proposed rule as background discussion 

of the existing regulatory requirements. 

The revisions to § 131.10 establish the 

additional requirement to adopt the 

highest attainable use (HAU) after 

demonstrating that CWA section 

101(a)(2) uses are not attainable. 

CWA section 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 other purposes including 

navigation.’’ 

The 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 criteria 

development and water quality 

management decisions. Therefore, clear 

and accurate 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 distinguishes 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 this 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,13 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 ‘‘subcategory of a use specified 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.14 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, this rule clarifies when a 

UAA is and is not required. This 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 HAU, as defined in this rule. 

The HAU requirement supports 

adoption of states’ and authorized 

tribes’ WQS to enhance the quality of 

the water and to serve the purposes of 

the Act, including ensuring water 

quality that provides for uses described 

in CWA section 101(a)(2) where 

attainable and to restore and maintain 

the chemical, physical and biological 

integrity of the Nation’s waters. 

For non-101(a)(2) uses, this rule 

provides that a UAA is not required 

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 non101(a)(2) uses must be consistent with 

the statute and transparent to the public 

and EPA. This rule also provides a 

regulatory definition for a non-101(a)(2) 

use at § 131.3(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, this rule revises § 131.10(g) 

and (j) so that when the provisions are 

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, this rule revises 

§ 131.10(k) into new § 131.10(k)(1) and 

(2) to eliminate a possible contradiction 

with § 131.10(j)(2), as described in the 

preamble to the proposed rule.15

Section 131.10(j) describes when a 

UAA is required. Section 131.10(k) 

specifies 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 physical, 

chemical, biological, and economic 

factors as described in § 131.10(g).’’ 

Section 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 required 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 previously 

designated uses that do not include the 


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16This provision includes situations where a state 

or authorized tribe adopts for the first time, or 

previously designated, only non-101(a)(2) uses. 

uses specified in section 101(a)(2) of the 

Act.16 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 revising a subcategory of such a use. These revisions 

also clarify that when adopting a subcategory of a use specified in section 

101(a)(2) of the Act with less stringent 

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). This rule also includes 

editorial changes to § 131.10(g) that are 

not substantive in nature. Lastly, EPA 

establishes a new § 131.10(k)(1) and (2) 

to explain when a UAA is not required. 

To ensure that states and authorized 

tribes adopt WQS that continue to serve 

the Act’s goal of water quality that 

provides for the uses specified in 

section 101(a)(2) of the CWA to the 

extent attainable and enhance the 

quality of the water, this 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 defined at 

§ 131.3(m). These new requirements 

make clear that states and authorized 

tribes may remove 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 

sub-category 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 sub-category of 

aquatic life use is attainable. EPA 

expects such situations to be rare; 

however to clarify that this outcome is 

possible, EPA adds a sentence to the 

definition of HAU at § 131.3(m) to make 

explicit that where the state or 

authorized tribe demonstrates the 

relevant use specified in section 

101(a)(2) of the Act and sub-categories 

of such a use are not attainable, there is 

no required HAU to be adopted. 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 HAU. 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 that 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 

continuing to serve the goals of the 

CWA by removing the aquatic life use 

designation and applicable criteria 

altogether without adopting an alternate 

CWA section 101(a)(2) use or subcategory of such a use that is feasible to 

attain, and the criteria that protect 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 

overly subjective terminology that 

would make it difficult for states and 

authorized tribes to adopt an HAU that 

would not be challenged by 

stakeholders. The definition of HAU at 

§ 131.3(m) 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 use, 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 than another (e.g., to 

determine that a recreation use is better 

than an aquatic life use). 

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 that were used to evaluate 

attainability’’ to the final HAU 

definition to be clear that the HAU is 

the attainable use that results from the 

process of determining what is not 

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 social impact 

consistent with § 131.10(g)(6). Although 

the 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 numerically 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 

determination 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 naturally occur in that water 

body or waterbody segment. 

When conducting a UAA and 

soliciting input from the public, states 

and authorized tribes need to consider 

not only what is currently attained, but 

also what is attainable in the future after 

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 water 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 

states 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 sub-categories to protect 


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51026 Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations 

17Section 131.10(c) provides that states and 

authorized tribes ‘‘may adopt sub-categories of a 

use. . .’’ (emphasis added). This provision 

generally allows states and authorized tribes to 

adopt sub-categories of the uses specified in the 

CWA. This 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 subcategory 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 subcategories of uses per § 131.10(c). 

18Section 131.10(a) already provided that states 

and authorized tribes ‘‘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 other purposes including 

navigation’’). 

19Section 131.6(a) and (b) already provided that 

states and authorized tribes must submit to EPA for 

review ‘‘use 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.’’ 

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 state 

identified the highest attainable aquatic 

life use for these waters and created two 

new sub-categories (effluent-dependent 

fisheries and effluent-dependent nonfish bearing waters) with criteria that are 

sufficiently protective of these uses. 

These EPA-approved sub-categories 

reflect the aquatic life use that can be 

attained in these waters, while still 

protecting the effluent dependent 

aquatic life. 

Some commenters expressed concern 

with the difficulty of articulating a 

specific HAU because doing 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 state 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 established for the water 

body.’’ 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 

‘‘Limited 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 

water bodies dredged and filled 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. 

Where a state or authorized tribe does 

not already have a statewide use in their 

regulation 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 aligns with 

their specific needs, as long as their 

preferred approach is protective of the 

HAU and is consistent with the CWA 

and § 131.10.17

As an example of how a UAA informs 

the identification of the HAU, consider 

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 rather 

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 that were used to evaluate 

attainability (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 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 

state or authorized tribe adopts new or 

revised non-101(a)(2) uses, this 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). This rule defines a non101(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. This rule revises § 131.10(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 consideration 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.’’ These 

requirements are consistent with EPA’s 

previously existing regulation at 

§§ 131.10(a) 18 and 131.6.19 A UAA can 

also be used to satisfy the requirements 

at § 131.10(a). 

EPA encourages states and authorized 

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/waterbody 


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20http://water.epa.gov/scitech/swguidance/

standards/upload/2000_10_31_standards_

shellfish.pdf. 

21 57 FR 60859 (December 22, 1992). See also 40 

CFR 131.36. 

22http://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. 

23 78 FR 54523 (September 4, 2013). 

24http://water.epa.gov/scitech/swguidance/

standards/upload/Smithee-existing-uses-2008-09- 

23.pdf. 

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 

§ 131.10(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 

designated 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. The 

state or authorized tribe decides there is 

no use and value in retaining such a use 

for that water body. The state or 

authorized tribe could provide the 

public and EPA with documentation 

that public water supply is not an 

existing use (e.g., there is no evidence 

that the water body was used for this 

purpose and the water quality does not 

support this use); the nearby population 

uses an alternative drinking water 

supply; and projected population trends 

suggest that the current supply is 

sufficient to accommodate future 

growth. States and authorized tribes 

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 this rule, EPA 

considered foregoing the revisions to 

§ 131.10(g), (j), and (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), 

(j), and (k)(1) and (2) as proposed; 

however, in response to comments 

received, EPA made revisions to better 

accomplish its objectives. 

EPA considered foregoing the HAU 

requirement at § 131.10(g), but this 

option would not support the adoption 

of WQS that continue to serve the 

purposes of the Act and enhance the 

quality of the water. 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 the final rule; 

however, multiple commenters 

indicated that EPA’s proposed rule only 

specified 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 

(k)(3). 

What is EPA’s position on certain public 

comments? 

Numerous 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 

interprets 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.20

EPA first articulated this 

interpretation in the 1992 National 

Toxics Rule.21 For 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.22 Consistent with this 

interpretation, most states have adopted 

human health criteria as part of their 

aquatic life uses, as the purpose of the 

criteria is to limit the amount of a 

pollutant in aquatic species prior to 

consumption by humans. However, 

states and authorized tribes may also 

choose to adopt human health criteria as 

part of their recreational uses, 

recognizing that humans will consume 

fish and shellfish after fishing, which 

many states consider to be a recreational 

use. EPA leaves 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 shown 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, EPA is not reopening or 

changing the regulatory provision at 

§ 131.10(h)(1). The proposed change to 

§ 131.10(g) simply referred back to the 

requirement that is housed in 

§ 131.10(h)(1) and was not intended to 

change requirements regarding existing 

uses. This is also the case in the final 

rule. 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 existing uses 

in the background section of the 

proposed preamble,23 as well as in a 

September 2008 letter from EPA to the 

State of Oklahoma.24 Specifically, EPA 

explained that existing uses are known 

to be ‘‘actually attained’’ when the use 

has actually occurred 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. When 

determining an existing use, EPA 

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 regarding 

whether the use has occurred and the 

water quality necessary 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 interpretation supports the 

removal of a designated use in a 

situation where the use has actually 

occurred but the water quality necessary 

to protect the 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 

an interpretation may be 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 quality 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. 


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25EPA’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. 

26WQS 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 effluent limits 

or development of total maximum daily loads (40 

CFR 131.21, 65 FR 24641, April 27, 2000). 

If a state or authorized tribe chooses 

not to recognize primary contact 

recreation as an 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 primary contact recreation 

use if the use is not an existing use or 

if more stringent criteria are being 

added; 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 nonpoint source control 

(§ 131.10(h)(1) and(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 § 131.10 

ensures that states and authorized tribes 

designate 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 maintain uses 

that have actually been attained. 

C. Triennial Reviews 

What does this rule provide and why? 

The CWA and EPA’s implementing 

regulation require states and authorized 

tribes 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 tribes 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 health 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 the public their consideration of 

EPA’s CWA section 304(a) criteria 

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 

updated CWA section 304(a) criteria 

recommendations. To ensure public 

transparency and clarify existing 

requirements, the 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 not to adopt 

new or revised criteria during their 

triennial review for any parameters for 

which EPA has published new or 

updated criteria recommendations 

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 must review triennially. 

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 must consider 

them. 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.25

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 authorized 

tribes conduct their triennial reviews 

and by requiring states and authorized 

tribes to adopt EPA’s CWA section 

304(a) criteria recommendations. This 

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. The CWA section 304(a) criteria 

are national recommendations, and 

states or authorized tribes may wish to 

consider site-specific physical and/or 

chemical water body characteristics 

and/or varying sensitivities of local 

aquatic communities. While states and 

authorized tribes are not required to 

adopt the CWA section 304(a) criteria 

recommendations, they are required 

under the Act and EPA’s implementing 

regulations to adopt criteria that protect 

applicable 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 tribes 

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 coordination with 

local, state, federal, and tribal entities. 

Communication with EPA (and the 

public) about these decisions provides 

opportunities to assist states and 

authorized tribes 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 water quality 

management processes. Following this 

rulemaking, when states and authorized 

tribes conduct their next triennial 

review they must provide an 

explanation for why they did not adopt 

new or revised criteria for parameters 

for which EPA has published new or 

updated CWA section 304(a) criteria 

recommendations since May 30, 2000.26

During the triennial reviews that follow, 

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 regardless of 

whether new or updated CWA section 

304(a) criteria recommendations are 


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Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations 51029 

27EPA 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 disapprove (http://

water.epa.gov/scitech/swguidance/standards/

upload/cwa303faq.pdf). 

28 Definitions adopted by states and authorized 

tribes are considered WQS when they are 

inextricably linked to provisions adopted pursuant 

to §§ 131.10–131.15. 

29Any 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. 

30This rule finalizes § 131.14 (WQS Variances) 

and § 131.15 (Provisions Authorizing the Use of 

Schedules of Compliance for WQBELs in NPDES 

permits). For detailed discussion about these 

sections, see sections II.E and II.F of this document, 

respectively. 

31For detailed discussion about this final rule for 

§ 131.20(b), related to public participation, see 

section II.G of this document. 

32See CWA section 101(a) (emphasis added). 

33http://water.epa.gov/polwaste/nps/watershed/

upload/economic_benefits_factsheet3.pdf; 

Economic Benefits of Protecting Healthy 

Watersheds (EPA 841–N–12–004, April 2012). 

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 the 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 explanation 

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 

state’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 

Web site or some other mechanism to 

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 

triennial review. By not addressing this 

issue directly in the proposal, EPA may 

have inadvertently 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 parameters for 

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 

promulgated 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, the 

final rule clarifies what the regulation 

means by ‘‘applicable water quality 

standards.’’ 27

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 28 and any federally promulgated 

WQS.29 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 provisions authorizing 

the use of schedules of compliance for 

WQBELs in NPDES permits (§ 131.15).30

If, during a triennial review, the state or 

authorized tribe determines that the 

federally 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 federally promulgated WQS because 

they would no longer be necessary. 

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 31 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 considered foregoing 

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 

triennial reviews to occur 

‘‘periodically,’’ while some 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 authority to provide a 

longer timeframe for triennial reviews. 

D. Antidegradation 

One of the principal objectives of the 

CWA is to ‘‘maintain the chemical, 

physical and biological integrity of the 

Nation’s waters.’’ 32 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 CFR 

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, 

including 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, ecological 

diversity, and ecosystem services. 

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.33 While preventing 

degradation and maintaining a reliable 

source of clean water involves costs, it 

can be more effective and efficient than 


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51030 Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations 

investing in long-term restoration efforts 

or remedial actions. 

This rule revises the antidegradation 

regulation to enhance protection of high 

quality waters and to promote 

consistency in implementation. The 

new provisions 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. 

This rule establishes requirements in 

the following areas: Identification of 

high quality waters, analysis of 

alternatives, and antidegradation 

implementation methods. In addition to 

the substantive changes described in the 

following section, this rule also includes 

editorial changes that are not 

substantive in nature. For a detailed 

discussion of EPA’s CWA authority 

regarding antidegradation, see the 

preamble to the proposed rule at 78 FR 

54526 (September 4, 2013). 

Identification of Waters for High Quality 

Water (Tier 2) Protection 

What does this rule provide and why? 

Tier 2 refers to a decision-making 

process by which a state or authorized 

tribe decides how and how much to 

protect water quality that exceeds levels 

necessary to support the uses specified 

in Section 101(a)(2) of the Act. The final 

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 

water 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). This rule requires that states’ 

and authorized tribes’ antidegradation 

policies be consistent 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 tribes using 

a parameter-by-parameter approach 

generally identify high quality 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 101(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. States and 

authorized tribes can identify some 

waters using a parameter-by-parameter 

approach and other waters using a water 

body-by-water body approach. 

The 1983 WQS regulation did not 

specify which approach states and 

authorized 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-byparameter 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 weighted 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 

approach 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-bywater 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 implementing 

regulation. In 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 states or authorized 

tribes have excluded waters from Tier 2 

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. 

This 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 parameterby-parameter approach. States and 

authorized tribes using the parameterby-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 tribes’ 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 the public 

on decisions when implementing a 

water body-by-water body approach. 

Consequently, 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 


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Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations 51031 

34Ohio Valley Envtl. Coal. v. Horinko, 279 F. 

Supp. 2d 732, 746–50 (S.D. W. Va. 2003). 

35See section II.G for more information on the 

final rule change related to public participation. 

recommends states and authorized 

tribes document their evaluation of the 

Tier 2 decision, including the factors 

considered and 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.34 In this case, the U.S. 

District Court for the Southern District 

of West Virginia considered 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 Court 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 this rule, EPA 

uses the phrase ‘‘opportunity for public 

involvement’’ rather than ‘‘public 

participation.’’ ‘‘Public participation’’ at 

40 CFR 131.20(b) 35 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 Web site. To 

obtain public input, the state or 

authorized tribe could 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 could 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 additional 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 

authorized tribes can establish a process 

to facilitate public involvement in 

identifying waters as Outstanding 

National Resource Waters (ONRWs). 

An additional requirement at 

§ 131.12(a)(2)(i) provides that states and 

authorized tribes must not exclude a 

water body 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 

necessary 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 

factors 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 impairments, 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. This 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 

(September 4, 2013). 

This 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 final 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 necessary 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 they 

provide all or a subset of their waters 

with Tier 2 protection, by default. Doing 

so will increase the probability that 

these waters will maintain a level of 

resiliency to future stressors. 

This 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 must 

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 


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articulated that states 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, states 

and authorized tribes could still provide 

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 

chooses to include antidegradation 

implementation methods in nonbinding 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), 

permits must 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 potentially 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 disapproval 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 rulemaking burden 

for states and authorized tribes than 

EPA determined was necessary to 

ensure public involvement. EPA 

considered specifying precisely which 

waters must receive Tier 2 protection. 

However, EPA did not include such 

specificity in the rule because there are 

multiple ways that states and authorized 

tribes can make well-reasoned decisions 

on Tier 2 protection based on casespecific facts. 

Analysis of Alternatives 

What does this 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 alternatives, that such a 

lowering is necessary to accommodate 

important economic or social 

development 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, 

the final rule at § 131.3(n) defines 

‘‘practicable’’ to mean ‘‘technologically 

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 for 

implementation. This rule requires that 

states’ and authorized 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 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. This 

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 concerned 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 

‘‘accommodate important economic or 

social development in the area in which 

the waters are located.’’ 

This 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 that 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 disallow lowering of 

water quality and terminate the Tier 2 

review without ever requiring an 

analysis of alternatives. Similarly, a 

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 nondegrading alternative is selected for 

implementation, the state or authorized 

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 alternative to be implemented. 

Commenters expressed concern that the 

proposed rule language implied that 

states and authorized tribes must 

perform the analysis themselves, when 


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36E.g., EPA’s Municipal Technologies Web site, 

which presents technology fact sheets to assist in 

the evaluation of different technologies for 

wastewater (http://water.epa.gov/scitech/wastetech/ 

mtb_index.cfm). 

37See 78 FR 54528 (September 4, 2013). 

38See 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). 

other entities may be best positioned to 

analyze the alternatives. The final rule 

language 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’ decisionmakers, 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 

insufficient 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 

alternatives appropriate for a proposed 

activity from additional existing 

resources.36

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 minimallydegrading 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 implementation, this rule 

finalizes a definition of the word 

‘‘practicable.’’ The definition embodies 

a common sense notion of 

practicability—i.e., an alternative that 

can actually be implemented 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 proposed rule,37 but 

eliminates redundancy and omits ‘‘at 

the site in question’’ in response to 

commenters’ concern that relocation of 

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 lowering of water quality is 

necessary. This requirement applies 

even if the analysis identifies only one 

alternative. States and authorized tribes 

must still make a finding that a lowering 

is necessary if the analysis does not 

identify any practicable alternatives 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 significance 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 

practicable 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 pollutants 

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. 

The final rule requires states’ and 

authorized tribes’ antidegradation 

policies (which are legally binding 

provisions subject to public 

participation) to be consistent with the 

new requirements related 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 

policies 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? 

EPA considered finalizing the 

proposed rule without alteration. EPA 

did not choose this 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 supports 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 this 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). This 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 public. 

Finally, this 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 38 are 

consistent with the federal 

antidegradation requirements at 

§ 131.12. This revision does not expand 

EPA’s existing CWA authority, rather it 

ensures § 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, CWA 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, this 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 

mechanisms to provide such 


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39Ala. Power. v. Costle, 636 F.2d. 323, 360 (D.C. 

Cir. 1979). 

40 Id. 

41Ky. Waterways Alliance v. Johnson, 540 F.3d 

466, 483 (6th Cir. 2008). 

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 Web site postings. 

If a state or authorized tribe adopts 

antidegradation 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 federal 

regulation, will satisfy this requirement. 

Section 131.5(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 

recommends states and authorized 

tribes adopt binding implementation 

methods to provide more transparency 

and consistency for the public and other 

stakeholders and to increase 

accountability. States and authorized 

tribes may find that the Continuing 

Planning Process 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 the 

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 consistent 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 implementing its 

antidegradation policy, whether or not 

the state or authorized tribe formally 

adopts the methods in regulation 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 for 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) 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 quality. 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. Some 

states and authorized tribes have 

difficulty adopting their methods 

because of resource constraints, state or 

tribal laws, or complex rulemaking 

processes. Instead of requiring adoption 

of implementation methods, the final 

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 

approaches to antidegradation to be 

consistent with the final rule. Where a 

state or authorized tribe already has 

established antidegradation 

requirements consistent with this rule, 

EPA does not anticipate the need for 

further changes. 

Many commenters requested 

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 Tier 2 review if they view the 

activity as potentially causing an 

insignificant lowering of water quality. 

This allows states and authorized tribes 

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 

revisions in this 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 DC Circuit explained in Ala. 

Power v. Costle 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.’’ 39 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.’’ 40 The Sixth 

Circuit has also explained that de 

minimis provisions are created through 

an ‘‘administrative law principle which 

allows an agency to create unwritten 

exceptions to a statute or rule for 

insignificant or ‘de minimis’ matters.’’ 41

States and authorized tribes have 

historically defined ‘‘significant 

degradation’’ in a variety of 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 

approach may be different for highly 

toxic or bioaccumulative pollutants). 

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 ‘‘significance 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 

the 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 


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42 Id. (quoting Ala. Power. v. Costle, 636 F.2d. 

323, 361 (D.C. Cir. 1979)). 43 Id. (quoting Greenbaum v. U.S. Envtl Prot. 

Agency, 370 F.3d 527, 534 (6th Cir. 2004)). 44 Id. (quoting Greenbaum v. U.S. Envtl Prot. 

Agency, 370 F.3d 527, 534 (6th Cir. 2004)). 

45 ‘‘Permanent’’ is used here to contrast between 

the time-limited nature of WQS variances 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 reexamined every 3 years to determine if new 

information has become available. If such new 

information indicates that the uses specified in 

section 101(a)(2) of the Act are attainable, the [s]tate 

shall revise its standards accordingly.’’ 

is genuinely de minimis or one of 

administrative necessity.’’ 42

Accordingly, this authority only applies 

‘‘when the burdens of regulation yield a 

gain of trivial or no value.’’ 43 Finally, 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.’’ 44

Unless a state or authorized tribe can 

provide appropriate technical 

justification, it should not create 

categorical exemptions from Tier 2 

review for specific types of activities 

based on a general finding that such 

activities do not result in significant 

degradation. States and authorized 

tribes should also consider 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 authorized 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. WQS Variances 

What does this rule provide and why? 

This 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. States and 

authorized tribes can face substantial 

uncertainty as to what designated use 

may ultimately be attainable in their 

waters. Pollutants 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 

highest attainable condition applicable 

throughout the WQS variance term. For 

a discussion of why it is important for 

states and authorized tribes to include 

the highest attainable condition, see the 

preamble to the proposed rule at 78 FR 

54534 (September 4, 2013). States and 

authorized tribes could use one or more 

WQS variances to require incremental 

improvements in water quality leading 

to eventual attainment of the ultimate 

designated use. 

While EPA has long recognized WQS 

variances as an available tool, the final 

rule provides regulatory certainty to 

states and authorized tribes, the 

regulated community, and the public 

that WQS 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 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 barriers 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 WQS 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) and 303(c)(2). 

This rule reflects this authority by 

explicitly recognizing that states and 

authorized tribes may adopt timelimited WQS with a designated use and 

criterion reflecting the highest attainable 

condition applicable throughout the 

term of the WQS variance, instead of 

pursing a permanent 45 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. When a WQS variance is 

in place, all other applicable standards 

not 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 

term of the WQS variance, the final 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 

Nation’s waters. 

This 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 documentation that 

demonstrates why the WQS variance is 


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46For this reason, states and authorized tribes are 

not required to adopt specific authorizing 

provisions into state or authorized tribal law before 

using WQS variances consistent with the federal 

regulation. 

47See 78 FR 54533 (September 4, 2013). 

48EPA 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. 

49As an alternative to a permit compliance 

schedule, there may be other available mechanisms 

such as an administrative order. 

50 78 FR 54532 (September 4, 2013). 

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 involvement. 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. 

This rule also includes editorial changes 

that are not substantive in nature. 

First, to provide clarity, this 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 body or waterbody segment, but it 

only applies to the permittee(s) or water 

body/waterbody segment(s) specified in 

the WQS variance. The rule defines a 

WQS variance at § 131.3(o) as a timelimited designated use and criterion for 

a specified pollutant(s), permittee(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,46 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. This rule 

adds § 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 implementing technologybased 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. This 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 under 

CWA section 303(d), and for 

establishing a Total Maximum Daily 

Load (TMDL).47 For further clarity, this 

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 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 authorized 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. This rule reinforces the 

requirements 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, this 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 dischargerspecific WQS variance. As an 

alternative to identifying the specific 

dischargers at the time of adoption of a 

WQS variance for multiple dischargers, 

states and authorized 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 

authorized tribes that choose to identify 

the dischargers in this manner will 

subsequently make a list of the facilities 

covered by the WQS variance publicly 

available (e.g., posted on the state or 

authorized tribal Web site). 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 so long as the WQS variance 

is consistent with the CWA and 

§ 131.14.48 A multiple discharger WQS 

variance may not be appropriate or 

practical for all situations and can be 

highly dependent on the applicable 

pollutants, parameters, and/or 

permittees. 

States and authorized tribes must also 

specify the term of any WQS variance to 

ensure that WQS variances are timelimited. States 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 

long as it is only as long as necessary 

to achieve the highest attainable 

condition. If, at the end of the WQS 

variance, the underlying designated use 

remains unattainable, the state or 

authorized tribe may adopt a subsequent 

WQS variance(s), consistent with the 

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 where 

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 

attainable 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 compliance with its NPDES permit.49

(See CWA section [502(17)] for a 

definition of ‘‘Schedules of compliance’’ 

and 40 CFR 122.47).50 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.’’ 

If the compliance schedule exceeds one 

year, the permitting authority must 

include interim requirements and the 

dates for their achievement. 

For example, if the underlying 

criterion requires an NPDES WQBEL of 

1 mg/L for pollutant X, but 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 met the 

requirements of § 131.14. Once 

approved by EPA, the highest attainable 

condition of 3 mg/L is the applicable 


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51 78 FR 54534 (September 4, 2013). 

criterion for purposes of deriving the 

NPDES WQBEL and developing the 

NPDES permit limits and requirements 

for the facility covered by the WQS 

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. The 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 the 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 

informs the permitting authority when 

determining the enforceable sequence of 

actions. 

This rule requires states and 

authorized tribes to provide a 

quantifiable expression of the highest 

attainable condition. This requirement 

is an important feature of a WQS 

variance that facilitates development of 

NPDES permit limits and requirements 

and allows states, authorized tribes, and 

the public to track progress. This rule 

provides states and authorized tribes the 

flexibility to express the highest 

attainable condition as numeric 

pollutant concentrations in ambient 

water, numeric effluent conditions, 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. 

The final rule at § 131.14(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)-specific 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 both 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 proposed rule, states 

and authorized tribes may choose to 

articulate the highest attainable 

condition as the highest attainable 

interim effluent condition.51 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 highest attainable 

condition as the highest attainable 

interim designated use and interim 

criterion. 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 involves an evaluation of all 

pollutant sources. 

Where the state or authorized tribe 

cannot identify an additional feasible 

pollutant control technology, this rule 

provides options for articulating the 

highest attainable condition using the 

greatest pollutant reduction achievable 

with optimization of currently installed 

pollutant control technologies and 

adoption and implementation of a 

Pollutant Minimization Program (PMP). 

The rule makes this option available for 

a WQS variance that applies to a 

specific discharger(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 pollutant 

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 pollutants 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 with other elements that comprise 

the highest attainable 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 NPDES permit 

limits and requirements. 

As discussed later in this section, 

states and authorized tribes must 

reevaluate WQS variances on a regular 

and predictable schedule. To 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 selfimplementing so that if any reevaluation 

yields a more stringent attainable 

condition, that condition becomes the 

applicable interim WQS without 

additional 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 

condition. 

Third, to ensure EPA has sufficient 

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 needed, 

the term for the WQS variance, and the 

highest attainable condition. 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 expect a timelimited exceedance of a criterion when 

removing a dam or during significant 

wetlands, lake, or stream 

reconfiguration/restoration efforts. EPA 

includes ‘‘lake’’ in the regulatory 

language for this factor, on the basis of 

public comments suggesting that the 

rule also apply to lake restoration 

activities. 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 


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variance might not directly 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 CWA section 

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 with conditions, 

as per CWA section 401(d)) that allows 

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 certification 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 

requirements from the WQS variance as 

conditions of its certification. 

For WQS variances to non-101(a)(2) 

uses, this rule specifies that states and 

authorized tribes must document and 

submit a use and value demonstration 

consistent with § 131.10(a) (see section 

II.B for additional discussion on use and 

value demonstrations). 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 demonstrations 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 this rule explicitly makes clear that 

the documentation requirement for 

removing 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 

appropriately 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 anticipates 

implementing throughout the WQS 

variance term to achieve the highest 

attainable condition. During its review 

of the WQS variance, EPA will evaluate 

this 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 the 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 achieved throughout 

the entire WQS variance term. The 

pollutant control activities specified in 

the supporting documentation serve as 

milestones for the WQS variance and 

inform the permitting authority when 

developing the enforceable terms and 

conditions of the NPDES permit 

necessary to implement the WQS 

variance, as required at 40 CFR 

122.44(d)(1). 

The degree of certainty 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 

term 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 identify 

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 the 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 criterion, 

which may include adoption of 

subsequent WQS variances as more data 

are gathered and additional pollutant 

control activities are identified. 

This 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-effective 

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 variance. Nonpoint 

sources can have a significant bearing 

on whether the designated use and 

associated criteria for the water body are 

attainable. It is essential for states and 

authorized tribes to consider 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 state’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, this rule requires 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. Although EPA does not review 

and approve or disapprove the results of 

a WQS variance reevaluation, the results 

could inform whether the Administrator 

exercises his or her discretion to 

determine that new or revised WQS are 

necessary. The rule also requires states 

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 

completion. 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 criterion become the 

applicable WQS for the permittee(s) or 

water body specified in the WQS 

variance without EPA, states or 

authorized tribes taking an additional 

WQS action. In such cases, subsequent 

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 


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52 78 FR 54536 (September 4, 2013). 

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).’’ 52

Some commenters suggested that 10 

years is too long and does not provide 

adequate assurance that the state or 

authorized tribe will periodically 

reevaluate a WQS variance in a publicly 

transparent manner. Other commenters 

suggested that 10 years is too short 

because states often adopt WQS 

variances through conventional 

rulemaking processes and that such a 

maximum 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 

establishing 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 reevaluation 

by states and authorized tribes while 

minimizing rulemaking burden. The 

reevaluation requirements in this 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 

toward 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. Although 

this rule does not specify a maximum 

WQS variance term, states and 

authorized tribes must still identify the 

WQS variance term and provide 

documentation 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. 

WQS variances remain subject to the 

triennial review and public 

participation requirements specified in 

§ 131.20. The final rule requirements 

ensure that the public has the 

opportunity to work with states and 

authorized tribes in a predictable and 

timely manner 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’’ 

include, but are 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 reevaluation 

provides. States and authorized tribes 

can facilitate this coordination by 

publishing and making accessible the 

results of reevaluations. 

While this rule only requires 

reevaluations of WQS variances with a 

term longer than five years, states and 

authorized tribes must review all WQS 

variances during their 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 

reissuance. 

EPA previously promulgated specific 

variance procedures when EPA 

established federal WQS for Kansas 

(§ 131.34(c)) and Puerto Rico 

(§ 131.40(c)). To provide national 

consistency, this rule authorizes the 

Regional Administrator to grant WQS 

variances in Kansas and Puerto Rico in 

accordance with the provisions of 

§ 131.14. 

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 identification 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 requirement for all 

WQS variances that states and 

authorized tribes describe the pollutant 

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 applicable WQS (i.e., 

designated use and criterion). After the 

effective date of this rule, a permit 

authority could also grant a permit 

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 

authorized tribe to adopt a subsequent 


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53See 60 FR 15366 (March 23, 1995); 40 CFR part 

132. 

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 

attainable, 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)(vii)(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 underlying 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 

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 WLA (as it is 

again ‘‘available’’). 

Some commenters questioned what 

would happen if a state or authorized 

tribe does not coordinate a WQS 

variance 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 the 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 periods in the 

permit ensures that the permit will 

derive from and comply with WQS 

throughout the permit cycle. If the state 

or authorized 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 also utilize the Permit 

Actions condition specified in 

§ 122.41(f) to modify a permit and revise 

the WQBEL to reflect the new WQS 

variance. 

Some commenters questioned 

whether states and authorized tribes 

must modify WQS variances that states 

and authorized tribes adopted before the 

effective date of the final rule. States 

and authorized tribes must meet the 

requirements of this rule on the effective 

date of the final rule. As 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 this 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 effective date of 

the final 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 

variance policies and/or procedures. 

Such policies and procedures are not 

required by EPA’s regulation before 

utilizing WQS variances, however, 

where state and authorized tribes have 

them and they are inconsistent with this 

rule, those states and authorized tribes 

must revise such policies and/or 

procedures prior to, or simultaneously 

with, adopting the first WQS variance 

after the effective date of the final 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, 

states 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 

authorized tribes provide a list of the 

dischargers covered under the WQS 

variance on their Web sites or other 

publicly available sources of state or 

authorized tribal information, 

particularly when using multiple 

discharger WQS variances. 

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 each 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 

this rule affects states and authorized 

tribes under the 1995 Great Lakes Water 

Quality Guidance (GLWQG) 53 because 

those requirements are different than 

the WQS variance requirements in the 

final rule. For waters in the Great Lakes 

basin, states and authorized tribes must 

meet the requirements of both 40 CFR 

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 applicable 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 

the final rule in 40 CFR part 131 does 

not specify a maximum term. On the 

other hand, because GLWQG WQS 

variances cannot exceed five years, the 

requirements in the final rule that 

pertain to conducting reevaluations (for 

WQS variances greater than five years) 

are not applicable. 


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

172 (April 16, 1990). 

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 EPA’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 upon appropriate 

technical and scientific data and 

analyses. . . .’’ Because WQS variances 

are time-limited designated uses and 

criteria, this requirement applies to 

WQS variances. States 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 authorized tribe seeks to 

address. 

F. Provisions Authorizing the Use of 

Schedules of Compliance for WQBELs in 

NPDES Permits 

What does this rule provide and why? 

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 affirmatively authorize its use 

in its WQS or implementing 

regulations.54 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 compliance 

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 schedules by states and 

authorized tribes provides 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 submitted them to EPA for 

approval as WQS pursuant to CWA 

section 303(c). Other states have not yet 

adopted compliance schedule 

authorizing provisions. A permit could 

be subject to legal challenge where a 

state and authorized tribe decide to 

authorize permit flexibility using permit 

compliance schedules, but do not have 

a compliance schedule authorizing 

provision approved by EPA as a WQS. 

Section 131.15 in this 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. This rule adds § 131.5(a)(5) 

to explicitly specify that EPA has the 

authority to determine whether any 

provision authorizing the use of 

schedules of compliance for WQBELs in 

NPDES permits adopted by a state or 

authorized tribe is consistent with the 

requirements at § 131.15. This rule 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 

state 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. 

Some 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 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, its 

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 

compliance 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 regulations 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 satisfying the final rule. 

Instead, the state or authorized tribe can 

submit the provision to EPA with an 

Attorney General or appropriate tribal 

legal authority certification. Moreover, 

consistent with § 131.21(c), any permit 

compliance schedule authorizing 

provision that was adopted, effective, 

and submitted to EPA before May 30, 

2000, is applicable for purposes of 

§ 131.15. 

This 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. 

This rule does not address those other 

mechanisms. 

What did EPA consider? 

EPA considered finalizing § 131.15, as 

proposed. Given the comments 


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55 40 CFR 122.44(d)(1); 122.44(d)(1)(vii)(A). 

indicating that ambiguity 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 address the 

commenters’ concern and streamlined 

the text of the proposed rule without 

making substantive changes. EPA also 

considered foregoing the addition of 

§ 131.15. Many 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 NPDES 

permits and permit requirements for 

which permitting authorities can 

include permit compliance schedules. 

The regulation does not narrow that 

universe, nor does it preclude other 

appropriate uses of permit compliance 

schedules as provided for in § 122.47. 

The new § 131.15 requirements only 

apply to the authorization of 

compliance schedules for WQBELs in 

NPDES permits. Such WQBELs are 

designed to meet WQS established by 

the state or authorized tribe and 

approved by EPA under CWA section 

303(c).55 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 applicable 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 or 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 this rule provide and why? 

Regulatory provisions can only be 

effective if they are clear and accurate. 

Even spelling and grammar mistakes, 

and inconsistent terminology can cause 

confusion. This rule, therefore, corrects 

these 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), 131.12(a)(2), 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 preexisting errors, it did not re-examine the 

substance of these regulatory provisions. 

Thus EPA did not reopen these 

regulatory provisions. 

With regard to the revision at 

§ 131.5(a)(2), the final 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 criteria. By linking the two 

regulatory sections, this rule makes 

clear that this provision does not 

contradict the requirements and 

flexibilities provided in § 131.11. 

This rule at § 131.12(a)(2) correctly 

cites to the CWA language and makes no 

other changes. EPA proposed revising 

‘‘assure’’ to ‘‘ensure,’’ however, the final 

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,’’ EPA 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. However, § 131.12(a)(2), 

addresses water quality, 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 provision. 

This 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 provide 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. Third, 

EPA’s corresponding 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 the 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 

§ 131.20(a); (2) when revising WQS as a 

result of reviewing WQS per § 131.20(a); 

and (3) whenever revising WQS, 

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 ‘‘reviewing 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 commenter 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 


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the challenges that states and authorized 

tribes 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 the public and 

intergovernmental coordination with 

local, state, federal, and tribal entities 

with an interest in water quality issues 

is an important component 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 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 the 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 participation and adequate 

time; and prepare a transcript, 

recording, or other complete record of 

the hearing proceedings. See 40 CFR 

25.5 for the actual list of federal public 

hearing requirements. State and tribal 

law may include additional 

requirements for states and authorized 

tribes to meet 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 the 

final rule, beyond the burden and cost 

of the WQS regulation already in place. 

EPA’s estimate is higher than the 

estimate of the proposed rule for two 

reasons unrelated to any substantive 

change in requirements. First, EPA 

obtained more precise estimates of 

burden and costs. EPA received many 

comments suggesting that EPA 

underestimated the burden and cost of 

the proposed rule. States specifically 

requested to meet with EPA to provide 

additional information for EPA to 

consider. EPA engaged the states and 

incorporated the information provided 

into the final economic analysis. The 

higher estimate is also partly due to EPA 

using known data to extrapolate burden 

and costs to states, territories and 

authorized tribes where data were 

unavailable. EPA describes the method 

of extrapolation in detail in the full 

economic analysis available in the 

docket of the final 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 entities as a result of 

changes to WQS that states and 

authorized tribes adopt based on the 

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 this 

final rule that could result in costs to 

point sources and nonpoint sources. 

EPA’s economic analysis and an 

explanation for how EPA derived the 

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 burden and cost of this 

final rule using the same basic 

methodology used to assess the 

potential incremental burden and cost 

of EPA’s proposed rule, including: (1) 

Identifying the elements of the 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 the final rule; 

and (3) estimating the cost associated 

with those additional labor hours. 

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 

adopting 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 must 

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, the final rule no longer 

includes a maximum WQS variance 

duration 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, the final 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 information obtained 

independently by EPA and in response 

to stakeholder feedback. 

The potential incremental burden and 

cost of the final 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, revising WQS 

variance procedures if the state or 

authorized tribe has chosen to adopt 

such a procedure, or adopting a 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 which 

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 

opportunity for public involvement 

when deciding which waters will 

receive Tier 2 antidegradation 

protection when using a water body-bywater body approach; documenting and 


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51044 Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations 

56See 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. 

keeping in the public record the factors 

the state or authorized tribe considered 

when deciding 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 submission 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 the final 

rule that a UAA is not required when 

removing a non-101(a)(2) use because 

states and authorized tribes continue to 

have the discretion to conduct a UAA 

when removing such uses. 

Estimates of the potential incremental 

burden and cost of this final rule are 

summarized in the following tables. 

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 48,015–143,400 2.37–7.02 

WQS 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. 1Although 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 activities 

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 7,080–14,150 3.4–6.8 $1.05–$3.95 13,900–52,320 6.7–25.2 

1Assuming 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) 3Although 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 for the Water Quality Standards Regulatory Revisions (Final 

Rule) for the potential incremental burden and cost using a seven percent discount rate. 4Total costs to the Agency divided by hourly wage rate ($75.41 per hour). 

5Burden 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). 

COMBINED SUMMARY OF POTENTIAL INCREMENTAL BURDEN AND COST TO STATES, 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 Tribes ................ 54,450–108,900 $2.67–$5.34 $0.18–$0.36 106,425–402,780 $5.24–$19.73 

Agency ................................................... 7,080–14,150 0.53–1.07 0.04–0.07 13,900–52,320 1.05–3.95 

Total ................................................ 61,530–122,050 3.20–6.40 0.22–0.43 120,325–455,100 6.29–23.68 

Note: Individual annual cost estimates do not add to the total because of independent rounding. 1Although 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 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. 

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 total annual 

cost for this final rule to range from 

$6.51 million per year ($0.22 million 

per year + $6.29 million per year) to 

$24.11 million per year ($0.43 million 

per year + $23.68 million per year).56


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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 

effectively 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 

reducing regulatory uncertainty and 

increasing overall program 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 in water quality and a 

variety of economic benefits associated 

with these improvements, including the 

availability of clean, safe, and affordable 

drinking water sources; 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, 

stakeholders and the public will also 

benefit from the open public dialogue 

that results from the additional 

transparency and public participation 

requirements included in this rule. 

Because 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 the resulting 

benefits. 

IV. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at http://www2.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is a significant regulatory 

action that was submitted to the Office 

of Management and Budget (OMB) for 

review. Any changes made in response 

to OMB recommendations have been 

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 Revisions (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 2449.02. 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 

enforceable 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). This 

rule requires states and authorized 

tribes to submit certain additional 

information to EPA. This mandatory 

information collection ensures EPA has 

the necessary information to review 

WQS and approve or disapprove 

consistent with the rule. The goals of 

the rule can only be fulfilled by 

collecting this additional information. 

Due to the nature of this rule, EPA 

assumes that all administrative burden 

associated with this rule, summarized in 

section III, is associated with 

information collection. 

Respondents/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 EPAapproved 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 respondents: A 

total of 96 governmental entities are 

potentially 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 states 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 

124,575–439,080 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 Request for Water Quality 

Standards Regulatory Revisions (Final 

Rule)’’ in the docket for this rule. 

Total estimated cost: Total estimated 

annual incremental costs range from 

$6.13 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 

quality 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 

jurisdictions, are not directly regulated 

by this rule. This rule will not impose 

any requirements on small entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This rule does not contain a federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments, in the aggregate, 

or the private 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 the 

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 national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 


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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 this rule. 

Between September 2013 and June 

2014, EPA consulted with 

representatives 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 

concern 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 regulations in 

these areas are not unduly burdened by 

the regulatory revisions. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This 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, 50 Indian tribes have 

been approved for treatment in a 

manner similar to a state (TAS) for CWA 

sections 303 and 401. Of the 50 tribes, 

40 have EPA-approved WQS in their 

respective jurisdictions. All of these 

authorized tribes are impacted by this 

regulation. However, this rule might 

affect other tribes with waters adjacent 

to waters with federal, state, or 

authorized tribal WQS. 

EPA consulted and coordinated with 

tribal officials consistent with EPA’s 

Policy on Consultation and 

Coordination with Indian Tribes early in 

the process of developing this regulation 

to allow 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 

regulatory revision. Tribes expressed the 

need for additional guidance and 

assistance in implementing the 

proposed rulemaking, specifically for 

development of antidegradation 

implementation methods and 

determination of the highest attainable 

use. EPA considered the burden to 

states and authorized tribes in 

developing this rule and, when possible, 

has provided direction and flexibility 

that allows tribes to address higher 

priority aspects of their WQS programs. 

EPA also 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 

This action is not a ‘‘significant 

energy action’’ 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 this rule will 

not have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations, 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 and, therefore, does not directly 

affect a specific population or 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). 

List of Subjects in 40 CFR Part 131 

Environmental protection, Indians— 

lands, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Water pollution control. 

Dated: August 5, 2015. 

Gina McCarthy, 

Administrator. 

For the reasons stated in the 

preamble, EPA amends 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 A—General Provisions 

■ 2. In § 131.2, revise the first sentence 

to read as follows: 

§ 131.2 Purpose. 

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. In § 131.3: 

■ a. Revise paragraphs (h) and (j). 

■ b. Add paragraphs (m), (n), (o), (p), 

and (q). 

The revisions and additions 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 expected 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 

Islands, and Indian Tribes that EPA 

determines to be eligible for purposes of 

the water quality 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 


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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 sub-categories 

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. 

(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. In § 131.5: 

■ a. Revise paragraphs (a)(1) and (2). 

■ b. Redesignate paragraphs (a)(3) 

through (5) as paragraphs (a)(6) through 

(8). 

■ c. Add paragraphs (a)(3) through (5). 

■ d. Revise newly designated paragraph 

(a)(6). 

■ e. Revise 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; 

(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 revising 

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 (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 factors listed in 

paragraphs (a)(1) through (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. In § 131.10: 

■ a. Revise paragraphs (a), (g) 

introductory text, (j), and (k). 

■ b. Remove and reserve paragraph (e). 

The revisions read as follows: 

§ 131.10 Designation of uses. 

(a) Each State must specify 

appropriate water uses to be achieved 

and protected. The classification 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 including 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) [Reserved] 

* * * * * 

(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 paragraph (j) of 

this section 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 

defined in § 131.3(m). 

* * * * * 

(j) A State must conduct a use 

attainability analysis as described in 

§ 131.3(g), and paragraph (g) of this 

section, whenever: 

(1) The State designates for the first 

time, or has previously designated for a 

water body, uses that do not include 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 requires 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 

specified in section 101(a)(2) of the Act; 

or 

(2) The State designates a subcategory 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 non101(a)(2) use. In this instance, as 

required by paragraph (a) of this section, 

the State must submit documentation 

justifying how its consideration of the 

use and value of water for those uses 

listed in paragraph (a) appropriately 

supports the State’s action, which may 

be satisfied through a use attainability 

analysis. 

■ 6. In § 131.11, revise 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 

method 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 the standards or may 

be included in documents generated by 

the State in response to the Water 


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Quality Planning and Management 

Regulations (40 CFR part 130). 

(b) Form of criteria: In establishing 

criteria, States should: 

* * * * * 

■ 7. In § 131.12: 

■ a. Revise the section heading and 

paragraphs (a) introductory text and 

(a)(2). 

■ b. Add paragraph (b). 

The revisions and additions 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 

water quality, the State shall assure 

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 management practices 

for nonpoint source control. 

(i) The State may identify waters for 

the protections described in paragraph 

(a)(2) of this section on a parameter-byparameter basis or on a water body-bywater body basis. Where the State 

identifies waters for antidegradation 

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 paragraph (a)(2) 

of this section will be afforded to a 

water body, and the factors considered 

when making those decisions. Further, 

the State shall not exclude a water body 

from the protections described in 

paragraph (a)(2) of this section solely 

because water quality does not exceed 

levels necessary to support all of the 

uses specified in section 101(a)(2) of the 

Act. 

(ii) Before allowing any lowering of 

high water quality, pursuant to 

paragraph (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 development 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 identifies one or 

more practicable alternatives, the State 

shall only find that a lowering is 

necessary if one such alternative is 

selected for implementation. 

* * * * * 

(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 methods 

available to the public. 

■ 8. Add § 131.14 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 public 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 permittee(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 criterion addressed by the WQS 

variance, unless the State adopts and 

EPA approves a revision to the 

underlying designated use and criterion 

consistent with §§ 131.10 and 131.11. 

All other applicable standards not 

specifically addressed by the WQS 

variance remain applicable. 

(3) A WQS variance, once adopted by 

the State and approved by EPA, shall be 

the applicable standard for purposes of 

the Act under § 131.21(d) through (e), 

for the following limited purposes. An 

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 State may not adopt WQS 

variances if the designated use and 

criterion 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 the WQS variance. 

(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 greatest 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. 

(B) For WQS variances applicable to 

a water 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 

reflect 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. 

(iii) A statement providing that the 

requirements of the WQS variance are 


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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 

paragraph (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. 

(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 WQS 

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: 

(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 preclude 

attainment of the designated use and 

criterion while the actions are being 

implemented. 

(B) For a WQS variance to a non101(a)(2) use, the State must submit 

documentation justifying how its 

consideration of the use and value of the 

water for those uses listed in § 131.10(a) 

appropriately supports the WQS 

variance and term. A demonstration 

consistent with paragraph (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 

through a Pollutant Minimization 

Program, which serve as milestones for 

the WQS variance. 

(iii) In addition to paragraphs (b)(2)(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 towards 

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) of 

this chapter for the 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. 

■ 9. Add § 131.15 to read as follows: 

§ 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 State 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 

Act. 

Subpart C—Procedures for Review and 

Revision of Water Quality Standards 

■ 10. In § 131.20, revise 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 through 131.15 and Federally 

promulgated water quality standards 

and, as appropriate, 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 available. If such new 

information indicates that the uses 

specified in section 101(a)(2) of the Act 

are attainable, the State shall 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 explanation when it submits 

the results of its triennial review to the 

Regional Administrator consistent with 

CWA section 303(c)(1) and the 

requirements of paragraph (c) of this 

section. 

(b) Public participation. The State 

shall hold one or more public hearings 

for the purpose 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 analyses shall 

be made available to the public prior to 

the hearing. 

* * * * * 

■ 11. In § 131.22, revise paragraph (b) to 

read as follows: 

§ 131.22 EPA promulgation of water 

quality standards. 

* * * * * 

(b) The 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 is necessary to meet the 

requirements of the Act. To constitute 

an Administrator’s determination that a 


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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 constitutes an 

Administrator’s determination under 

section 303(c)(4)(B) of the Act. 

* * * * * 

Subpart D—Federally Promulgated 

Water Quality Standards 

■ 12. In § 131.34, revise 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. 

■ 13. In § 131.40, revise 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. 

[FR Doc. 2015–19821 Filed 8–20–15; 8:45 am] 

BILLING CODE 6560–50–P 


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