Water Quality Standards Regulatory Clarifications Proposed Rule

September 24, 2013 Public Webinar

Questions and Answers

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Introduction

On September 24, 2013, the U.S. Environmental Protection Agency (EPA) presented an overview of the

Water Quality Standards (WQS) Regulatory Clarifications Proposed Rule. Participants asked clarifying

questions, and EPA responded to the questions below. The appendix provides a list of questions that

EPA did not answer. The September 24 webinar had 338 registered participants, and approximately 241

parties joined the webinar. It is possible that participants from the same organization or agency joined

the webinar from a single location.

Designated Uses

Floyd Gilzow: Doesn’t highest attainable use (HAU) also encourage states to categorize the beneficial use

of a water body at one step higher than what it is currently meeting?

Response: It could. The goal is to make sure that the state has designated what is the HAU. This would

include an evaluation of what is attainable given the stressors, rather than what is actually attained.

Mike Ell: Does the issue of HAU, as it relates to aquatic life use, relate in any way to the concept of tiered

aquatic life uses (TALU)?

Response: It does in the sense where a state has adopted TALU, the state has reflected a variety of

aquatic life uses that can be designated in the state. The TALU would be available to choose from when

selecting the HAU.

Lyman Welch: You mentioned secondary contact uses. What uses does EPA consider to be secondary

contact? Is kayaking primary or secondary contact use?

Response: EPA does not have a definition of secondary contact. States define secondary contact in their

WQS. Generally, primary contact is understood to include activities where there would be incidental

ingestion. Secondary contact is understood to include activities in which incidental ingestion is unlikely.

EPA understands that certain kinds of kayaking, such as whitewater kayaking, are considered to be

primary contact.  

Michelle Moses: So, no use attainability analysis (UAA) is required to remove a use that protects public

water supplies? What is the relationship between section 101(a) uses and 303(c) uses?

Response: To answer the first question, EPA’s current position is that if a state wants to remove a non‐

101(a)(2) use, the state should provide a demonstration. However, that demonstration does not have to

be rooted in part 131.10(g). The demonstration should consider the use and value of the water. In

response to the second question, the uses specified in Clean Water Act (CWA) section 101(a)(2) include

the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water. The

uses specified in CWA section 303(c) include the 101(a)(2) uses, as well as other uses that are considered

non‐101(a)(2) uses such as public water supply, navigation, irrigation, and others.

Don Essig: For HAU, does EPA have a vision for how many uses there are, or how refined uses must be?

For example, one could say the rainbow consists of six colors, ROYBGV, or an infinite spectrum.

Response: EPA’s intent is for states and tribes to have flexibility to choose the best approach to

articulate the HAU. EPA is not trying to limit flexibility in choosing the HAU. The Preamble provides

examples for how to possibly articulate the HAU (e.g., existing designated use structure, adopting new

uses, site‐specific use), but states and tribes are not limited by the examples provided in the Preamble.
WQS Regulatory Clarifications Proposed Rule, September 24, 2013 Public Webinar

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Paula Maccabee: What is EPA authority if WQS do not protect existing 101(a)(2) uses?

Response: If a use is attainable but not currently designated, the state or tribe should revise its WQS

accordingly. If there is an existing use that is not designated, a state should designate that use.

Paula Maccabee: Is the new language in section 131.20 about states reexamining water quality criteria

restricted to protecting designated uses, rather than protecting designated or existing uses? If so,

explain.

Response: If a state has an attainable use that is not designated, the state would want to revise its WQS

to designate that use.  

Chris Hornback: What were EPA’s primary reasons for the proposal regarding HAU? Were states not

doing this? Other reasons?

Response: EPA’s concern was that in some cases a state or tribe would conduct a UAA that appropriately

considered the uses and tied uses to one of the 131.10(g) factors, but the state or tribe would not

identify the next best use that could be attained.  

Water Quality Standards Variances		

Stephen Frank: Can a WQS variance be utilized where total maximum daily loads (TMDLs) are not

achievable?

Response: Yes, it can be. If a permittee is given a wasteload allocation (WLA) that is not achievable, the

permittee can demonstrate that a variance is needed and ask the state to grant the variance. If the state

grants it and EPA approves it, the permittee’s water quality‐based effluent limit (WQBEL) would be

written to implement the variance and the WLA would not be available until the variance expires.

Nancy Sonafrank: When is a variance preferred over a compliance schedule?

Response: A permit compliance schedule has strict eligibility requirements—it is only appropriate where

a permittee knows what it needs to do but needs time to install treatment technologies. A variance is

appropriate where there is some uncertainty. Examples of uncertainty might include answering

questions such as: What does a permittee need to do to get to the designated use? Is the underlying

designated use attainable? If the designated use is not attainable, what is the HAU?

Lyman Welch: Will this language apply to streamlined mercury variances used in the Great Lakes?

Response: Another way to ask this question is whether these provisions apply to current variances and

how the provisions will affect those states covered by the Great Lakes Initiative (GLI). For those

variances already adopted and approved, EPA is relying on the triennial review process. A state would

need to look at whether the information available supports maintaining the variance. If the information

shows that the variance is not justifiable, the state would retire the variance. EPA encourages states to

revisit the variances during the triennial review, including the public participation process. To answer

the question of how the revisions affect states with waters covered by the GLI (CFR Part 132). EPA’s

WQS regulation is the national part and can be found at CFR Part 131. The Great Lakes‐specific

regulation indicates that the waters that drain to the Great Lakes have to meet parts 131 and 132. As a

practical implication, where the Great Lakes regulation is more stringent than the national regulation,

Great Lakes waters need to meet the provisions under parts 131 and 132—some requirements of 132

are more stringent. In some cases, the flexibilities offered in the national rule will not be applicable to

waters in the Great Lakes basin.
WQS Regulatory Clarifications Proposed Rule, September 24, 2013 Public Webinar

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Paula Maccabee: Can a variance be used for a new or increased discharge that lowers water quality

unrelated to restoration activities?

Response: Another way to ask this question is whether variances can be used for new or increased

discharges. EPA is focused on how the variance would affect current water quality. The variance could

apply to a new or increased discharge, but it must not allow for lowering current water quality.

Rik Rasmussen: What about situations where the WQS is not able to be attained in 10 years, especially

for legacy pollutants like mercury, where it may take over 10 years to attain the WQS?

Response: In its proposal, EPA recognizes that there are complex pollution problems that need more

than 10 years. If a state can justify longer, at the 10‐year mark, it just goes through the public process

talking about what has happened so far and what is left to do. As long as the variance need is still

demonstrated, the variance could continue to be approvable.  

Rachel Conn: Will there be guidance as to how long variances can be in effect (guidance/requirements

for how expiration dates are set)?

Response: The proposed rule offers the maximum of 10 years, but EPA expects the timeframe to be set

based on what is reasonable and justifiable. Although the regulation allows for terms up to 10 years, if

the variance demonstration shows that the variance is only needed for 3 years, the variance would

expire at that time.

Mike Ell: Do variances need to be tied to a National Pollutant Discharge Elimination System (NPDES)

permit or can a variance be applied to a water body/pollutant combination in lieu of a more permanent

UAA?

Response: A variance can be discharger‐specific, apply water body‐wide, or be pollutant‐specific. EPA

would say that the purpose of the variance is to lock in what is attainable and work toward progress in

getting to the designated use. If a state wanted to do a permitted use change in relation to a specific

pollutant, the state could structure that use change in that way. A variance is intended to be time

limited. In terms of whether tied to NPDES permit, generally all variances are implemented through an

NPDES permit for point source discharges. The state determines implementation procedure for

nonpoint sources.  

Hickman Jane: Re: WQ body variance and justification showing best management practices (BMPs) MAY

be used to control nonpoint sources, must state show nonpoint sources will be required to use such

BMPs?

Response: A broader question is whether, if the regulation is going to require states to show what BMPs

could be used to control nonpoint sources, states have to show that they will require those nonpoint

source controls. The rule does not require that states implement specific nonpoint source controls, but

the analysis of what BMPs could be put in place needs to be available for discussion during the public

participation process. For a variance renewal, the public record needs to include documentation of what

has been done to address nonpoint sources. EPA is looking for progress. EPA thinks that variances work

best where all parties come to the table and figure out a path toward progress. For a water body

variance, it is likely that because nonpoint sources are at the table, BMPs will be implemented.  

Floyd Gilzow: Can you provide more insight on the Agency’s thinking about encouraging WQS that

cannot be achieved by current or reasonably projected technology and dealing with the situation

through a variance? Why not permit states to limit WQS to the current limit of technology? Why is limits

of technology a factor?
WQS Regulatory Clarifications Proposed Rule, September 24, 2013 Public Webinar

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Response: The factors at 131.10(g) are based on the premise that no one has the right to pollute and

that discharges and pollution are the stressors. Under the CWA, EPA is trying to achieve attainable water

goals. The 131.10(g) factors are used to show what is not attainable. If there is a limit of technology

issue, a discharger could consider whether there would be a substantial and widespread economic

impact if a facility were to close. If by closing there would be a widespread impact, then that might be

justification for the variance.

Henry Barbaro: Is there a minimum water body size, e.g., intermittent stream, to be issued a WQS

variance?

Response: No, there is no specification of what is too big or too small. A variance could be applied to just

a segment. This decision would depend on whether it is applicable to the discharger versus to the water

body.

Dan Woltering: Would you address how a point source discharger would request a variance to allow the

pilot testing of a new technology intended to improve a treatment process or treatment outcome using

new equipment?

Response: It depends on the situation in the water body right now. If the water body is not meeting its

WQS, and the facility is not able to meet its WQBEL, the facility might use one of the factors to show

why it cannot attain the standard immediately, and that time to do testing is needed. If the facility and

water body are meeting the criteria, but the facility is trying to improve efficiency, a variance might not

be the right tool. The facility would need to work with the NPDES permitting program or other state

program.

Paula Maccabee: Would the new language in 131.10(k) and 131.14(b)(2) allow a variance without a UAA

to remove a designated use that is not a 101(a)(2) use, even if removing that use would result in

impairment of aquatic life?

Response: Variances are not supposed to make water quality worse. The way the regulation is written, if

a state is removing a non‐101(a) for a limited time period, the state is not required to use one of the

seven factors, but the state needs to provide a demonstration of the water’s use and value. When EPA

approves variances, it is evaluating the impact of changing the expectation for that specific pollutant. If

there is a need for more stringent requirements, a state might not want to use variances.

Michelle Moses: Does a variance apply to a state’s 401 certification? How would such a variance be

revisited if, for instance, there is no NPDES permit required and therefore no 5‐year permit term?

Response: Variances exist outside an NPDES permit—a variance is a WQS provision and expected to be

submitted to EPA for review/approval. The expiration date is independent of the permit term. If a state

has adopted a variance in WQS and EPA has approved it, that variance is applicable for section 401 and

402 permitting. To revisit it, the state would look at whether the general variance is still appropriate. If it

is, the variance would be useful for 401 permitting. If not, the state would expire the variance and say it

is not needed and that the underlying designated use and criteria would be applicable for 401 and 402.  

Antidegradation

Brian Englund ADEC: Can a state exclude a water from Tier 2 if SEVERAL of the uses are not attained?

Response: Yes, if none of the 101(a)(2) uses are attainable. If a 101(a)(2) use is attained, that water

cannot be excluded from Tier 2 on the basis of that impairment.
WQS Regulatory Clarifications Proposed Rule, September 24, 2013 Public Webinar

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Kimberly Corts: What is considered degrading? Minimal changes and variations in water quality occur

frequently due to natural conditions, such as temperature and flow. How does EPA expect states to

quantify degradation? This has been an ongoing struggle for states.

Response: When EPA looks at antidegradation, EPA is looking at more permanent degradation of the

water quality. EPA recognizes that there are natural variances in water quality. The term degradation is

intended to mean that something has been done to lower the water quality such that it will not go back

to the way it was.

Don Essig: What is considered to be practicable? Is this defined?

Response: The term practicable is defined in the Preamble: “For these purposes, the term practicable

means that the alternatives considered must be available for the proposed activity, technologically

possible, able to be done or put into practice successfully at the site in question, and economically

viable.”

Yan Wang: 131.5(a)(3) seems to say a state can choose to adopt implementation procedures. 131.12(b)

appears to say that EPA requires states to develop, but not necessarily adopt, implementation

procedures. If correct, where does EPA derive authority to require implementation procedures be made

available?

Response: In the proposal, EPA requests comment about whether EPA should require adoption of

implementation procedures, but EPA proposes the expectation that implementation methods be

publicly available and transparent. Like any other WQS, EPA believes that how a state implements its

antidegradation policies is extremely important. If they are not transparent, it is difficult for the public to

know what is needed to protect waters or what a state will do to protect waters. Without transparency,

EPA has seen the public and other stakeholders challenging state action, because the public does not

understand the methods that the state is using. States and EPA might likely see fewer challenges to

permits or other petitions is the public knows about the implementation methods the state is using.

Triennial Reviews

Chad Brown: What if the state is in the middle of a major rulemaking when year 3 comes up? Would we

have to do a triennial review public notice in the middle of the rulemaking? In many states it is taking

much longer than 3 years to conduct a rulemaking. We have assumed the triennial review count would

occur as soon as a rulemaking is adopted by the state and approved by EPA. That’s when we start the 3‐

year clock.

Response: The purpose of a triennial review is to make sure that a state is reviewing its WQS and making

appropriate modifications. If a state is in the middle of a rulemaking, one could assume that the state

has considered what modifications are needed and is working through the public process. EPA

understands that a rulemaking process may take several years. EPA is thinking about 3 years from when

a state has changed its WQS to when the state revisits them to see if they are still appropriate.

Michelle Moses: Pursuant to 131.6, will EPA review implementation methods for nonpoint sources

(assuming the state has adopted such methods) and review whether those methods are consistent with

the antidegradation policy?

Response: If implementation methods are adopted, EPA will review and approve/disapprove them.

EPA’s authority is limited in terms of what it can require a state to do regarding nonpoint source

controls. A state has significant discretion in terms of nonpoint sources.  

Gayle Killam: Given that the states/tribes may take on significant rulemakings that only address one area

(e.g., one complicated criteria needing revision, such as temperature or nutrients), your previous answer
WQS Regulatory Clarifications Proposed Rule, September 24, 2013 Public Webinar

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seemed to indicate that the more comprehensive evaluation of adequacy of WQS could be delayed

beyond 3 years each time such a specific rule is tackled.  

Response: In terms of the 3 years, if the state is doing a rulemaking on one particular thing but has not

substantively evaluated the WQS, someone could petition EPA. Another option is for stakeholders to

work with the state to know when the state intends to address those things. EPA is aware of the

resources constraints that a state might have and has often allowed triennial reviews on a rotating basin

approach, rather than expecting a state to revise its WQS all at once. If a state is going through a

rulemaking process, then that is different from situations where a state is not undertaking any review of

its WQS.  

Administrator’s Determination		

No questions were asked on this topic.

Compliance Schedule Authorizing Provisions		

Jason Childress: Can a compliance schedule be used in a general permit or just an individual permit?

Response: In either case, in order for a state to use a compliance schedule, the state needs to be

authorized to do so. If a state wants to use a compliance schedule, the state needs to have adopted a

compliance schedule authorizing provision that is reviewed by EPA and approved as a WQS.  

Mark Tomasek: does the schedule of compliance (SOC) authorization have to be included in state WQS

rules? What about general authority to use SOCs included in state permitting rules?

Response: In the Preamble, EPA tries to be clear that although states must have a compliance schedule

authorizing provision that is reviewed and approved by EPA, the authorizing provision is not required to

be in the state WQS itself. For those states that may have an authorizing provision in another part of

state regulation (e.g., in permitting), the state needs to submit that particular rule language to EPA with

an attorney general certification. EPA can make an approval based on that information.

Lyman Welch: Will your compliance schedule rule set a maximum length of time allowed by a

compliance schedule, like the 10 years set for a variance?

Response: No, the compliance schedule authorizing provision rule does not set a maximum length of

time for a compliance schedule. Currently EPA’s position is dictated by the rule itself—a compliance

schedule ensures compliance with the effluent limit as soon as possible. This is done on a case‐by‐case

basis.  

Mark Tomasek: The proposed language at 131.15 does not appear to limit the use of SOCs to WQS

adopted after 1977, which has been asserted as being a limit under the CWA per the Star‐Kist Caribe

decision. Does EPA interpret the SOC authority as available for pre‐1977 standards?

Response: EPA continues to interpret the CWA as specifying that compliance schedules are not available

for WQS adopted prior to July 1, 1977. This tool is available only for WQS that are new or revised after

1977. When EPA reviews authorizing provisions, its review will be based on whether provisions are

consistent with the CWA.  

Economic Analysis

Floyd Gilzow: Can you give us an example of any other water rule where changes in EPA rules resulted in

zero cost to the regulated community and only cost to state and tribal regulators?

Response: This rule does not say that there is no cost to the regulated community. Any costs are an

indirect result because those costs depend on what the state does as result of this national proposal. So,

that example does not exist.
WQS Regulatory Clarifications Proposed Rule, September 24, 2013 Public Webinar

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Other Clarifying Questions

Kimberly Corts: Is there an underline‐strikeout version of the rule available? This will assist reviewers

with identifying the exact changes that are being proposed by EPA.

Response: Redline strikeout of the rule is available on EPA’s website:

http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm.

Various participants: Are the slides for today's webinar available? If so, where and/or how may I obtain

them?

Response: Please request today’s presentation by emailing: WQSRegulatoryClarifications@epa.gov. EPA

may also post a copy of the webinar on the rulemaking website:

http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm.

Comment: As a reminder, your clarifying question may be selected for response during one of the Q&A

sections of today’s webinar. Questions or comments that go beyond clarifying the contents of the

proposed rule or basic background will not be selected. In addition, EPA may not be able to respond to

all submitted questions. If your clarifying question is not answered by the end of this webinar, please

email: WQSRegulatoryClarifications@epa.gov or call 202‐566‐1860 for additional information.

Comment: Today’s webinar is not being recorded. EPA may make a recorded version of the webinar

slides available in the future at the website for the proposed rule. Please request today’s presentation

by emailing: WQSRegulatoryClarifications@epa.gov. EPA may also post a copy of the webinar on the

rulemaking website: http://water.epa.gov/lawsregs/lawsguidance/wqs_index.cfm.  
WQS Regulatory Clarifications Proposed Rule, September 24, 2013 Public Webinar

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Appendix A: Questions Not Discussed in the Webinar

 Paula Maccabee: What if the designated use is not a 101(a)(2) use, but the pollutant of concern

is toxic to aquatic life, so that removing the designated use will impact an existing 101(a)(2) use?

 Michelle Moses: Why are the 303(c) uses not the ones that would apply under the UAA?

 Kimberly Corts: You mentioned that some demonstration is required to remove non‐101(2)(a)

uses. Who establishes what the "demonstration" must consist of? Regional offices have been

varying on what is required.

 Lincoln Loehr: If natural conditions exceed human health water quality criteria, should the uses

associated with harvesting and consumption be changed? Arsenic is the issue and our waters all

exceed the National Toxics Rule criteria of 0.14 ppb and 0.018 ppb.

 Jackie Wilson: You indicated EPA approves variances. How does EPA factor variances into ESA

consultations on WQS? Does EPA reinitiate consultation when it proposes to approve a

variance?

 Don Essig: Whoa, in Idaho methylmercury is a human health criterion associated with recreation

use, I am confused now.

 Ambrie Johnson: Should the antidegradation revision include quantity of water protection?

 Lyman Welch: Many states are not reviewing standards every 3 years as required. Adoption

typically takes longer than the 3 years required by the Clean Water Act. How will your proposal

address this?

 Gayle Killam: The following question was not addressed earlier: What if the designated use is

not a 101(a)(2) use, but the pollutant of concern is toxic to aquatic life, so that removing the

designated use will impact an existing 101(a)(2) use?

 Ann Soule: Our concern relates to the regulation of sources of toxics (and other pollutants) in

the first place. These revisions do not address this, true? Where would that concern best be

directed?