U.S. Environmental Protection Agency

Documentation of OMB Review Under Executive Order 12866

Title of Action:

Water QualityStandardsRegulatory Revisions;Final Rule

Docket#: EPA-HQ-OW-2010-0606 FRL#: 9921-21-OW RIN: 2040-AF16

This action was submitted to the Office of Management and Budget (OMB) for review under Executive Order (E.O.)

12866, titled Regulatory Planning and Review (58 FR 51735, October 4, 1993). Whenever EPA makes publicly available

a regulatory action that was reviewed under E.O. 12866, section 6(a)(3)(E) of the E.O. directs the Agency to also:

(1) Make available to the public a copy of the information that was provided to OMB’s Office of Information and

Regulatory Affairs (OIRA) for review under the E.O., i.e., the text of the draft regulatory action and, if applicable,

an assessment of the potential costs and benefits, as well as additional information for those actions that are

determined to be economically significant under the E.O. (Information requirements are described in sections

6(a)(3)(B) and (C)).

(2) Identify for the public any substantive changes between the draft submitted to OIRA and the action that was

subsequently issued, using a method that is complete, clear, and simple.

(3) Identify for the public those substantive changes made at the suggestion or recommendation of OIRA.

For this regulatory action, were substantive changes made to information reviewed under E.O.

12866? [Please check the appropriate answer.]

No. [In the docket, include the information identified in item (1) below.]

Yes. [In the docket, include the information identified in items (1) – (3) below.]

Accordingly, the Agency has included this form and the following information in the public

docket for this regulatory action: [Please check the appropriate information.]

(1) A copy of the information that was provided to OIRA for review under the E.O.

(2) Documentation of any substantive changes made to the draft regulatory text that was

submitted to OIRA when compared with what was subsequently made publicly available.

The documentation is provided on the pages following this form. Changes made at the

suggestion or recommendation of OIRA, if any, are clearly identified through attribution to

OIRA. EPA has used one or more of the following methods to note changes: [Select the

appropriate option(s).]

(a) Redline-Strikeout – A copy of the draft regulatory action submitted, using redlinestrikeout to show the substantive changes that were made.

(b) Hand Markup – A copy of the draft regulatory action submitted, using handwritten notes

to show the substantive changes that were made.

(c) Note to the file - A document that identifies the substantive changes that were made,

with page and paragraph references to the draft regulatory action that was submitted.

If you have any questions about this regulatory action or this documentation, please call the

contact:

Name: JANITAAGUIRRE Email: AGUIRRE.JANITA@EPA.GOV Phone: 202-566-1149

Revised 05/05/2010
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 1 of 123

EO 12866_OW WQS 2040-AF 16 FINAL_FRN_20141217

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

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

RIN 2040-AF 16

Water Quality Standards Regulatory Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final Rule. 

_______________________________________________________________________

SUMMARY: EPA updates the federal water quality standards (WQS) regulation at 40 CFR Part 

131 providing 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 for water quality-based effluent limits in National 

Pollutant Discharge Elimination System (NPDES) discharge permits. In this rule, EPA revises 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 2 of 123

six program areas, improving the WQS regulation’s effectiveness and promoting meaningful 

public engagement at the state, tribal and local levels. (1) EPA clarifies what constitutes an 

Administrator’s determination that new or revised WQS are necessary. (2) EPA refines how

states and authorized tribes assign and revise designated uses for individual water bodies. (3) 

EPA clarifies the triennial review requirements to explain 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 to describe the applicable WQS that must be reviewed triennially. (4) 

EPA establishes stronger antidegradation requirements to enhance protection of high quality 

waters and to promote public transparency. (5) EPA adds new regulatory provisions to promote 

the appropriate use of WQS variances. A WQS variance is a time-limited designated use and an 

associated criterion for specific pollutant(s) or water quality parameter(s). (6) EPA 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 qualitybased effluent limits (WQBELs) in NPDES permits. In total, these revisions to the WQS 

regulation enable states and authorized tribes to address complex water quality challenges to

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, 2013.1

 1 See Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54517 (September 4, 2013).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 3 of 123

DATES: This final rule is effective on [INSERT DATE 60 DAYS AFTER DATE OF 

PUBLICATION IN THE FEDERAL REGISTER], 60 days after publication in the Federal 

Register. 

ADDRESSES: EPA has established a docket for this action under Docket ID No. EPA-OW2010-0606. All documents in the docket are listed on the www.regulations.gov website. 

Although listed in the index, some information is not publicly available, e.g., confidential 

business information or other information whose disclosure is restricted by statute. Certain other 

material, such as copyrighted material, is not placed on the Internet and will be publicly available 

only in hard copy form. Publicly available docket materials are available either electronically 

through www.regulations.gov or in hard copy at the Office of Water Docket Center, EPA/DC, 

William Jefferson Clinton West Building, Room 3334, 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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 4 of 123

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?

F. Severability

II. Rule Revisions Addressed in Today’s Rule

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

B. Designated Uses

C. Triennial Reviews

D. Antidegradation

E. WQS Variances 

F. Provisions Authorizing the Use of Schedules of Compliance for WQBELs in 

NPDES Permits
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 5 of 123

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
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 6 of 123

A. Does this Action Apply to Me?

The entities potentially affected by today’s 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.

2

Industry Industries discharging pollutants to waters of the 

United States.

Municipalities Publicly owned treatment works or other facilities 

discharging pollutants to waters of the United States.

This table is not exhaustive, 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 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?

 2 Hereafter referred to as “states and authorized tribes.” “State” in the CWA and this document refers to a state, the 

District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the 

Commonwealth of the Northern Mariana Islands. “Authorized tribes” refers to those federally recognized Indian 

tribes with authority to administer a CWA WQS program.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 7 of 123

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. In the Act, Congress established the national objective “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. 

WQS, comprised of the core components of designated uses, water quality criteria, and 

antidegradation requirements, are how the CWA national objectives are reflected for each water 

body. Designated uses establish the environmental objectives for a water body and water quality 

criteria3 define the minimum conditions necessary to achieve those environmental objectives. 

The antidegradation requirements provide a framework for maintaining and protecting water 

quality that has 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 

 3 Under CWA section 304(a), EPA publishes recommended water quality criteria guidance that consists of scientific 

information regarding concentrations of specific chemicals or levels of parameters in water that protect aquatic life 

and human health. CWA section 303(c) refers to state and authorized tribal water quality criteria that are subject to 

EPA review and approval or disapproval. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 8 of 123

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 in 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 must hold a public hearing to review their standards at least once every three years, and 

that EPA review and approve or disapprove any new or revised state and authorized tribal 

standards. Further, 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 previous provisions that had been in place since 1977 and moved them to a new 40 

CFR Part 131.

4 In support of the 1983 regulation, EPA issued a number of guidance documents, 

 4 54 Fed. Reg. 51400 (November 8, 1983).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 9 of 123

such as the Water Quality Standards Handbook (WQS Handbook),5 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 Quality-Based Toxics Control6 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 EPA added 

§§ 131.7 and 131.8 regarding tribes, pursuant to section 518 of the Act.7 CWA section 518, 

enacted in 1987, included provisions extending the opportunity to administer the WQS program 

to Indian tribes. Second, in 2000 EPA finalized § 131.21(c)-(f), commonly known as the “Alaska 

Rule,” to specify that new and revised standards adopted by states and authorized tribes and 

submitted to EPA after May 30, 2000, become applicable standards for CWA purposes only 

when approved by EPA.8

In 1998, EPA issued an Advance Notice of Proposed Rulemaking (ANPRM) to discuss and 

invite comment 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.

9 Although EPA chose not to 

move forward with a rulemaking after the ANRPM, as a result of the input received, EPA 

 5 First edition, December 1983; second edition, EPA 823-B-94-005a, August 1994. 6 First edition, EPA 440/4-85-032, September 1985; revised edition, EPA 505/2-90-001, March 1991. 7 56 Fed. Reg. 64893 (December 12, 1991). 8 65 Fed. Reg. 24641 (April 27, 2000). 9 63 Fed. Reg. 36742 (July 7, 1998).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 10 of 123

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. While today’s action is not a direct continuation of the 1998 

ANPRM, it 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 initially 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. Over time, 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 for updating the regulation 

to enhance existing tools to 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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 11 of 123

The provisions related to designated uses help states and authorized tribes restore and maintain 

resilient and robust ecosystems by requiring that states and authorized tribes evaluate and adopt

the highest attainable use when changing designated uses. The rule provides clearer expectations 

for when an analysis of attainability of designated uses is or is not required. Such clarity allows

for better and more transparent communication between EPA, states and authorized tribes,

stakeholders and the public about the designated use revision process, and the appropriate level 

of protection necessary to meet the purposes of the CWA.

Today’s rule 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. Today’s 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. Any decision to allow 

lowering of high quality water can be made only after a transparent, public, robust evaluation. 

Thus, this rule will lead to better protection of high quality waters. 

The rule addresses two CWA tools, WQS variances and permit compliance schedules, which can

be appropriately 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 12 of 123

compliance schedules to ensure that a state or authorized tribal decision to allow permit 

compliance schedules includes engaging and communicating transparently with the public. 

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 today’s rule promote 

public transparency and allow for effective communication between 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 today’s rule, EPA considered the public comments and feedback received from 

stakeholders. EPA provided a 120-day public comment period after the proposed rule was 

published in the Federal Register. In addition, EPA held two public webinars, a public meeting, 

and a tribal consultation to discuss the contents of the proposed rule and answer clarifying 

questions in order to allow the public to submit well-informed comments.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 13 of 123

Over 150 organizations and individuals submitted comments on a range of issues, including an 

additional 2,500 letters from individuals associated with mass letter writing campaigns. Some 

comments addressed issues beyond the scope of the proposed rulemaking, however, EPA did not 

expand the scope of the rulemaking or make regulatory changes to address the substance of these 

comments. In each section of today’s preamble, EPA discusses certain public comments so that 

the public is fully aware of its position. For a full response to these and all other comments, see 

EPA’s 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 [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION 

IN THE FEDERAL REGISTER]. For judicial review purposes, this rule is promulgated as of 

1 p.m. 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 today’s rule on the effective date 

of the rule. EPA’s expectation is that, where a new or revised requirement necessitates a change 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 14 of 123

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.

G. Severability

In the event that a court sets aside any part of this rule, EPA intends for the remainder of the rule 

to remain in effect to the extent possible. EPA will advise the public as to the effect of any such 

action by a court.

II. Rule Revisions Addressed in Today’s Rule

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

What Does Today’s Rule Provide and Why?

Open communication among states, tribes and EPA facilitates the sharing of information to 

ensure that WQS continue to adequately protect waters as new challenges arise. EPA’s ability to 

provide direct and transparent feedback, however, is limited because the public has occasionally 

mistaken such feedback 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 15 of 123

determination”).10 Such an Administrator’s determination, in turn, requires the Agency to 

promptly propose and promulgate federal WQS. 

With the clarification provided by today’s 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. Today’s rule minimizes the potential for stakeholders to misunderstand EPA’s intent with 

its communications, which will preserve limited resources that would otherwise be spent 

resolving the confusion through litigation. 

An Administrator’s determination is a powerful tool, and today’s rule ensures that it continues to 

be used purposefully and thoughtfully, rather than unintentionally. Today’s rule contains two 

requirements. The first requirement at § 131.22(b) provides that in order for a document to 

constitute an Administrator’s determination, such document must be signed by the Administrator 

or his or her duly authorized delegate, and include a statement that the document is an 

Administrator’s determination for purposes of section 303(c)(4)(B) of the Act.

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 

 10 A listing of Administrator’s determinations that new or revised WQS are necessary to meet the requirements of 

the CWA pursuant to section 303(c)(4)(B) can be found at: 

http://water.epa.gov/scitech/swguidance/standards/wqsregs.cfm#federal. EPA intends to post future Administrator’s 

determinations pursuant to CWA section 303(c)(4)(B) to its website.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 16 of 123

regulation or through the Agency’s delegation process by signing an official letter that is then 

maintained as a legal record of authority by EPA’s Human Capital Planning and Policy Division. 

The second 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 where 

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. A determination made pursuant to section 303(c)(4)(A) of 

the Act is different and distinct from an Administrator’s determination made pursuant to section 

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

Section 303(c)(4)(A) of the Act gives EPA the authority to propose regulations where states or

authorized tribes have submitted new or revised WQS that the Administrator “determines” are 

not consistent with the Act. In this instance, EPA 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). Today’s regulation does not address or affect this authority.

Absent state or authorized tribal adoption or submission of new or revised WQS, section 

303(c)(4)(B) of the CWA gives EPA the authority to determine that new or revised WQS are 

necessary to meet the requirements of the Act. Once the Administrator makes such a 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 17 of 123

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 does not accurately describe the scope of waters for which 

the CWA authority provided to the EPA Administrator. Thus, consistent with CWA section 

303(c)(4), the final rule provides that the Administrator may propose and promulgate a 

regulation applicable to one or more “navigable waters” after determining that new or revised 

WQS are necessary to meet the requirements of the CWA. Consistent with the statute’s plain 

language, this authority applies to all navigable waters located in any state or in any area of 

Indian 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 

 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). 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 18 of 123

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)). 

Today’s action does not affect the public’s ability to petition EPA to issue, amend, or repeal a 

rule. Nor does today’s action affect the Agency’s obligations for responding to an APA petition 

or the ability of a petitioner to challenge the Agency for unreasonable delay in responding to a 

petition. In the event that the 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.

B. Designated Uses

What Does Today’s Rule Provide and Why?

CWA section 303(c)(2)(A) requires that new or revised WQS shall consist 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 19 of 123

maintain the chemical, physical, and biological integrity of the Nation’s waters. The interim 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 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.

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 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.”

Today’s revisions to the designated use requirements improve the process by which states and 

authorized tribes designate and revise uses to better help restore and maintain resilient water 

quality and robust aquatic ecosystems. The revisions reduce potential confusion and conflicting 

interpretations of the regulatory requirements for establishing designated uses that can hinder 

environmental progress. Designated uses drive state and authorized tribal criteria development 

and water quality management decisions. Therefore, clear and accurate designated uses are 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 20 of 123

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 

today’s final rule, the phrase “uses specified in section 101(a)(2) of the Act” refers to uses that 

provide for the protection and propagation of fish,

12 shellfish, and wildlife, and recreation in and 

on the water, as well as for the protection of human health when consuming fish, shellfish, and 

other aquatic life. A “sub-category of a use 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.13 A “non101(a)(2) use” is a use that is not related to the protection or propagation of fish, shellfish, 

wildlife or recreation in or on the water. Non-101(a)(2) uses include those listed in CWA section 

303(c)(2), but not those listed in CWA section 101(a)(2), including use for public water supply, 

agriculture, industry, and navigation. 

For uses specified in section 101(a)(2) of the Act, today’s rule clarifies when a UAA is and is not 

required. Today’s rule also makes clear that once a state or authorized tribe has rebutted the 

presumption of attainability by demonstrating through a required UAA that a use specified in 

 12 To achieve the CWA’s goal of “wherever attainable...protection and propagation of fish...,” all aquatic life, 

including aquatic invertebrates, must be protected because they are a critical component of the food web. 13 A sub-category of a use specified in section 101(a)(2) of the Act is not necessarily less protective than a use 

specified in section 101(a)(2) of the Act. For example, a cold water aquatic life use is considered a use sub-category, 

but provides “for the protection and propagation of fish, shellfish and wildlife,” consistent with CWA section 

101(a)(2). On the other hand, a secondary contact recreation use (i.e., a use, such as wading or boating, where there 

is a low likelihood of full body immersion in water or incidental ingestion of water) is considered a use subcategory, but does not provide “for recreation in and on the water,” consistent with CWA section 101(a)(2).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 21 of 123

section 101(a)(2) of the Act is not attainable, it must adopt the highest attainable use (HAU), as 

defined in today’s rule. The UAA requirements in today’s rule implement CWA sections 

303(c)(2)(A) and 101(a)(2), and specifically the “wherever attainable” language, to continue to 

provide an avenue for states and authorized tribes to show that uses specified in section 101(a)(2) 

of the Act are not attainable. The HAU requirement ensures that states and authorized tribes 

strive to restore and maintain the chemical, physical and biological integrity of the Nation’s 

waters to the maximum extent feasible. 

For non-101(a)(2) uses, today’s rule provides that a UAA is not 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 non-101(a)(2) uses must be consistent with the statute and transparent to the 

public and EPA. Today’s rule also provides a regulatory definition for a non-101(a)(2) use at § 

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, today’s rule revises §§ 131.10(g) and 131.10(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, today’s rule revises § 131.10(k) into new §§ 131.10(k)(1) and 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 22 of 123

131.10(k)(2) to eliminate a possible contradiction with § 131.10(j)(2), as described in the 

preamble to the proposed rule.14

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

Act.15 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 sub-category 

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

section 101(a)(2) of the Act with less 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). Today’s rule also includes editorial changes to § 

 14 See 78 Fed. Reg. 54525 (September 4, 2013). 15 This provision includes situations where a state or authorized tribe adopts for the first time, or previously 

designated, only non-101(a)(2) uses.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 23 of 123

131.10(g) that are not substantive in nature. Lastly, EPA establishes a new §§ 131.10(k)(1) and 

131.10(k)(2) to explain when a UAA is not required.

To ensure that states and authorized tribes adopt WQS that 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, today’s rule revises § 131.10(g) to provide that where states and authorized tribes 

adopt new or revised WQS based on a required UAA, they must adopt the HAU. Today’s rule 

also adds a definition for HAU 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 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 sub-category 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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 24 of 123

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. Today’s rule defines HAU as the “modified aquatic 

life, wildlife, or recreation use that is both closest to the uses specified in section 101(a)(2) of the 

Act and attainable, based on the evaluation of the factor(s) in § 131.10(g) that preclude(s) 

attainment of the use and any other information or analyses that were used to evaluate 

attainability.” This definition includes specific terms to ensure that the resulting HAU is clear to 

states, authorized tribes, stakeholders and the public. 

First, the word “modified” makes clear that when adopting the HAU, the state or authorized tribe 

is adopting a different use within the same broad CWA section 101(a)(2) use category. 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). 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 adopt a new statewide or waterbody-specific use (i.e., a “modified” use) in order to meet 

this requirement. 

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 today’s final HAU definition to be clear that the HAU is the use that 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 25 of 123

results from the process of determining what is attainable. 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 should 

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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 26 of 123

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). States and authorized tribes are not limited by these 

examples and can choose different approaches that align with their specific needs, as long as the 

approaches are consistent with the CWA and § 131.10.16

Some commenters expressed concern with the difficulty of articulating a specific HAU because 

doing so may require additional analyses. Where this is the case, an alternative method of 

articulating the HAU can be for a state or authorized tribe to adopt a general HAU (e.g., limited 

aquatic life use) and the most protective attainable criteria. 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.

As an example of how to identify and adopt 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 

 16 Section 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. Today’s rule is finalizing revisions to § 131.10(g) to specify that when a state or authorized tribe conducts 

a UAA required by § 131.10(j), and the state or authorized tribe revises its WQS to something other than a use 

specified in section 101(a)(2) of the Act, the state or authorized tribe must adopt the highest attainable modified 

aquatic life, wildlife, and/or recreation use (i.e., a sub-category of an aquatic life, wildlife, and/or recreation use). 

Where a UAA is not required by § 131.10(j), the state or authorized tribe retains discretion to choose whether to 

adopt sub-categories of uses per § 131.10(c).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 27 of 123

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 analyses 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, today’s rule finalizes a new paragraph (3) at § 131.10(k) to specify that states and 

authorized tribes are not required to conduct a UAA whenever they wish to remove or revise a 

non-101(a)(2) use, but must meet the requirements in § 131.10(a). Today’s rule defines a 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. Today’s 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 28 of 123

state’s or authorized tribe’s action. EPA refers to this documentation as a “use and value 

demonstration.” Even though §§ 131.10(a)17 and 131.6,

18 taken together, already require states 

and authorized tribes to submit a use and value demonstration, EPA makes this requirement

explicit to avoid any future confusion. 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 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),

 17 Section 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”). 18 Section 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.”
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 29 of 123

• 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 today’s rule, EPA considered foregoing the revisions to §§ 131.10(g), 131.10(j), 

and 131.10(k), but this option would not clarify when a UAA is or is not required and thus not 

accomplish the Agency’s objectives. EPA considered finalizing the revisions to §§ 131.10(g), 

131.10(j), and 131.10(k)(1) and 131.10(k)(2) as proposed; however, in response to comments 

received, EPA made revisions to better accomplish its objectives.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 30 of 123

EPA considered foregoing the HAU requirement at § 131.10(g), but this option would not ensure 

states’ and authorized tribes’ WQS continue to serve the purposes of the Act. EPA also 

considered finalizing the requirement as proposed but not finalizing a regulatory definition; 

however, the absence of a regulatory definition could lead to confusion and hinder environmental 

protection.

EPA considered not specifying what is required when removing or revising a non-101(a)(2) use 

in today’s rule; however, multiple commenters indicated that EPA’s proposed rule only specified 

that a UAA is not required to remove or revise a non-101(a)(2) use and did not specify what is 

required. Given the confusion about existing requirements, EPA decided to make the 

requirement explicit in § 131.10(a) and § 131.10(k)(3). 

What Is EPA’s Position on Certain Public Comments?

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.19

EPA first articulated this interpretation in the National Toxics Rule 1992.20 For example, EPA 

specified that all waters designated for even minimal aquatic life protection (and therefore a 

 19 http://water.epa.gov/scitech/swguidance/standards/upload/2000_10_31_standards_shellfish.pdf. 20 57 Fed. Reg. 60859 (December 22, 1992). See also 40 CFR 131.36.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 31 of 123

potential fish and shellfish consumption exposure route) are protected for human health. EPA 

also described its interpretation in the October 2000 Human Health Methodology.21 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 today, EPA is not reopening or changing this regulatory provision. 

The WQS regulation at § 131.3(e) defines an existing use as “those uses actually attained in the 

water body on or after November 28, 1975, whether or not they are included in the water quality 

standards.” EPA provided additional clarification on existing uses in the background section of 

the proposed preamble,22 as well as in a September 2008 letter from EPA to the State of 

Oklahoma.23 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. EPA 

 21 http://water.epa.gov/scitech/swguidance/standards/criteria/health/methodology/index.cfm; Methodology for

Deriving Ambient Water Quality Criteria for the Protection of Human Health, see pages 4-2 and 4-3. 22 78 Fed. Reg. 54523 (September 4, 2013). 23 http://water.epa.gov/scitech/swguidance/standards/upload/Smithee-existing-uses-2008-09-23.pdf. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 32 of 123

provides substantial flexibility to states and authorized tribes to evaluate the strength of the 

available data and information where data may be limited, inconclusive, or insufficient to 

determine whether the use has occurred and the water quality 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 position supports the removal of a designated use 

in a situation where the use has actually occurred but the water quality necessary to protect the 

use has never been attained, as well as in a situation where the water quality has been attained 

but the use has not actually occurred. Such a position may 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.

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; the use cannot be attained by implementing 

effluent limits required under sections 301(b) and 306 of the Act and by implementing costeffective and reasonable best management practices for nonpoint source control (§§ 131.10(h)(1) 

and 131.10(h)(2)); and the state or authorized tribe can demonstrate that one of the factors listed 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 33 of 123

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 attainable uses 

consistent with the goals of the Act unless there has been a public process to demonstrate that 

such a use is not attainable, and also requires states and authorized tribes to maintain uses that 

have actually been attained. Today’s rule will require that states and authorized tribes adopt the 

HAU to ensure that what can be attained is protected.

C. Triennial Reviews

What Does Today’s Rule Provide and Why?

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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 34 of 123

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 are not transparently considering EPA’s new or 

updated recommended CWA section 304(a) criteria when deciding whether their WQS need to 

be updated and if so, how soon. And, without any explanation, the public may be led to believe 

that states and authorized tribes are not considering new science. To ensure public transparency 

and clarify existing requirements, today’s final rule contains two revisions to the triennial review 

requirements at 40 CFR 131.20(a). First, the rule requires that if states and authorized tribes 

choose not to adopt new or revised criteria during their triennial review for any parameters for 

which EPA has published new or updated CWA section 304(a) criteria recommendations, 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.24

 24 EPA’s compilation of national water quality criteria recommendations, published pursuant to CWA section 

304(a), can be found at: http://water.epa.gov/scitech/swguidance/standards/criteria/current/index.cfm.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 35 of 123

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

on 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. Today’s rule focuses on how a state 

or authorized tribe explains its decisions to EPA (and the public) rather than on how the state or 

authorized tribe conducts its review. EPA acknowledges that because the CWA section 304(a) 

criteria are national recommendations, site-specific physical and/or chemical water body 

characteristics and/or varying sensitivities of local aquatic communities may not be precisely 

reflected. 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 36 of 123

state and authorized tribal decisions. Such coordination ultimately increases the effectiveness of 

the state and authorized tribal water quality management processes. Following today’s 

rulemaking, when states and authorized tribes conduct their next triennial review, they must 

provide an explanation where the criterion in question is related to a parameter for which EPA 

has published CWA section 304(a) criteria recommendations since May 30, 2000.25 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 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. 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. 

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 

 25 WQS adopted and submitted to EPA by states and authorized tribes on or after May 30, 2000, must be approved 

by EPA before they become effective for CWA purposes, including the establishment of water quality-based 

effluent limits or development of total maximum daily loads (40 CFR 131.21, 65 FR 24641, April 27, 2000).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 37 of 123

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, today’s rule clarifies 

what the regulation means by “applicable water quality standards.”26

When conducting triennial reviews, states and authorized tribes must review all applicable WQS 

adopted into state or tribal law pursuant to §§ 131.10–131.1527 and any federally promulgated 

WQS.

28 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).29 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 

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

Questions (EPA-820-F-12-017, October 2012) to consolidate EPA’s interpretation (informed by the CWA, EPA’s 

implementing regulation at 40 CFR Part 131, and relevant case law) of what constitutes a new or revised WQS that 

the Agency has the CWA section 303(c)(3) authority and duty to approve or disapprove 

(http://water.epa.gov/scitech/swguidance/standards/upload/cwa303faq.pdf). 27 Definitions adopted by states and authorized tribes are considered WQS when they are inextricably linked to 

provisions adopted pursuant to §§ 131.10–131.15. 28 Any 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. 29 Today’s rule finalizes § 131.14 (WQS Variances) and § 131.15 (Provisions Authorizing the Use of Schedules of 

Compliance for WQBELs in NPDES permits). For detailed discussion about these sections, see II.E and II.F of this 

document, respectively.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 38 of 123

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 

hearing30 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?

 30 For detailed discussion about today’s final rule for § 131.20(b), related to public participation, see section II.G of 

this document.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 39 of 123

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 principle objectives of the CWA is to “maintain the chemical, physical and biological 

integrity of the Nation’s waters.”31 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.)

 31 See CWA section 101(a) (emphasis added).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 40 of 123

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.32

Preventing degradation and maintaining a reliable source of clean water can be more effective 

and efficient than investing in long-term restoration efforts or remedial actions. 

Today’s rule revises the antidegradation regulation to enhance 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. 

Today’s 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, today’s rule also includes editorial 

changes that are not substantive in nature.

 32 http://water.epa.gov/polwaste/nps/watershed/upload/economic_benefits_factsheet3.pdf; Economic Benefits of 

Protecting Health Watersheds (EPA 841-N-12-004, April 2012). 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 41 of 123

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

What Does Today’s Rule Provide and Why?

Today’s rule at § 131.12(a)(2)(i) provides that states and authorized tribes may identify waters 

for Tier 2 protection on either a parameter-by-parameter or a water body-by-water body basis. 

The rule also specifies that, where states and authorized tribes identify waters on a water bodyby-water body basis, states and authorized tribes must involve the public on any decisions 

pertaining to when they will provide Tier 2 protection, and the factors considered in such 

decisions. Further, states and authorized tribes must not exclude water bodies from Tier 2 

protection solely because water quality does not exceed levels necessary to support all of the 

uses specified in CWA section 101(a)(2). Today’s rule requires that states’ and 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 42 of 123

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

higher-value [s]tate or [t]ribal waters. The water body-by-water body approach can [...] preserve 

high quality waters on the basis of physical and biological attributes, rather than high water 

quality attributes alone.” 

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

water body-by-water body approach, it was possible for states and authorized tribes to identify 

high quality waters in a manner inconsistent with the CWA and the intent of EPA’s 

implementing regulation. In some cases, states and authorized tribes have used the water body-
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 43 of 123

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. 

Today’s rule reaffirms EPA’s support for both approaches. The new regulatory requirements 

included at § 131.12(a)(2)(i) only apply to the water body-by-water body approach because they 

are unnecessary for the parameter-by-parameter approach. States and authorized tribes using the 

parameter-by-parameter approach provide Tier 2 protection to all chemical, physical, and 

biological parameters for which water quality is better than necessary to protect the uses 

specified in CWA section 101(a)(2). Because the identification of waters that are high quality 

with respect to relevant parameters would occur in the context of allowing a specific activity, the 

level of protection is already subject to any public involvement required for that activity. For 

example, an NPDES permit writer calculating WQBELs would use available data and 

information about the water body to determine whether assimilative capacity exists for the 

relevant parameters. The state or authorized tribe would then provide Tier 2 protection for all 

parameters for which assimilative capacity exists. The draft permit would reflect the results of 

the Tier 2 review, hence providing an opportunity for public involvement.

The requirement at § 131.12(a)(2)(i) regarding public involvement increases transparency and 

accountability on 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 44 of 123

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 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.33 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. 

To minimize the administrative processes associated with today’s rule, EPA uses the phrase 

“opportunity for public involvement” rather than “public participation.” “Public participation” at 

 33 Ohio Valley Envtl. Coal. v. Horinko, 279 F. Supp. 2d 732 (S.D. W. Va. 2003).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 45 of 123

40 CFR 131.20(b)34 refers to a state or authorized tribe holding a public hearing for the purpose 

of reviewing WQS. With this rule, EPA provides states and authorized tribes the flexibility to 

engage the public in a way that suits the state or authorized tribe and the public. For example, a 

state or authorized tribe could develop lists of waters that will and will not receive Tier 2 

protection along with descriptions of the factors considered in making each of those decisions 

and post that information on its website. To obtain public input, the state or authorized tribe 

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 decisionmaking and public involvement processes. As another example, a state could use the NPDES 

process to engage its 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).

 34 See section II.G for more information on the final rule change related to public participation.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 46 of 123

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). 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. 

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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 47 of 123

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.

Today’s rule requires states’ and authorized tribes’ antidegradation policies (which are legally 

binding state and authorized tribal provisions subject to public participation) to be consistent 

with the new requirements related to identifying waters for Tier 2 protection. Since states and 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 48 of 123

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 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 method should 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 that permit.

What Did EPA Consider?
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 49 of 123

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 on 

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 case-specific 

facts. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 50 of 123

Analysis of Alternatives

What Does Today’s Rule Provide and Why?

The final rule at § 131.12(a)(2)(ii) provides that before allowing a lowering of high water 

quality, states and authorized tribes must find, after an analysis of 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, today’s 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. Today’s 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. Today’s rule refers to “analysis of alternatives” 

rather than “alternatives analysis” as in the proposal. This makes clear that the analysis required 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 51 of 123

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.” 

Today’s rule preserves states’ and authorized tribes’ discretion to decide the order in which they 

satisfy these requirements. A state or authorized tribe can choose to first review an analysis of 

economic or social development. If it finds 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 non-degrading alternative is 

selected for implementation, the state or authorized tribe does not need to proceed with an 

analysis of economic or social development.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 52 of 123

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 other entities may be 

best positioned to analyze the alternatives. Today’s 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’ decision-makers, and can bring additional

resources and expertise to the analysis. States and authorized tribes remain ultimately responsible 

for making findings to allow degradation and for basing their decisions on adequate analyses. If 

the state or authorized tribe deems an initial analysis of alternatives 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.

35

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 minimally-degrading alternatives exist, a 

 35 E.g., EPA’s Municipal Technologies website, which presents technology fact sheets to assist in the evaluation of 

different technologies for wastewater (http://water.epa.gov/scitech/wastetech/mtb_index.cfm).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 53 of 123

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, today’s 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,36 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.

 36 See 78 Fed. Reg. 54528 (September 4, 2013).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 54 of 123

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. 

Today’s 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 on 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 on what type of 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 55 of 123

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 Today’s Rule Provide and Why?

The rule at § 131.12(b) requires states’ and authorized tribes’ antidegradation implementation 

methods (whether or not those methods are adopted into rule) to be consistent with their 

antidegradation policies and with § 131.12(a). Today’s rule also requires states and authorized 

tribes to provide an opportunity for public involvement during the development and any 

subsequent revisions of antidegradation implementation methods, and to make the methods 

available to the public. Finally, today’s rule adds § 131.5(a)(3) to specify that EPA has the 

authority to determine whether the states’ and authorized tribes’ antidegradation policies and any 

adopted antidegradation implementation methods37 are consistent with the federal 

antidegradation requirements at § 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 

 37 See http://water.epa.gov/scitech/swguidance/standards/cwa303faq.cfm. What is a New or Revised Water Quality 

Standard Under CWA 303(c)(3) Frequently Asked Questions (EPA-820-F-12-017, October 2012).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 56 of 123

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

today’s rule also provides for public involvement during development or revision of 

implementation methods. A state or authorized tribe may decide to offer more than one 

opportunity to most effectively engage the public. States and authorized tribes can use various 

mechanisms to provide such opportunities, including a public hearing, a public meeting, a public 

workshop, and different ways of engaging the public via the Internet, such as webinars and 

website postings. If a state or 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 today’s 

final rule.

EPA clarifies here the terms “antidegradation policy” and “antidegradation implementation 

methods.” For the purposes of § 131.12, states’ and authorized tribes’ “antidegradation policies” 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 57 of 123

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 rule or other 

legally binding form. If a state or authorized tribe does not choose to adopt the entirety of its 

implementation methods, EPA recommends adopting, at a minimum, 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 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 rule 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, 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 58 of 123

or complex rulemaking processes. Instead of requiring adoption of implementation methods, 

today’s rule achieves more accountability by establishing specific requirements for states’ and 

authorized tribes’ antidegradation policies regarding two key aspects of Tier 2 implementation.

What Is EPA’s Position on Certain Public Comments?

Commenters requested clarification about 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 today’s rule, EPA does 

not anticipate the need for further changes.

Many commenters requested clarification about 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 today’s rule - does not address de minimis exclusions. States and 

authorized tribes can use de minimis exclusions, as long as they use them in a manner consistent 

with the CWA and § 131.12.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 59 of 123

The D.C. 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.”38 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.”39 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.”40

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 

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

39 Id. 40 Ky. Waterways Alliance v. Johnson, 540 F.3d 466, 483 (6th Cir. 2008).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 60 of 123

lowering of water quality, even very small changes in water quality could cause significant 

effects to the water body.

Courts have explained that the implied de minimis provision authority is “narrow in reach and 

tightly bounded by the need to show that the situation is genuinely de minimis or one of 

administrative necessity.”41 Accordingly, this authority only applies “when the burdens of 

regulation yield a gain of trivial or no value.”42 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.”43

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 

 41 Id. (quoting Ala. Power. v. Costle, 636 F.2d. 323, 361 (D.C. Cir. 1979)). 42 Id. (quoting Greenbaum v U.S.Envtl Prot. Agency, 370 F.3d 527, 534 (6th Cir. 2004)). 43 Id. (quoting Greenbaum v U.S.Envtl Prot. Agency, 370 F.3d 527, 534 (6th Cir. 2004)).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 61 of 123

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 that would be used 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 Today’s Rule Provide and Why?

Today’s rule establishes an explicit regulatory framework for the adoption of WQS variances

that states and authorized tribes can use to implement adaptive management approaches to 

improve water quality. 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 62 of 123

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. 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, today’s rule provides 

regulatory certainty to states and authorized tribes, the regulated community, and the public that 

variances are a legal WQS tool because 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.

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

and 303(c)(2). Today’s rule reflects this authority by explicitly recognizing that states and 

authorized tribes may adopt time-limited WQS with a designated use and criterion reflecting the 

highest attainable condition applicable throughout the term of the WQS variance, instead of 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 63 of 123

pursing a permanent44 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, today’s rule provides a 

mechanism to make incremental progress toward the ultimate water quality objective for the 

water body and toward the restoration and maintenance of the chemical, physical, and biological 

integrity of the Nation’s waters.

Today’s rule adds a new regulatory section at § 131.14 that explicitly authorizes the use of WQS 

variances when the applicable designated uses are not attainable in the near-term but may be 

attainable in the future. The rule clarifies how WQS variances relate to other CWA programs and 

specifies the information that the state and authorized tribe must adopt in any WQS variance, 

including the highest attainable condition. States and authorized tribes must submit to EPA

supporting documentation that demonstrates why the WQS variance is needed and justifies the 

term and interim requirements. Finally, the rule requires states and authorized tribes to reevaluate 

WQS variances longer than five years on an established schedule with public involvement. The 

 44 “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 re-examined 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.”
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 64 of 123

changes from the proposed rule respond to public comments and remain consistent with the 

Agency’s clearly articulated policy objectives in the proposed rule. Today’s rule also includes 

editorial changes that are not substantive in nature.

First, to provide clarity, today’s rule includes a new section at § 131.14 to explicitly authorize 

states and authorized tribes to adopt WQS variances. States and authorized tribes may adopt 

WQS variances for a single discharger, multiple dischargers, or a water 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 time-limited 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,

45 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. A WQS variance shall not be adopted if the designated use and criterion can 

be achieved by implementing technology-based effluent limits required under sections 301(b) 

and 306 of the Act. 

To make incremental water quality improvements, it is important that states’ and authorized 

tribes’ WQS continue to reflect the ultimate water quality goal. Today’s rule, therefore, requires 

states and authorized tribes to retain the underlying designated use and criterion in their 

standards to apply to all other permittees not addressed in the WQS variance, and for identifying 

 45 For 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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 65 of 123

threatened and impaired waters under CWA section 303(d), and for establishing a Total 

Maximum Daily Load (TMDL).46 For further clarity, today’s rule also specifies that once EPA 

approves a WQS variance, including the highest attainable condition, it applies for purposes of 

developing NPDES permit limits and requirements under 301(b)(1)(C). WQS variances can also 

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 resubmitted WQS variance, the underlying designated use and criteria remain applicable for all 

CWA purposes. Today’s 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, today’s rule requires states and authorized tribes to 

include specific information in the WQS variance. States and authorized tribes must specify the 

pollutant(s) or water quality parameter(s) and the water body/waterbody segment(s) to which the

WQS variance applies. A state or authorized tribe must also identify the discharger(s) subject to 

a discharger-specific WQS variance. 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 § 131.14.47 A multiple discharger WQS variance may not be appropriate or practical 

 46 See 78 Fed. Reg. 54533 (September 4, 2013). 47 EPA has developed a list of Frequently Asked Questions addressing when a multiple discharger WQS variance 

may be appropriate and how a state or authorized tribe can develop a credible rationale for this type of WQS 

variance. Discharger-specific Variances on a Broader Scale: Developing Credible Rationales for Variances that 

Apply to Multiple Dischargers, EPA-820-F-13-012, March 2013.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 66 of 123

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 time-limited. 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 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.48 (See CWA section [502(17)] for a definition of “Schedules of compliance” 

and 40 CFR 122.47).49 Any such compliance schedule must include a final effluent limit based 

 48 As an alternative to a permit compliance schedule, there may be other available mechanisms such as an 

administrative order.

49 78 Fed. Reg. 54532 (September 4, 2013).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 67 of 123

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 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.

Today’s 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. Today’s 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 68 of 123

reduction such as the maximum number of combined sewer overflows that is achievable after 

implementation of a long-term control plan. 

Today’s 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 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.50 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.

 50 78 Fed. Reg. 54534 (September 4, 2013).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 69 of 123

Where the state or authorized tribe cannot identify an additional feasible pollutant control 

technology, today’s 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 70 of 123

rule requires such a provision only for WQS variances longer than five years. This provision 

must be self-implementing so that if any reevaluation yields a more stringent attainable 

condition, that condition becomes the applicable interim WQS without 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 time-limited 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 71 of 123

restoration activities are actively on-going. Although such a WQS 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 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 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, today’s 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 today’s rule explicitly makes 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 72 of 123

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 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 73 of 123

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.

Today’s rule also includes two additional requirements to ensure states and authorized tribes use 

all relevant information to establish a WQS variance for a water body or waterbody segment. 

States and authorized tribes must identify and document cost-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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 74 of 123

Fourth, to ensure that states and authorized tribes thoroughly reevaluate each WQS variance with 

a term longer than five years, today’s 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 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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 75 of 123

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).”51

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.

 51 78 Fed. Reg. 54536 (September 4, 2013).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 76 of 123

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 today’s rule eliminate the need to specify a 

maximum WQS variance term because they ensure the highest attainable condition is always the 

applicable WQS throughout the WQS variance term, thus driving incremental improvements 

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 

today’s 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. Today’s 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” includes, but is not limited to, new information on pollutant control 

technologies, changes in pollutant sources, flow or water levels, economic conditions, and BMPs 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 77 of 123

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 today’s 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, today’s 

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’ 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 78 of 123

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 WQS variance. However, if a permittee is unable to immediately 

meet a WQBEL consistent with the now attainable WQS, and the permitting authority can 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 79 of 123

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 EPAestablished 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 80 of 123

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 today’s rule. States and 

authorized tribes must meet these requirements on the effective date of today’s rule. Where state 

and authorized tribes have binding WQS variance policies and/or procedures inconsistent with 

today’s 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 today’s 

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 today’s rule. This is particularly 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 81 of 123

important for any WQS variance that does not include an explicit term. 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 today’s rule so that the 

public can provide information supporting the need to modify the WQS variances.

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 websites 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 82 of 123

appropriate tribal legal authority certification, and EPA could take action under CWA section 

303(c). 

Some commenters questioned how today’s rule affects states and authorized tribes under the 

1995 Great Lakes Water Quality Guidance (GLWQG)52 because those requirements are different 

than the WQS variance requirements in today’s final rule. For waters in the Great Lakes basin, 

states and authorized tribes must meet the requirements of both 40 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 today’s 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 today’s final rule that pertain to conducting reevaluations (for 

WQS variances greater than five years) are not applicable.

Finally, some commenters questioned the level of “scientific rigor” required for a WQS variance 

as compared to a UAA required for changes to 101(a)(2) uses. Section 40 CFR 131.5(a)(4) 

provides that EPA’s review under section 303(c) involves a determination of whether the state’s 

or authorized tribe’s standards which do not include uses specified in section 101(a)(2) of the 

Act are based on appropriate technical and scientific data and analysis.” Because variances are 

 52 See 60 Fed. Reg.15366 (March 23, 1995); 40 CFR Part 132. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 83 of 123

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 Today’s Rule Provide and Why?

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. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 84 of 123

In 1990, EPA’s Administrator concluded that before a permitting authority can include a 

compliance schedule for a WQBEL in an NPDES permit, the state or authorized tribe must 

affirmatively authorize its use in its WQS or implementing regulations.53 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). 

Some states have adopted such 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. In either case, if states and authorized tribes decide to authorize 

permit flexibility using permit compliance schedules, they could be subject to legal challenge. 

Section 131.15 in today’s final rule requires that if a state or authorized tribe intends to authorize 

the use of compliance schedules for WQBELs in NPDES permits, it must first adopt a permit 

compliance schedule authorizing provision. The authorizing provision must be consistent with 

the CWA and is subject to EPA review and approval as a WQS. Today’s rule also includes a 

number of non-substantive editorial changes.

 53 In the Matter of Star-Kist Caribe, Inc. 3 EAD 172 (April 16, 1990).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 85 of 123

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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 86 of 123

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 today’s 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.

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

Other judicial and administrative mechanisms issued pursuant to other authorities, such as an 

enforcement order issued by a court, can delay the need for compliance with WQBELs. Today’s 

rule does not address those other mechanisms.

What Did EPA Consider?

EPA considered finalizing § 131.15, as proposed. Given the comments indicating that 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 87 of 123

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, however, 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).54 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 

 54 40 CFR 122.44(d)(1); 122.44(d)(1)(vii)(A).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 88 of 123

or tribal laws and regulations. Permitting authorities can include such permit compliance 

schedules without an EPA-approved permit compliance schedule authorizing provision because 

such limits and conditions are not themselves designed to implement the state’s or authorized 

tribe’s approved WQS.

G. Other Changes

What Does Today’s Rule Provide and Why?

Regulatory provisions can only be effective if they are clear and accurate. Even spelling and 

grammar mistakes, and inconsistent terminology can cause confusion. Today’s rule, therefore, 

corrects 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), and § 131.20(b). The rule finalizes eight of the provisions, as 

proposed. However, based on public comments, EPA revised how it is correcting § 131.5(a)(2), 

§ 131.12(a)(2), and § 131.20(b). EPA notes that in correcting these minor pre-existing errors, it 

did not reexamine the substance of these regulatory provisions. Thus EPA did not reopen these 

regulatory provisions.

With regard to the revision at § 131.5(a)(2), today’s rule adds a reference to § 131.11 and “sound 

scientific rationale” to make the link clear. Commenters expressed concern that “sound scientific 

rationale” was an ambiguous and subjective point of reference and may interfere with the ability 

of states and authorized tribes to use narrative criteria. By linking the two regulatory sections, 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 89 of 123

today’s rule makes clear that this provision does not contradict the requirements and flexibilities 

provided in § 131.11.

Today’s rule at § 131.12(a)(2) correctly cites to the CWA language and makes no other changes.

EPA proposed revising “assure” to “ensure,” however, today’s rule does not include this change. 

Commenters raised the question of whether the revision changed the meaning of the provision. 

Although both “assure” and “ensure” mean “to make sure,” 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. 

Today’s rule at § 131.20(b) clarifies three points. First, it clarifies that 40 CFR Part 25 is EPA’s 

public participation regulation 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. Finally, it clarifies that 

public participation 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 90 of 123

of whether the revision is a result of triennial review per § 131.20(a). 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 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 91 of 123

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 today’s rule, beyond the burden and cost of the WQS regulation already in place. 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. This rule does not establish any requirements directly applicable to regulated point sources 

or nonpoint sources of pollution, although these entities could potentially incur costs as a result 

of changes to WQS that states and authorized tribes choose to adopt based on today’s final rule. 

States and authorized tribes always have the discretion to adopt new or revised WQS 

independent of today’s final rule that could result in costs to point sources and nonpoint sources. 

EPA’s economic analysis and an explanation for how EPA derived its cost and burden estimates 

are documented in the Economic Analysis for the Water Quality Standards Regulatory Revisions 

(Final Rule) and can be found in the docket for this rule.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 92 of 123

EPA assessed the potential incremental burden and cost of today’s final rule using the same basic 

methodology it used to assess the potential incremental burden and cost of EPA’s proposed rule, 

including: (1) identifying the elements of today’s final rule that could potentially result in 

incremental burden and cost; (2) estimating the incremental number of labor hours states and 

authorized tribes may need to allocate in order to comply with those elements of today’s final 

rule; and (3) estimating the cost associated with those additional labor hours.

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, today’s 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, today’s rule requires states and authorized tribes to proactively reevaluate WQS 

variances that have a term longer than five years no less frequently than every five years and to 

submit the results of each reevaluation to EPA within 30 days of completion. EPA also revised 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 93 of 123

certain economic assumptions based on additional information obtained independently by EPA 

and in response to stakeholder feedback.

The potential incremental burden and cost of today’s rule include five categories: (1) one-time 

burden and cost associated with state and authorized tribal rulemaking activities when some 

states and authorized tribes may need to adopt new or revised provisions into their WQS (e.g., 

modify antidegradation policy, revise WQS variance procedures if the state or authorized tribe 

has chosen to adopt such a procedure, or adopt 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-by-water body approach; documenting and 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 94 of 123

potential cost savings associated with a provision in today’s 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 today’s 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

Variances -- -- -- 51,840 -

233,280 $2.54 - $11.43

National Total 54,450 -

108,900

$2.67 -

$5.34 $0.18 - $0.36 106,425 -402,780 $5.24 - $19.73

‘--‘ = not applicable

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

1. Although EPA expects one-time rulemaking activity costs to be incurred over an initial three-year 

period, it annualized costs at a three percent discount rate over 20 years for comparative purposes.

Summary of Potential Incremental Burden and Cost to EPA1

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

Hours4 FTEs5 Hours per 

year4

FTEs per 

year5

$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
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 95 of 123

1. Assuming that the incremental burden and costs to EPA are equal to 20 percent of the burden and 

costs to states and authorized tribes. 

2. $0.53 million ($2.67 million × 20 percent) to $1.07 million ($5.34 million × 20 percent)

3. Although EPA expects these one-time costs to be incurred over an initial three-year period, the costs 

are annualized at three percent discount rate over 20 years for comparative purposes.

4. Total costs to the Agency divided by hourly wage rate ($75.41 per hour).

5. Burden hours to the Agency divided by hours worked by full-time equivalent (FTE) employees per 

year (2,080 hours per year).

6. $1.05 million ($5.24 million × 20 percent) to $3.95 million ($19.73 million × 20 percent)

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.

1. Although EPA expects states and authorized tribes to incur rulemaking costs over an initial three-year 

period, it annualized one-time costs at a three percent discount rate over 20 years for comparative 

purposes.

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).

EPA also evaluated the potential benefits associated with this rule. States and authorized tribes 

will benefit from these revisions to the WQS regulation by better utilization of available 

regulatory tools that allow them the flexibility to implement their WQS programs in an efficient 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 96 of 123

manner. Stakeholders and the public will benefit from greater transparency and open public 

participation. 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. More efficient and effective implementation of state and 

authorized tribal WQS provides a variety of economic benefits associated with cleaner water, 

including the availability of clean, safe, and affordable drinking water; water of adequate quality 

for agricultural and industrial use; and water quality that supports the commercial fishing 

industry and higher property values. Nonmarket benefits of this rule include greater recreational 

opportunities and the protection and improvement of public health. 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/laws-regulations/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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 97 of 123

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). Today’s 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 today’s rule, EPA assumes that all administrative burden associated with today’s rule, 

summarized in section III, is associated with information collection.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 98 of 123

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 EPA-approved 

WQS. The respondents are in NAICS code 92411 “Administration of Air and Water Resources 

and Solid Waste Management Programs,” formerly SIC code #9511.

Respondent’s obligation to respond: The collection is required pursuant to CWA section 303(c), 

as implemented by the revisions to 40 CFR Part 131.

Estimated number of 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, for 

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).

Total estimated cost: Total estimated annual incremental costs range from $6.13 million to 

$21.51 million.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 99 of 123

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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 100 of 123

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 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 today’s 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 101 of 123

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, 48 Indian tribes have been approved 

for treatment in a manner similar to a state (TAS) for CWA sections 303 and 401. Of the 

48 tribes, 40 have EPA-approved WQS in their respective jurisdictions. All of these 

authorized tribes are subject to this regulation. However, this rule might impact other 

tribes as well because federal, state, or authorized tribal WQS may apply to waters 

adjacent to the tribal waters. 

EPA consulted and coordinated with tribal officials consistent with EPA’s Policy on 

Consultation and Coordination with Indian 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 102 of 123

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 today’s 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. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 103 of 123

I. National Technology Transfer and Advancement Act

This rulemaking does not involve technical standards. 

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations

EPA has determined that today’s rule will not have disproportionately high and adverse human 

health or environmental effects on minority or low-income 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. In addition, this rule is national in 

scope and, therefore, is not specific to a particular geographic area(s).

K. Congressional Review Act (CRA)

This action is subject to the CRA, and EPA will submit a rule report to each House of the 

Congress and to the Comptroller General of the United States. This action is not a “major rule” 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 131.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 104 of 123

Environmental protection, water quality standards, regulatory revision, Administrator’s 

determination, designated uses, antidegradation, water quality standards variances, triennial 

reviews, water quality criteria, compliance schedule authorizing provisions.

PLACEHOLDER FOR 

SIGNATURE BLOCK

AND DATE

For the reasons stated in the preamble, EPA finalizes amendments to 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. Amend § 131.2 by revising the first sentence to read as follows:

§ 131.2 Purpose.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 105 of 123

A water quality standard defines the water quality goals of a water body, or portion thereof, 

by designating the use or uses to be made of the water and by setting criteria that protect the 

designated uses. * * *

3. Amend § 131.3 by revising paragraphs (h) and (j), and adding paragraphs (m), (n), (o),

(p), and (q) to read as follows:

§ 131.3 Definitions.

* * * * *

(h) Water quality limited segment means any segment where it is known that water quality 

does not meet applicable water quality standards, and/or is not 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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 106 of 123

* * * * *

(m) Highest attainable use is the modified aquatic life, wildlife, or recreation use that is both 

closest to the uses specified in section 101(a)(2) of the Act and attainable, based on the 

evaluation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use and any other 

information or analyses that were used to evaluate attainability.

(n) Practicable, in the context § 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. Amend § 131.5 by:
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 107 of 123

a. Revising paragraphs (a)(1) and (a)(2);

b. Redesignating paragraphs (a)(3) through (a)(5) as (a)(4) through (a)(6) and adding a new 

paragraph (a)(3); and

c. Revising paragraph (b).

The revisions and additions read as follows:

§ 131.5 EPA authority.

(a) * * *

(1) Whether the State has adopted designated water uses which 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 consistent with § 131.12, and 

whether any adopted antidegradation implementation methods are consistent with § 131.12;

* * * * *

(b) If EPA determines that the State’s or Tribe’s water quality standards are consistent with the 

factors listed in paragraphs (a)(1) through (a)(6) of this section, EPA approves the standards. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 108 of 123

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 (a)(6) of this section. EPA may also promulgate a new 

or revised standard when necessary to meet the requirements of the Act.

* * * * *

Subpart B—Establishment of Water Quality Standards

5. Amend § 131.10 by revising paragraph (g) introductory text and paragraphs (a), (j), and 

(k) to 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 109 of 123

shall a State adopt waste transport or waste assimilation as a designated use for any waters of the 

United States.

* * * * *

(g) States may designate a use, or remove a use that is not an existing use, if the State 

conducts a use attainability analysis as specified in § 131.10(j) that demonstrates attaining the 

use is not feasible because of one of the six factors in this paragraph. If a State adopts a new or 

revised water quality standard based on a required use attainability analysis, the State shall also 

adopt the highest attainable use.

* * * * *

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

131.10(g), whenever:

(1) The State designates for the first time, or has previously designated for a water body, 

uses that do not 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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 110 of 123

(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 sub-category of a use specified in section 101(a)(2) of the Act 

that requires criteria at least as stringent as previously applicable, or

(3) The State wishes to remove or revise a designated use that is a non-101(a)(2) use. In 

this instance, as required by § 131.10(a), the State must submit documentation justifying how its 

consideration of the use and value of water for those uses listed in § 131.10(a) appropriately 

supports the State’s action, which may be satisfied through a use attainability analysis.

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

follows:

§ 131.11 Criteria.

(a) * * *

(2)Toxic Pollutants. States must review water quality data and information on discharges to 

identify specific water bodies where toxic pollutants may be adversely affecting water quality or 

the attainment of the designated water use or where the levels of toxic pollutants are at a level to 

warrant concern and must adopt criteria for such toxic pollutants applicable to the water body 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 111 of 123

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 

Quality Planning and Management Regulations (40 CFR part 130).

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

* * * * *

7. Amend § 131.12 by revising the section heading and paragraphs (a) introductory text and 

(a)(2), and adding paragraphs (a)(2)(i), (a)(2)(ii), and (b) to read as follows:

§ 131.12 Antidegradation policy and implementation methods.

(a) The State shall develop and adopt a statewide antidegradation policy. The 

antidegradation policy shall, at a minimum, be consistent with the following:

* * * * *

(2) Where the quality of the waters exceeds levels necessary to support the protection and

propagation of fish, shellfish, and wildlife and recreation in and on the water, that quality shall 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 112 of 123

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 (a)(2) of this section on 

a parameter-by-parameter basis or on a water body-by-water body basis. Where the State 

identifies waters for antidegradation protection on a water body-by-water body basis, the State 

shall provide an opportunity for public involvement on any decisions about whether the 

protections described in (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 (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 (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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 113 of 123

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 subpart B to read as follows:

§ 131.14 Water quality standards variances.

States may adopt WQS variances, as defined in § 131.3(o). Such a WQS variance is subject to 

the provisions of this section and 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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 114 of 123

(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 40 CFR 131.21(d)-(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 technologybased 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. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 115 of 123

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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 116 of 123

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 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.

(iii) A statement providing that the requirements of the WQS variance are 

either the highest attainable condition identified at the time of the 

adoption of the WQS variance, or the highest attainable condition later 

identified during any reevaluation consistent with (b)(1)(v) of this 

section, whichever is more stringent.

(iv) The term of the WQS variance, expressed as an interval of time from the 

date of EPA approval or a specific date. The term of the WQS variance 

must only be as long as necessary to achieve the highest attainable 

condition and consistent with the demonstration provided in paragraph 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 117 of 123

(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. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 118 of 123

(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 non-101(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. The requirements at

(b)(2)(i)(A) of this section may be used to satisfy this. 

(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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 119 of 123

those activities identified through a Pollutant Minimization Program, which serve 

as milestones for the WQS variance.

(iii) In addition to (i) and (ii) of this section, for a WQS variance that applies to 

a water body or waterbody segment:

(A) Identification and documentation of any cost-effective and 

reasonable best management practices for nonpoint source controls 

related to the pollutant(s) or water quality parameter(s) and water body 

or waterbody segment(s) specified in the WQS variance that could be 

implemented to make progress 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 were implemented to address the pollutant(s) or 

water quality parameter(s) subject to the WQS variance and the water 

quality progress achieved.

(c) Implementing WQS variances in NPDES permits: A WQS variance serves as the 

applicable water quality standard for implementing NPDES permitting requirements 

pursuant to § 122.44(d) for the term of the WQS variance. Any limitations and 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 120 of 123

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 subpart B 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. Amend § 131.20 by revising paragraphs (a) and (b) to read as follows:

§ 131.20 State review and revision of water quality standards.

(a) State Review. The State shall from time to time, but at least once every 3 years, hold 

public hearings for the purpose of reviewing applicable water quality standards adopted pursuant 

to §§ 131.10–131.15 and Federally promulgated water quality standards and, as appropriate, 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 121 of 123

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 consistent with CWA section 

303(c)(1) and the requirements of § 131.20(c).

(b) Public Participation. The State shall hold one or more public hearings for the 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. Amend § 131.22 by revising paragraph (b) to read as follows:

§ 131.22 EPA promulgation of water quality standards.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 122 of 123

* * * * *

(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 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. Amend § 131.34 by revising paragraph (c) to read as follows:

§ 131.34 Kansas.

* * * * *
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

Water Quality Standards Regulatory Revisions

Page 123 of 123

(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. Amend § 131.40 by revising paragraph (c) to read as follows:

 

§ 131.40 Puerto Rico.

* * * * *

(c) Water quality standard variances. The Regional Administrator, EPA Region 2, is 

authorized to grant variances from the water quality standards in paragraphs (a) and (b) of this 

section where the requirements of § 131.14 are met.