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E.O. 12866_OW WQS RIN 2040-AF 16 NPRM FRN_20130722.

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA–HQ–OW–2010–0606; FRL_XXXX–X]

RIN 2040–AF 16

Water Quality Standards Regulatory Clarifications

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

________________________________________________________________

SUMMARY: The Environmental Protection Agency (EPA) is proposing changes to the 

federal water quality standards (WQS) regulation which helps implement the Clean 

Water Act. The changes will improve the regulation’s effectiveness in restoring and 

maintaining the chemical, physical, and biological integrity of the nation’s waters. The 

EPA is seeking comments from interested parties on these proposed revisions. The core 

of the current regulation has been in place since 1983; since then, a number of issues 

have been raised by states, tribes, or stakeholders or identified by the EPA in the 

implementation process that will benefit from clarification and greater specificity. The 

proposed rule addresses the following key program areas: (1) Administrator’s 

determinations that new or revised WQS are necessary, (2) designated uses, (3) triennial 

reviews, (4) antidegradation, (5) variances to WQS, and (6) compliance schedule 

authorizing provisions.

DATES: Comments must be received on or before [INSERT DATE 90DAYS AFTER 

PUBLICATION IN THE FEDERAL REGISTER].

ADDRESSES: Submit your comments, identified by Docket identification (ID) No.

EPA–HQ–OW–2010–0606, by one of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the online 

instructions for submitting comments.

Email: ow-docket@epa.gov.

Mail: Water Docket, Environmental Protection Agency, Mail Code 2822T, 

1200 Pennsylvania Ave., NW., Washington, DC 20460. Attention: Docket ID 

No. EPA–HQ–OW–2010–0606.

Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 Constitution 

Ave., NW., Washington, DC 20004, Attention: Docket ID No. EPA–HQ–OW–

2010–0606. Such deliveries are only accepted during the Docket Center’s normal 

hours of operation. Special arrangements should be made for deliveries of boxed 

information by calling 202-566-2426.
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Instructions: Direct your comments to Docket ID No. EPA–HQ–OW–2010–0606. The 

EPA’s policy is that all comments received will be included in the public docket without 

change and may be made available online at http://www.regulations.gov, including any 

personal information provided, unless the comment includes information claimed to be 

Confidential Business Information (CBI) or other information whose disclosure is 

restricted by statute. Do not submit information that you consider to be CBI or otherwise 

protected through http://www.regulations.gov or email. The http://www.regulations.gov

website is an “anonymous access” system, which means the EPA will not know your 

identity or contact information unless you provide it in the body of your comment. If you 

send an email comment directly to the EPA without going through www.regulations.gov 

your email address will be automatically captured and included as part of the comment 

that is placed in the public docket and made available on the Internet. If you submit an 

electronic comment, the EPA recommends that you include your name and other contact 

information in the body of your comment and with any disc you submit. If the EPA 

cannot read your comment due to technical difficulties and cannot contact you for 

clarification, the EPA may not be able to consider your comment. Electronic files should 

avoid the use of special characters, any form of encryption, and be free of any defects or 

viruses. For additional information about the EPA’s public docket visit the Docket Center 

homepage at http://www.epa.gov/epahome/dockets.htm.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. 

Although listed in the index, some information is not publicly available (e.g., CBI or 

other information whose disclosure is restricted by statute). Certain other materials, such 

as copyrighted material, will be publicly available only in hard copy. Publicly available 

docket materials are available either electronically in http://www.regulations.gov or in 

hard copy at the Office of Water Docket Center, EPA/DC, EPA West, Room 3334, 

1301 Constitution Ave., NW., Washington, DC. 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; the telephone number for the 

Office of Water Docket Center is (202) 566–2426.

FOR FURTHER INFORMATION CONTACT: Janita Aguirre, Standards and Health 

Protection Division, Office of Science and Technology (4305T), Environmental 

Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460; telephone 

number: 202–566–1860; fax number: 202–566–0409; email address:

WQSRegulatoryClarifications@epa.gov.

SUPPLEMENTARY INFORMATION: This supplementary information section is 

organized as follows:

Table of Contents

I. General Information

A. Does This Action Apply to Me?

B. What Should I Consider as I Prepare My Comments for the EPA?

II. Background
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A. What is the Statutory and Regulatory History of the WQS Regulation and 

Program?

B. How has the EPA Engaged the Public and Received Input in Considering 

Updates and Improvements to the Federal WQS Regulation?

C. Why is the EPA Proposing Changes to the Federal WQS Regulation?

III. Program Areas for Proposed Regulatory Changes

A. Introduction

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

C. Designated Uses

D. Requirements of Triennial Reviews

E. Antidegradation Implementation

F. WQS Variances

G. Provisions Authorizing the Use of Permit-Based Compliance Schedules

H. Other Changes

IV. When Does This Action Take Effect?

V. Economic Impacts on State and Tribal WQS Programs

VI. 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

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132 (Federalism)

F. Executive Order 13175

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.

I. General Information.

A. Does This Action Apply to Me?

State and tribal governments responsible for administering or overseeing water 

quality programs may be directly affected by this rulemaking, as states and authorized 

tribes1 may need to consider and implement new provisions, or revise existing provisions, 

in their water quality standards (WQS or standards). Entities such as industrial 

dischargers or publicly owned treatment works that discharge pollutants to waters of the 

United States may be indirectly affected by this rulemaking because WQS may be used in 

determining permit limits under the National Pollutant Discharge Elimination System 

 

1 Hereafter referred to as “states and authorized tribes” or “states and tribes.” “State” in the Clean Water 

Act and this document refers to a state, the District of Columbia, the Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands.
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(NPDES) or in implementing other Clean Water Act (CWA or the Act) regulatory 

programs. Citizens concerned with water quality and WQS implementation may also be 

interested in this rulemaking, although they might not be directly impacted. Categories 

and entities that may potentially be affected include the following:

Category Examples of potentially affected entities

States and Tribes States and authorized tribes (tribes eligible to administer 

WQS under the CWA).

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 intended to be exhaustive, but rather provides a guide for entities 

that may be directly or indirectly affected by this action. It lists the types of entities of 

which the EPA is aware could be potentially affected by this action. Other types of 

entities not listed in the table might be affected through implementation of WQS that are 

revised as a result of this rule. 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 Should I Consider as I Prepare My Comments for the EPA?

1. Resubmitting Relevant Comments from 2010 Stakeholder and Public Listening 

Sessions. 

From August through December 2010, the EPA held multiple listening sessions with 

stakeholders and the public, as well as consultation sessions with states, tribes, and 

representatives of state and local elected officials, concerning the general directions of 

this proposed rule. The EPA considered the views and comments received from these 

sessions in developing this proposal. The proposal published today has evolved 

substantially from the materials the EPA shared at that time. If you submitted comments 

in response to any of those sessions and wish for these comments to be considered during 

the public comment period for this proposed rulemaking, you must resubmit such 

comments to the EPA in accordance with the instructions outlined in this document.

2. Submitting Confidential Business Information (CBI). 

Do not submit this information to the EPA through http://www.regulations.gov or 

email. Clearly mark the part or all of the information that you claim to be CBI. For CBI 

information in a disc that you mail to the EPA, mark the outside of the disc as CBI and 

then identify electronically within the disc the specific information that is claimed as 

CBI. In addition to one complete version of the comment that includes information 

claimed as CBI, a copy of the comment that does not contain the information claimed as 

CBI must be submitted for inclusion in the public docket. Information so marked will not 
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be disclosed except in accordance with procedures set forth in 40 Code of Federal 

Regulations (CFR) part 2.

3. Tips for Preparing Your Comments. 

When submitting comments, remember to:

Identify the rulemaking by docket number and other identifying information 

(subject heading, Federal Register date and page number).

Follow directions. The agency may ask you to respond to specific questions or 

organize comments by referencing a CFR part or section number.

Submit any and all comments on any portion of the rulemaking that you wish to 

be considered.

Explain why you agree or disagree, suggest alternatives, and substitute language 

for your requested changes.

Describe any assumptions and provide any technical information and/or data that 

you used.

If you provide an estimate of potential costs or burdens, explain how you arrived 

at your estimate in sufficient detail to allow for it to be reproduced.

Provide specific examples to illustrate your concerns, and suggest alternatives.

Explain your views as clearly as possible.

Make sure to submit your comments by the comment period deadline identified.

II. Background.

A. What is the Statutory and Regulatory History of the WQS Regulation and Program?

The CWA—initially enacted as the Federal Water Pollution Control Act 

Amendments of 1972 (Pub. L. 92‒500) and subsequent amendments—establishes the 

basic structure in place today for regulating pollutant discharges into the 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 for recreation in and on the 

water” (sections 101(a) and 101(a)(2)).

The CWA establishes the basis for the current WQS regulation and program. 

Section 301 of the Act provides that “the discharge of any pollutant by any person shall 

be unlawful” except in compliance with specific requirements of Title III and IV of the 

Act, including industrial and municipal effluent limitations specified under section 304 

and “any more stringent limitation, including those necessary to meet WQS, treatment 

standards or schedule of compliance established pursuant to any State law or regulation.”

Section 303(c) of the Act addresses the development of state and authorized tribal WQS 

and provides for the following:

(1) WQS shall consist of designated uses and water quality criteria based upon such 

uses;
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(2) States and authorized tribes shall establish WQS considering the following 

possible uses for their waters – propagation of fish, shellfish and wildlife, recreational 

purposes, public water supply, agricultural and industrial water supplies, navigation, and 

other uses;

(3) State and tribal standards must protect public health or welfare, enhance the 

quality of water, and serve the purposes of the Act;

(4) States and tribes must review their standards at least once every 3 years; and

(5) The EPA is required to review any new or revised state and tribal standards, and 

is also required to promulgate federal standards where the EPA finds that new or revised 

state or tribal standards are not consistent with applicable requirements of the Act or in 

situations where the Administrator determines that federal standards are necessary to 

meet the requirements of the Act.

The EPA established the core of the current WQS regulation in a final rule issued in 

1983.2This rule strengthened previous provisions that had been in place since 1977 and 

moved them to a new 40 CFR part 131 (54 FR 51400). The resulting regulation describes 

how the WQS envisioned in the CWA are to be administered. It clarifies the content of 

standards and establishes more detailed provisions for implementing the provisions of the 

Act. The following are examples of how the regulation has interpreted and implemented 

the CWA provisions regarding standards:

Establishes procedures to recognize the importance of designating beneficial uses 

to achieve the CWA section 101(a)(2) interim goal with regard to protecting 

aquatic life and recreational uses, and to provide states and tribes the option of 

establishing sub-categories of uses, such as cold water and warm water aquatic 

life designations (§131.10).

Provides detail concerning the adoption of numeric water quality criteria, 

including authorizing the modification of the EPA’s national recommended 

criteria to reflect site-specific conditions, the use of criteria methodologies 

different from the EPA’s recommendations so long as they are scientifically 

defensible, and the use of narrative criteria where numeric criteria cannot be 

derived or to supplement numeric criteria (§131.11).

Incorporates and clarifies the Act’s emphasis on the importance of preserving 

existing uses and identifying and preserving high quality and outstanding 

resource waters through longstanding antidegradation provisions. These 

provisions are designed to protect existing uses and the level of water quality 

necessary to support these uses; to protect high quality waters and provide a 

transparent analytic process for states and tribes to determine whether limited 

degradation of such waters is appropriate and necessary (§131.12).

 

2

In this preamble, the EPA uses the term “water quality standards regulation” to mean subparts A, B, and 

C of part 131. These three subparts, comprising sections §§131.1 through 131.22, contain general 

provisions, requirements for establishing standards, and procedures for review and revision of standards, 

respectively. Part 131 also includes a subpart D that contains the text of WQS the EPA has promulgated to 

replace or augment state and tribal standards. 
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In support of the 1983 regulation, the EPA has issued a number of guidance 

documents, such as the “Water Quality Standards Handbook” (WQS Handbook)3, that

have provided 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. The EPA also developed the “Technical Support Document for Water 

Quality-Based Toxics Control”

4

(TSD) that provided additional guidance for 

implementing state and tribal WQS.

The part 131 regulation has been modified twice since 1983. First, in 1991 the EPA 

added §§131.7 and 131.8 regarding tribes, pursuant to section 518 of the CWA (56 FR 

64893). Section 518, which was enacted in 1987, included provisions extending the 

ability to participate in the WQS program to Indian tribes. Second, in 2000 the EPA 

promulgated §131.21(c), commonly known as the “Alaska Rule,” to clarify that new and 

revised standards adopted by states and tribes and submitted to the EPA after May 30, 

2000 become applicable standards for CWA purposes only when approved by the EPA

(66 FR 24641). 

B. How has the Public Provided EPA Input on the National WQS Program in the Past? 

The EPA received comments, data, and information from over 6,000 commenters in 

developing “Final Water Quality Guidance for the Great Lakes System” in 1995 (60 FR 

15366). The final Guidance represented more than six years of intensive, cooperative 

efforts that included participation by the eight Great Lakes states, the EPA, and other 

Federal agencies in open dialogue with citizens, local governments, municipalities, 

academia, the environmental community, and industries located in the Great Lakes 

ecosystem. This process entailed a thorough review and analysis of the federal water 

quality program and opportunities for greater clarity, focus, and improved 

implementation. The final Guidance is codified in 40 CFR part 132 and helps establish 

consistent, enforceable, and long-term protections from all types of pollutants, with shortterm emphasis on the types of bio-accumulative contaminants that accumulate in the food 

web and pose a threat to the Great Lakes System. While not all provisions of the Final 

Guidance may be necessary or appropriate for the national Water Quality Standards 

Program, the EPA considered the input received from the public through the development 

of the Final Guidance during the preparation of this proposed rule.

In 1998, the 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 a 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 tribal WQS

programs. (63 FR 36742). In response, the EPA received over 3,200 specific written 

comments from over 150 comment letters. The EPA also held three public meetings 

during the 180-day comment period where additional comments were received and 

discussed.

 

3

First edition, December 1983; second edition, EPA 823-B-94-005a, August 1994.

4

First edition, EPA 440/4-85-032, September, 1985; revised edition, EPA 505/2-90-001, March 1991.
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Although the EPA chose not to move forward with a rulemaking after the ANRPM, 

as a result of the input received, the EPA identified a number of high priority issue areas 

for which the Agency has developed guidance, provided technical assistance and

continued further discussion and dialogue to assure more effective program 

implementation. For example, many ANPRM commenters expressed the need for 

additional assistance on establishing designated uses of water bodies and the process to 

follow when making designated uses more or less protective. In order to receive input 

from a broad set of stakeholders on these topics, the EPA held a follow-up national 

symposium on designated uses on June 3–4, 2002 in Washington, DC. Approximately 

200 interested citizens, government officials, and regulated parties attended this open 

meeting, which included presentations from a variety of stakeholders and an expert panel 

representing different viewpoints.

5

In addition, the EPA held four co-regulator workshops 

between February 2005 and April 2006 with state, interstate, and tribal partners, and 

gathered further input and feedback on the establishment, adjustment, and 

implementation of designated uses.6

C. Why is the EPA Proposing Changes to the Federal WQS Regulation?

The core requirements of the current WQS regulation have been in place for over30

years. These requirements have provided a strong foundation for water quality-based 

controls, including water quality assessments, impaired waters lists, and total maximum 

daily loads (TMDLs) under CWA section 303(d), as well as for water quality-based 

effluent limits (WQBELs) in NPDES discharge permits under CWA section 402. As with 

the development and operation of any program, however, a number of policy and 

technical issues have recurred over the past 30 years in individual standards reviews, 

stakeholder comments, and litigation that the EPA believes would be addressed and 

resolved more efficiently by clarifying, updating and revising the federal WQS regulation

to assure greater public transparency, better stakeholder information, and more effective 

implementation.

From 2008 through 2010, the EPA held ongoing discussions with state and tribal 

partners and other stakeholders. These discussions addressed a wide range of issues, from

which a subset has been identified as significant areas of continuing concern. In 2010, the 

EPA held listening sessions with the public, states and tribes to obtain feedback on this 

subset of issues. The agenda, background material, list of participants and the public 

transcripts may be viewed at 

http://water.epa.gov/lawsregs/lawsguidance/wqs_listening.cfm#records. Section III of 

the EPA’s proposal describes the key areas the EPA has chosen to address based on input 

received and the EPA’s proposed regulatory approaches. The EPA believes that states, 

tribes, other stakeholders, and the public will benefit from clarification in these key areas 

to better understand and make proper use of available CWA tools and flexibilities, while 

maintaining open and transparent public participation. Clear regulatory requirements and 

 

5

Proceedings from the national symposium on designated uses can be found at 

http://water.epa.gov/scitech/swguidance/standards/uses/symposium_index.cfm.

6 A summary of the co-regulator workshops and a link to the use attainability analysis (UAA) case studies 

can be found at http://water.epa.gov/scitech/swguidance/standards/uses/uaa/info.cfm. 
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improved implementation will provide a more transparent and well-defined pathway for 

restoring and maintaining the biological, chemical, and physical integrity of the nation’s 

waters. The changes the EPA is proposing today add or modify specific regulatory 

provisions to address key areas described below.

III. Program Areas for Proposed Regulatory Clarifications.

A. Introduction.

As discussed in section II.C, the EPA has had ongoing dialogue with states, tribes

and stakeholders on key issues that are central to assuring effective implementation of the 

WQS program. As part of this process, the Agency has considered several fundamental 

questions in evaluating opportunities to improve implementation of the WQS program 

including which recurring implementation issues would benefit most from a regulatory 

clarification or update, whether there are emerging issues that could be more effectively 

addressed through regulatory revisions, whether the regulation continues to have the 

appropriate balance of consistency and flexibility for states and tribes, and whether the 

resulting program effectively facilitates public participation in standards decisions.

As a result of this evaluation and consideration of continuing input from states, tribes

and stakeholders, the EPA is proposing changes to key program areas of its WQS 

regulation at 40 CFR part 131 that the Agency believes will result in improved regulatory 

clarity and more effective program implementation, and lead to environmental 

improvements in water quality. This proposed rulemaking requests comment on 

regulatory revisions in the following six key issue 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) compliance schedule 

authorizing provisions.

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

1. The EPA Proposal.

The EPA is proposing to amend paragraph (b) of §131.22 to add a requirement that 

an Administrator’s determination must be signed by the Administrator or his or her duly 

authorized delegate, and must include a statement that the document is a determination 

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

2. Background and Rationale for Revision. 

Section 303(c)(4)(B) of the CWA provides the EPA Administrator with authority to 

determine that a new or revised WQS is necessary to meet the CWA requirements, 

typically in those situations where a state or tribe fails or is unable to act in a manner 

consistent with the CWA. Such a determination is made at the Administrator’s discretion, 

after evaluating all relevant factors. An Administrator’s determination triggers the 

requirement for the EPA to promptly prepare and publish proposed regulations setting 

forth a revised or new WQS for the waters of the United States involved, and for the EPA

to promulgate such WQS unless the state or tribe adopts and the EPA approves such 

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The EPA is concerned that the process whereby the Administrator determines that 

new or revised standards are necessary is not always clearly understood or interpreted by 

the public and stakeholders. In some instances, this lack of understanding has led to a 

mistaken conclusion that the EPA has made a CWA 303(c)(4)(B) determination when, in 

fact, the EPA did not make nor intend to make a determination. For example, Agency

memoranda or documents articulating areas where states’ WQS may need improvements 

have sometimes been construed or alleged by stakeholders to be official Administrator 

determinations that obligate the EPA to propose and promulgate federal WQS for such 

states. In order to ensure effective implementation of the national WQS program, to 

provide direct, clear, and transparent feedback on state and tribal actions, and to maintain 

an open and constructive dialogue with states, tribes and stakeholders on important water 

quality issues, it is essential that the EPA have the ability to provide feedback, and states

and tribes have the opportunity to consider and evaluate the Agency’s views, without fear 

of litigation triggering a duty on the part of the EPA to propose and promulgate WQS 

before either a state, tribe or the Agency believes such a course is appropriate or 

necessary.

The EPA believes that today’s revision would establish a more transparent process 

for the Administrator to announce any determination made under section 303(c)(4)(B) of 

the Act. Such a revision will allow the EPA to effectively provide direct and specific 

written recommendations to states and tribes on areas where WQS improvements should 

be considered, without the possibility that such recommendations will be construed as a 

determination that obligates the EPA to propose and promulgate new or revised 

standards.

The public’s ability under Section 553(e) of the Administrative Procedure Act

(5 U.S.C. 553(e)) to petition the EPA to issue, amend, or repeal a rule, would not be 

affected by this proposed revision.

The EPA invites comments on the proposed amendment to paragraph (b) of §131.22. 

The EPA also invites comment on any other options it should consider or on the 

interpretations expressed in this section.

C. Designated Uses.

1. The EPA Proposal. 

First, the EPA is proposing to amend paragraph (g) at §131.10 to provide that where a 

state or tribe adopts new or revised water quality standards based on a use attainability 

analysis (UAA), it must adopt the highest attainable use (HAU). States and tribes must 

also adopt criteria, as specified in §131.11(a), to protect that use. The EPA is also 

proposing to add a definition of HAU at §131.3(m). Specifically, the EPA is proposing 

to define HAU as “the aquatic life, wildlife, and/or recreation use that is both closest to 

the uses specified in section 101(a)(2) of the Act and attainable, as determined using best 

available data and information through a use attainability analysis defined in §131.3(g).”

Second, the EPA is making appropriate edits to §131.10(g) to be clear that the factors 

listed in §131.10(g) must be used when a UAA is required by §131.10(j), and is 

restructuring §131.10(k) to clearly articulate when a UAA is not required.
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2. Background.

Designated uses communicate a state’s or tribe’s environmental management 

objectives for its waters and drive on-the-ground water quality decision-making and 

improvements. To establish appropriate WQS, states and tribes define the water quality 

goals of a water body first by designating the use(s) and second by setting criteria that 

protect those uses. WQS are the foundation for other CWA requirements applicable to a 

water body, such as WQBELs for point source dischargers, as well as assessment of 

waters and establishment of TMDLs for waters not meeting applicable WQS. Designated 

uses play such an important role in the effective implementation of the CWA. The EPA 

believes it is essential to provide clear and concise regulatory requirements for states and 

tribes to follow (1) when adopting a use specified in section 101(a)(2) or sub-categories 

of such uses for a water body for the first time, or (2) when removing or revising a

currently adopted use specified in section 101(a)(2) of the Act, or a sub-category of such 

a use. This is particularly important in light of recurring input and questions on this issue 

and the potential for conflicting interpretations and inconsistent case-by-case WQS 

program implementation.

Under section 303 (33 U.S.C. 1313) of the CWA, states and authorized tribes are 

required to develop WQS for waters of the United States within their state. WQS shall 

include designated use or uses to be made of the water and criteria to protect those uses. 

Such standards shall be established taking into consideration the use and value of waters 

for public water supplies, propagation of fish and wildlife, recreation, agricultural uses, 

industrial uses, navigation and other purposes (CWA 303(c)(2)(A)). Designated uses are 

defined at 40 CFR 131.3(f) as the “uses specified in water quality standards for each 

water body or segment whether or not they are being attained.” A “use” is a particular 

function of, or activity in, a particular water body that requires a specific level of water 

quality.

Section 101(a)(2) of the CWA establishes the national goal that “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” be achieved 

by July 1, 1983. CWA section 303(c)(2)(A) requires state and tribal WQS to “protect the 

public health or welfare, enhance the quality of the water and serve the purposes of this 

[Act].” The WQS regulation at 40 CFR part 131 interprets and implements these 

provisions through requirements that WQS protect the uses specified in section 101(a)(2) 

of the Act unless those uses are shown to be unattainable, effectively creating a rebuttable 

presumption of attainability.7Thus, it has been the EPA’s interpretation that the uses 

specified in section 101(a)(2) of the Act are presumed attainable unless a state or tribe 

affirmatively demonstrates through a UAA8that 101(a)(2) uses are not attainable as 

provided by one of six regulatory factors at §131.10(g).9

 

7

See 40 CFR 131.2; 131.5(a)(4); 131.6(a),(f); 131.10(g),(j), (k).

8

See 40 CFR 131.3(g). A UAA is a structured scientific assessment of the factors affecting the attainment 

of the use that may include physical, chemical, biological, and economic factors as described in §131.10(g).

9 EPA’s “rebuttable presumption” that the uses specified in CWA section 101(a)(2) are presumed 

attainable, unless demonstrated to be unattainable through a UAA, has been upheld in Idaho Mining 

Association v. Browner, 90 F. Supp. 2d 1078 (D. Idaho 2000).
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The current WQS regulation at 40 CFR 131.10 requires states and tribes to specify 

appropriate uses to be achieved and protected; requires that WQS ensure attainment and 

maintenance of WQS of downstream waters; allows for sub-categories of uses (e.g., to 

differentiate between cold water and warm water fisheries) and seasonal uses; describes

when uses are attainable; lists six factors of which at least one must be satisfied to justify 

removal of uses specified in Section 101(a)(2) that are not existing uses; prohibits 

removal of existing uses; requires states and authorized tribes to revise WQS to reflect

uses that are presently being attained but not designated; and establishes when a state or 

tribe is or is not required to conduct a UAA. States and tribes have flexibility when 

managing their designated uses consistent with the CWA and implementing regulation. 

More specifically, the current WQS regulation requires a UAA when designating 

uses that do not include the uses specified in section 101(a)(2) of the CWA, when 

removing a designated use specified in section 101(a)(2) of the Act, or when adopting 

sub-categories of such uses that require less stringent criteria. The phrase “uses specified 

in section 101(a)(2) of the Act” refers to uses that provide for the protection and 

propagation of fish (including aquatic invertebrates), 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.

10 “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 of waters 

with the intent of reducing variability within the group. 40 CFR 131.10(c) provides that 

states and authorized tribes may adopt sub-categories of a use and set the appropriate 

criteria to reflect varying needs of such sub-categories of uses. States and tribes have 

broad discretion to determine the appropriate level of specificity to use in identifying and 

defining designated uses, and nothing in this proposal is intended to narrow that 

discretion. However, the EPA has found that the clearer, more accurate, and refined the 

designated uses are in describing the state’s or tribe’s objective for a water body, the 

more effective those use designations can be in driving the management actions 

necessary to restore and protect water quality.

11

The current regulation at §131.10(g) and (h)(1) provides that states and tribes may 

not remove a designated use if it would also remove an existing use unless a use requiring 

more stringent criteria is added. Existing uses are “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.” Existing uses are known to be “attained” when both the use and the 

water quality necessary to support the use has been achieved.12 The EPA recognizes, 

however, that all the necessary data may not be available. Where data may be limited,

inconclusive, or not available, states and tribes have discretion to determine whether an 

existing use has been attained, based on either the use or the water quality. It is important 

to note that the prohibition on removing an existing use is not intended to apply to a 

 

10http://water.epa.gov/scitech/swguidance/standards/upload/2000_10_31_standards_shellfish.pdf.

11 EPA notes that a use may meet the description of a “sub-category of a use specified in section 101(a)(2) 

of the Act,” but not provide an equal level of protection as a use specified in section 101(a)(2) of the Act. 

If a state wishes to designate such a sub-category, a UAA would be required, consistent with §131.10(j).

12 See http://water.epa.gov/scitech/swguidance/standards/upload/Smithee-existing-uses-2008-09-23.pdf.
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situation where the state or tribe wishes to remove a use where removal would result in 

improving the condition of a water body. The intent of the regulation is to further the 

objective in CWA section 101(a) to “restore and maintain the chemical, physical, and 

biological integrity” of the nation’s waters, not to prevent actions that make the water 

body more like its minimally impacted condition. For example, if a warm water fishery 

exists behind a dam, the existing use provision would not prevent the state from 

removing that dam because doing so would likely restore the natural cold water aquatic 

ecosystem. 

3. Rationale for Revision. 

Adoption of Highest Attainable Use

As discussed above, states and tribes have flexibility to designate and revise uses in 

accordance with the provisions of §131.10 which implements the requirement in 

303(c)(2)(A) that standards shall be set to serve the purposes of the Act as set forth in 

Section ) 101(a)(2) and 303(c)(2)(A). However, the EPA believes that it may be 

appropriate to provide greater clarity in the regulations implementing this requirement.

For example, as part of the UAA process, a state or 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 goals of the CWA are not served by simply removing the aquatic 

life use designation and applicable criteria without determining whether there is some

alternate 101(a)(2) use or subcategory of such a use that is feasible to attain. The UAA 

process can be used to identify the highest aquatic life use that is attainable (i.e., highest 

attainable use). Under today’s proposal, the state or tribe would be required to designate 

that highest attainable use. However, as noted above, states and tribes have broad 

discretion to determine the appropriate level of specificity to use in identifying and 

defining designated uses, and nothing in this proposal is intended to narrow that 

discretion. To further clarify this in rule text, the proposal would add the following 

language to 131.10(g): “To meet this requirement, States may, at their discretion, utilize 

their current use categories or subcategories, develop new use categories or 

subcategories, or adopt another use which may include a location-specific use.” Thus, 

while a state or tribe may wish to establish a new or revised use category or subcategory

to meet the proposed HAU requirement, the state or tribe could also comply with this 

requirement by adopting the highest attainable use from its currently established use 

categories or subcategories or by adopting a location-specific use, or another defensible 

approach.

The EPA’s current regulation at 40 CFR section §131.6(a) requires that each state’s or 

tribe's water quality standards submitted to the EPA for review must include "use 

designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the 

Act." Sections 131.10(g) and 131.10(j) implement the CWA by authorizing a state or 

tribe to designate uses that do not include the uses specified in section 101(a)(2) or to 

remove protection for a use specified in section 101(a)(2) (or subcategory of such a use) 

only through a UAA. If the state or tribe demonstrates through a UAA that a 101(a)(2) 
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use, or a subcategory of such a use, is not attainable, then in order to comply with this 

regulatory requirement, the state or tribe will need to adopt use designations that continue 

to serve the 101(a)(2) goal by protecting the highest attainable use unless the state or tribe 

has shown that no use specified in section 101(a)(2) is attainable. 

Today’s proposal is intended to clearly articulate a requirement to adopt the HAU in 

the EPA’s regulation. HAU is defined in today’s proposal as “the aquatic life, wildlife, 

and/or recreation use that is both closest to the uses specified in section 101(a)(2) of the 

Act and attainable, as determined using best available data and information through a use 

attainability analysis defined in §131.3(g).” With this definition, the EPA recognizes and 

affirms the primary role accorded to states and tribes under the CWA in establishing 

categories of designated uses and assigning those uses to specific water bodies within 

their jurisdiction. The EPA intends for states and tribes to use their existing use 

classification scheme to meet the HAU requirement whenever the state or tribe 

determines that it is appropriate to do so. The EPA is not requiring states and tribes to 

revise their use categorization scheme by developing new use categories or subcategories, 

although states and tribes are encouraged to develop them if they find it practical and 

appropriate to do so. While the EPA believes that there is often value in specifying more 

narrowly targeted aquatic life uses (e.g., warm water or cold water fishery), the EPA also 

recognizes that it may not be practical for states or tribes to adopt fine gradations of 

aquatic life uses in many cases. The proposed rule would thus not affect a state or tribe’s 

discretion to determine the appropriate level of specificity in establishing designated uses. 

When adopting the HAU, states and tribes must also adopt criteria to protect that

use, as specified in §131.11(a). Requiring the HAU to be adopted as an essential part of 

the UAA process is important to adequately implement both CWA sections 101(a)(2) and 

303(c)(2)(A). Where uses specified in section 101(a)(2) are unattainable, it is important 

that states and tribes still strive to attain uses that continue to serve the purposes of the 

Act and also enhance the quality of the water. 

In determining the HAU to adopt in place of an unattainable aquatic life, wildlife, 

and/or recreation use, states and tribes should use the same regulatory factors (at 40 CFR 

131.10(g)) and data analysis that were used to evaluate attainability. When conducting 

this review and soliciting input from the public, states and 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. Such a prospective analysis may 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.

Once a state or tribe has determined the HAU, there are several different approaches 

it may wish to consider for articulating the designated use in the relevant water quality 

standards regulations. The EPA’s intent is for a state or tribe to have the flexibility to 

choose its preferred approach for articulating the HAU in regulation. The EPA provides 
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the following example approaches, but does not intend states and tribes to be limited to 

only these approaches. The EPA invites comments on other approaches or examples that 

states and tribes could use when articulating the HAU, or examples of scenarios where 

the following approaches may not be appropriate. The EPA emphasizes that states and 

tribes are not required to develop new use categories or subcategories to meet the HAU 

requirement. :

1. Use a refined designated use structure that is already adopted into state or tribal

regulation: Where a state or tribe already has a refined designated use structure adopted 

into state regulations, they could consider adopting the “next best” attainable use that 

already exists in the use structure as the HAU. For example, consider a state with the 

following four aquatic life uses: exceptional, high, modified, and limited aquatic life 

use—each with associated dissolved oxygen criteria that protect the use. The state 

determines through a UAA (based on a factor at §131.10(g)) that a particular stream 

cannot attain the designated “high aquatic life use” and associated dissolved oxygen 

criterion due to a low head dam and resulting impoundment. Because the dam cannot be 

removed or operated in such a way as to attain the dissolved oxygen criteria needed to 

protect the expected biological community at the site, the state adopts the “modified 

aquatic life use” and dissolved oxygen criterion to protect the revised use. The UAA 

documents that the “modified aquatic life use” reflects the HAU despite the disturbed 

condition of the water body.

2. Revise the current designated use structure to include more refined uses and/or subcategories of uses: Some states or authorized tribes may not have a refined designated 

use structure adopted into their state or tribal regulations, but rather have a general use 

category expressed as a “general aquatic life use,” “fish and wildlife use,” “recreation 

use,” and so on. If a state or tribe finds that its only option upon determining that such a 

general use category is not attainable is to remove it altogether, a state or tribe may wish 

to consider revising its current designated use framework to include more refined uses 

and/or sub-categories, and adopt criteria to protect those uses.

For example, a state or tribe may be able to adequately demonstrate (consistent with 

40 CFR 131.10(g)(2)) that natural conditions or water levels preclude the attainment of a 

use and associated water quality criteria. The state or tribe may document that it is 

infeasible to attain an aquatic life use associated with fish because the water is naturally 

intermittent. However, intermittent streams provide essential habitat for different types of 

aquatic life (e.g., aquatic invertebrates). Such an aquatic life use is likely attainable if not 

already attained. Therefore, in this scenario the state or tribe may wish to adopt a refined 

“intermittent aquatic life use” and criteria to protect that use in its statewide designated 

use framework because such a use category reflects the naturally expected aquatic life 

use for intermittent streams that could be applied to multiple streams in the state. 

As another example, some states have chosen to refine their use categories to reflect 

the various biological communities that might be expected in a water body. If a state is 

interested in revising its current designated use structure, it may wish to define its uses 

based on the composition and structure of the aquatic life expected for each use with 

associated biological and dissolved oxygen criteria adopted into regulation. Incorporating 
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such refinements into designated uses allows the state to tailor its use designations to 

reflect the actual biological community expected. 

3. Designate a location-specific use and adopt criteria to protect that use: A state or tribe 

may determine that a use is unattainable for one particular parameter (e.g., altered pH due 

to highly mineralized geology, or a combined sewer overflow (CSO)-impacted use) or 

suite of parameters in a specific location. In such situations, the state or tribe may choose 

to adopt a use that more accurately reflects the location-specific expectations, such as a 

“pH limited aquatic life use,” a “habitat limited aquatic life use,” or a “minerals limited 

aquatic life use.” The state or tribe would then adopt a new set of criteria to protect that

use, but could adopt all the same criteria levels as were protective of the original use, 

except for the parameter or parameters limiting the location-specific use. Such an 

approach would not require a state or tribe to add the location-specific use in its 

framework, but it could do so if later if it finds that other waters will fall into the same 

category. 

The concept of HAU should not to be confused with “site-specific criteria.” A sitespecific criterion is designed to protect the current unchanged designated use, but the 

criterion value may be different from the statewide or otherwise applicable criterion 

because it is tailored to account for site-specific conditions that may cause a given 

chemical concentration to have a different effect on one site than on another. By contrast, 

the criterion supporting a newly established highest attainable use is designed to protect 

the revised use associated with a different aquatic community expected in the water body. 

In addition to today’s proposal requiring states and tribes to adopt the HAU, the EPA 

recommends that states and tribes consider the HAU during a triennial review. If new 

information becomes available during a triennial review to indicate that a use higher than 

what is currently designated is attainable, states and tribes should revise their WQS to 

reflect the HAU. As with the HAU requirement, states and tribes are not required to 

revise their currently established use categories during triennial review to allow for more 

refined designation of higher uses, though they may wish to consider doing so.

Revisions to clarify when a UAA is and is not required

The EPA’s proposal also revises §131.10(g) to clarify that the factors at §131.10(g) 

are only required to be considered when §131.10(j) requires a UAA. The current 

language in §131.10(g) is ambiguous on this point and thus has led to confusion as to 

whether §131.10(g) applies to all use revisions or only those actions addressed in 

§131.10(j). The EPA’s 1998 ANPRM stated that the EPA’s position, at the time, was 

that a UAA is not limited to actions addressed in §131.10(j). However, the EPA has 

implemented the CWA to focus on uses specified in §101(a)(2) and now believes that the 

better interpretation of its regulations is that the factors in 131.10(g) are only required to 

be considered when a state or tribe is demonstrating that a use specified in §101(a)(2) or a 

subcategory of such a use is not attainable through a UAA. The EPA’s interpretation is

supported by §131.10(j), that explains when a UAA is required, and §131.3(g) that 

defines a UAA as “a structured scientific assessment of the factors affecting the 
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attainment of the use which may include physical, chemical, biological, and economic 

factors as described in §131.10(g).” When §§131.3(g), 131.10(g) and (j) are read 

together, it is clear that the factors at §131.10(g) are only required to be considered when 

the state or tribe must do a UAA under §131.10(j). Today’s proposal adds language to 

§131.10(g) and §131.10(j) to clarify the relationship between these two provisions and 

the intent of these provisions to implement CWA sections 101(a)(2) and 303(c)(2)(A). 

For all other designated uses, today’s proposal uses the term “uses not specified in 

section 101(a)(2)” to refer to uses discussed in section 303(c)(2)(A) but not included in 

section 101(a)(2). Section 303(c)(2)(A) and the EPA’s regulation at §131.10(a) requires 

the state or authorized tribe to take into consideration the “use and value” of water for 

public water supplies, propagation of fish and wildlife, recreational purposes , 

agricultural, industrial and other purposes, and also taking into consideration their use 

and value for navigation. The UAA demonstration satisfies this requirement for uses 

specified in 101(a)(2). And while states and authorized tribes are not required by 

regulation to conduct a UAA using factors at §131.10(g) when designating and removing 

a use not specified in 101(a)(2), the EPA recognizes that UAAs may provide valuable 

information to a state or authorized tribe when deciding how to manage their waters and 

demonstrate consideration of a water’s “use and value.”

Finally, the EPA is proposing to clarify §131.10(k) to state when a UAA is not

required. Specifically, §131.10(k) is revised to articulate that a UAA is not required

when a state or authorized tribe designates or has designated uses specified in section 

101(a)(2) of the Act for a water body for the first time, removes a designated use that is 

not specified in section 101(a)(2) of the Act, or adopts a subcategory that requires criteria 

as stringent as the previously applicable criteria. The current structure of 131.10(j)(2) and 

131.10(k) could result in situations where a UAA is not required by 131.10(k) but is 

required by 131.10(j)(2) thus leading to confusion. The EPA intends to eliminate this 

confusion by restructuring 131.10(k) as proposed. 

The EPA invites comments on the proposed addition of 40 CFR 131.3(m), and the 

proposed amendments to §131.10(g), §131.10(j) and §131.10(k). The EPA also invites 

comment on any other options it should consider or on the interpretations expressed in 

this section.

D. Requirements of Triennial Reviews.

1. The EPA Proposal. 

The EPA is proposing to amend the triennial review requirements of paragraph (a) of 

§131.20 to clarify that a state or tribe shall re-examine its water quality criteria during its 

triennial review to determine if any criteria should be revised in light of any new or 

updated CWA section 304(a) criteria recommendations to assure that designated uses

continue to be protected.

2. Rationale for Revision. 

Sections 303(a) through (c) of the CWA require that states and tribes adopt WQS 

applicable to their interstate and intrastate waters and that the EPA review and approve or 
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disapprove these standards based on whether they are consistent with the Act. Section

303(c)(1) further requires states and tribes to hold public hearings at least once every 3

years for the purpose of reviewing applicable WQS and, as appropriate, modifying and 

adopting standards. The state or tribe decides whether and how to modify or adopt its 

WQS; however, any new or revised standards shall be submitted to the EPA for review 

and approval or disapproval.

The EPA adopted regulations in 1983 implementing these provisions at 40 CFR

131.20. This regulation requires that states and tribes hold a public hearing to review 

applicable WQS at least once every 3 years (i.e., a “triennial review”) and, as appropriate, 

modify and adopt standards. Public hearings on WQS provide an essential opportunity

for stakeholders and the general public to participate in the WQS-setting process to 

provide input and raise issues to appropriate officials. In addition, the regulation requires 

states and tribes to consider whether any new information has become available that 

indicates if uses specified in CWA section 101(a)(2) that were previously unattainable are 

now attainable. 40 CFR 131.20(c) provides that the results of these reviews be submitted 

to the EPA (see also §131.6(f)). 

Stakeholders have expressed concern that states and tribes may retain criteria in their 

WQS that are no longer protective of designated uses for multiple triennial review cycles, 

despite the availability of new or updated EPA CWA section 304(a) criteria 

recommendations. While states and tribes are not required to use EPA’s 304(a) criteria 

recommendations, the EPA agrees that it is important for states and tribes to consider any 

new or updated304(a) criteria as part of their triennial review, in order to ensure that state

or tribal water quality criteria reflect current science and protect applicable designated 

uses. In this regard, 40 CFR 131.20(a) requires that any waterbody segment with WQS 

that does not include the uses specified in CWA section 101(a)(2) be re-examined and 

updated if new information becomes available to indicate that previously unattainable

CWA section 101(a)(2) uses are now attainable. However, because 40 CFR 131.20(a) 

does not include a parallel statement regarding criteria that support these uses, states and 

tribes may not re-evaluate their existing criteria to ensure that the criteria continue to be 

protective of the designated uses when new or updated 304(a) criteria recommendations

become available. As a result, the EPA is proposing to include an explicit reference to 

304(a) recommended criteria at 131.20(a), to ensure that new or updated 304(a) criteria 

are considered during triennial review.

The EPA invites comments on the proposed amendments to paragraph (a) of 

§131.20. The EPA also invites comment on any other options it should consider or on the 

interpretations expressed in this section.

E. Antidegradation Implementation.

The EPA is proposing to amend several provisions of §131.12 related to 

implementing the antidegradation requirements. These include 1) clarifying the options 

available to states and tribes when identifying Tier 2 high quality waters, 2) clarifying 

that states and tribes must conduct an alternatives analysis in order to support state and 

tribal decision-making on whether to authorize limited degradation of high quality water, 

and 3) specifying that states and tribes must develop and make available to the public 
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implementation methods for their antidegradation policies. The EPA is also proposing to 

add language to §131.5(a) describing the EPA’s authority to review and approve or 

disapprove state-adopted or tribal-adopted antidegradation policies. The language at 

§131.5(a) will further specify that if a state or tribe has chosen to formally adopt 

implementation methods as water quality standards, the EPA would review whether those 

implementation methods are consistent with 131.12. 

Background.

Section 101(a) of the CWA emphasizes the prevention of water pollution and 

expressly includes the objective “to restore and maintain the chemical, physical and 

biological integrity of the Nation’s waters (33 U.S.C. 1251) (emphasis added). The 

antidegradation requirements that the EPA incorporated by regulation in 1983 into 40 

CFR 131.12 implement the maintenance aspect of CWA section 101(a) and are an 

essential component of the overall WQS program. Although designated uses and criteria 

are the primary tools states and tribes use to achieve the CWA 101(a) goals, 

antidegradation complements these by providing a framework for maintaining existing 

uses, for protecting waters that are either attaining or are of a higher quality than 

necessary to support the CWA 101(a)(2) goals, and for protecting state/tribal identified

Outstanding National Resource Waters (ONRWs). Antidegradation plays a critical role in 

allowing states and tribes to maintain and protect the valuable resource of high quality 

water by ensuring that decisions to allow a lowering of high quality water are made in a 

transparent public manner and are based on a sound technical record. 

In the Water Quality Act of 1987, Congress expressly affirmed the principle of 

antidegradation that is reflected in section 101 of the Act. In those amendments to the 

CWA, Congress incorporated a reference to antidegradation policies in section 

303(d)(4)(B) of the Act (33 U.S.C. 1313(d)(4)(B)): “Standard Attained – For waters 

identified under paragraph (1)(A) where the quality of such waters equals or exceeds 

levels necessary to protect the designated use for such waters or otherwise required by 

applicable WQS, any effluent limitation based on a total maximum daily load or other 

waste load allocation established under this section, or any WQS established under this 

section, or any permitting standard may be revised only if such revision is subject to and 

consistent with the antidegradation policy established under this section” (emphasis 

added). This provision not only confirms that an antidegradation policy is an integral part 

of the CWA, but also explains the relationship of the antidegradation policy to other 

CWA regulatory programs. 13 Antidegradation reviews are applicable to revisions to 

effluent limitations based on a TMDL, wasteload allocation, or water quality standard, 

but they are not required for revisions to a TMDL, wasteload allocation, or water quality 

standard.14 

 

13 PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700, 705 (1994) (“A 

1987 amendment to the Clean Water Act makes clear that section 303 also contains an ‘antidegradation 

policy... ’”).

14

 Native Village of Point Hope v. U.S. Envtl. Prot. Agency, No. 3:11-cv-00200-TMB, slip op. at 24-25 (D. 

Alaska Sept. 14, 2012).
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High quality waters provide support for aquatic life and recreation and support unique 

and significant ecologies and species habitat. These attributes confer a special degree of 

resiliency and resistance to adverse effects, particularly as the nation’s waters face an 

increasing degree of stress from anthropogenic influences. Therefore, maintenance and 

protection of high quality waters has never been more important. 

Protection of waters that meet or exceed levels necessary to support the CWA uses 

is central to supporting both economic and community growth and sustainability. Such

waters contribute to our public health, aquatic ecosystems, drinking water supplies, and 

to the welfare of families and communities. The health and growth of tourism, recreation, 

fishing, and businesses and the jobs they create rely on a sustainable source of clean 

water. Degradation of water quality may result in increasing public health risks, declining 

aquatic communities and ecological diversity, and increasing treatment costs that must be 

borne by ratepayers and local governments. Maintenance of waters that exceed levels 

necessary to support the CWA uses can sometimes save time and economic resources to a 

community in the long-term. Using an antidegradation program to prevent the 

degradation of a water body may be more cost-effective and efficient than long-term 

restoration efforts. In addition, maintaining a water body in its initial high quality 

condition helps ensure the preservation of unique attributes that may ultimately be 

impossible to fully restore in a number of situations. 

Currently, 40 CFR 131.12 requires states and tribes to adopt an antidegradation 

policy and identify implementation methods for that policy. The state’s or tribe’s policy 

must provide protection for all existing uses, hereafter referred to as “Tier 1” protection 

(40 CFR 131.12(a)(1)). The policy must also require the maintenance and protection of 

high quality (“Tier 2”) waters unless the state or authorized tribe finds that “allowing 

lower water quality is necessary” to accommodate “important economic or social 

development in the area in which the waters are located,” a process hereby referred to as 

“Tier 2 review” (40 CFR 131.12(a)(2)). Additionally, the policy must provide for the 

maintenance and protection of water quality in ONRWs, identified by the state or tribe, 

hereinafter referred to as “Tier 3” waters (40 CFR 131.12(a)(3)). Today’s proposal 

focuses on different aspects of state and tribal implementation methods to ensure 

effective and transparent implementation of Tier 2 high quality water antidegradation 

protection provisions. 

In this regard, the EPA indicated in its 1998 ANPRM that “on a national scale, 

antidegradation is not being used as effectively as it could be,” a concern that continues 

today and is echoed by stakeholders who have identified antidegradation as an underused

component of water quality protection. Although the federal antidegradation regulation is 

intended to help states and tribes protect and maintain high quality waters, the number of 

waters that are identified as impaired continues to grow. If antidegradation is not 

implemented effectively, the benefits of high quality waters may be jeopardized after 

limited or no consideration of the long-term consequences of lowering water quality or an 

evaluation of the alternatives that might be available to reduce the need to accommodate 

increased pollution. 
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While the EPA has issued guidance in the past to help facilitate state and tribal

implementation of the regulatory antidegradation provisions, the EPA received 

substantial feedback from stakeholders that existing CWA antidegradation regulatory 

provisions and related guidance have not been fully successful in ensuring consistent and 

effective implementation of Tier 2 high quality water protections. Moreover, states have 

recognized the limits of national guidance in the area of CWA implementation. Most 

recently on March 30, 2011, the Environmental Council of the States published a 

resolution entitled “Objection to U.S. Environmental Protection Agency’s Imposition of 

Interim Guidance, Interim Rules, Draft Policy and Reinterpretation Policy” in which it 

states that the “EPA should minimize the use of interim guidance, interim rules, draft 

policy and reinterpretation policy and eliminate the practice of directing its regional or 

national program managers to require compliance by states with the same in the 

implementation of delegated programs.” For these and the other reasons discussed 

above, the EPA is, therefore, revising its regulation to update the requirements for 

transparent and effective state and tribal antidegradation implementation.

1. The EPA Proposal—Part 1: Identification of High Quality Waters.

The EPA is proposing to add paragraph (b)(1) to §131.12 to provide that high quality 

waters may be identified on a parameter-by-parameter basis or on a water body-by-water 

body basis, as long as the state or tribal implementation methods ensure that waters are 

not excluded from Tier 2 protection solely because not all of the uses specified in CWA 

section 101(a)(2) are attained. The EPA’s established view is that either method of 

identifying high quality waters is acceptable, but is proposing today to codify that 

flexibility for states and tribes into regulation. By “the uses specified in CWA section 

101(a)(2)” the EPA means the uses and functions encompassed within the CWA section 

101(a)(2), such as aquatic life support, wildlife support, consumption of aquatic life, and 

recreation. 

The nationally applicable water quality standards regulation at §131.12 describes high 

quality waters as those where the quality of the waters exceed levels necessary to support 

the propagation of fish, shellfish, and wildlife and recreation in and on the water (i.e., the 

CWA goals articulated in section 101(a)(2)). States typically use one of two approaches 

to identify high quality waters. While the EPA specified in the “Water Quality Guidance 

for the Great Lakes System” that high quality waters subject to 40 CFR Part 132 must be 

identified using a parameter-by-parameter approach, the WQS regulation applicable to all 

states and tribes (at 40 CFR Part 131) does not currently specify how a state or tribe must 

identify its high quality waters for purposes of the antidegradation requirements. States 

and tribes using a parameter-by-parameter approach identify which waters are of high 

quality for purposes of a Tier 2 review at the time the activity that would lower water 

quality is proposed. Under this approach, when an activity is proposed that would 

potentially lower water quality in any high quality water, the state or tribe would 

determine for which parameters the water quality is better than applicable criteria 

developed to support the CWA 101(a)(2) uses. Each parameter for which water quality 

would be lowered by the permitted activity is considered independently and, once a 

parameter is determined to exist at a level that is better than applicable criteria, the state

or tribe would conduct a Tier 2 review for that parameter. In contrast, states and tribes 
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using a water body-by-water body approach typically identify high quality waters in 

advance on a list by weighing a variety of factors to classify a water body’s overall 

quality. If an activity is proposed that would potentially lower water quality, the state 

would first determine if that water body is on its Tier 2 list, and thus eligible for Tier 2 

review. 

The EPA has found, however, that it is currently possible for high quality waters to be 

identified on a water body-by-water body basis in a manner that the EPA believes may be 

contrary to the intent of the antidegradation provisions. In some cases, states or tribes 

have implemented antidegradation such that, where a water body is listed on the CWA 

section 303(d) list based on one or more parameters affecting only one of the CWA 

101(a)(2) uses, the state or tribe automatically considers the water no longer high quality. 

As a result, the state or tribe would no longer conduct Tier 2 reviews before allowing a 

lowering of water quality for any parameter. However, individual Section 303(d) listings 

can be a potentially poor indicator of the overall quality of a surface water because, 

although one or more of the uses specified in 101(a)(2) is listed as impaired, one or more 

other uses specified in 101(a)(2) might still be attained and the water quality may be 

higher than necessary to support such use(s). Such a means of identifying high quality 

waters would categorically deny Tier 2 protection to a water body that is still of high 

quality with respect to other uses specified in CWA 101(a)(2).

If a water body can be excluded from Tier 2 protection solely because one of the 

uses specified in 101(a)(2) is not being attained, without a holistic evaluation of the water 

body, it is possible that a large number of state and tribal waters would never be subject 

to Tier 2 review for any parameter. Yet those waters may in fact be high quality waters

relative to some other use. Thus, such water bodies could be degraded further without a 

public participation process. For example, mercury is widely prevalent in U.S. waters and 

is known to bioaccumulate in fish tissue, thus affecting the water body’s ability to

support protection and propagation of aquatic life. A recent statistically based EPA 

sampling survey found predator species fish tissue in 49 percent of the sampled 

population of lakes in the conterminous United States with surface areas greater than or 

equal to 1 hectare exceeded the EPA’s recommended 0.3 ppm tissue-based mercury 

criterion (“National Study of Chemical Residues in Lake Fish Tissue,” EPA 823–R–09–

006). If all states and tribes used an approach for identifying high quality water whereby 

any impairment rendered the water body ineligible for Tier 2 protection, almost half of 

the lakes would automatically be excluded from Tier 2 high quality water protection. The 

EPA’s view is that this approach would not be consistent with the objectives of the CWA

and the intent of the antidegradation regulation.

The EPA recognizes that there may be multiple ways for a state or tribe to develop a 

water body-based approach for identifying high quality waters consistent with the goals 

of the CWA and the antidegradation regulation. The EPA understands that in some 

cases, §131.12(a)(2) has been interpreted to mean that if any one of the uses reflecting 

CWA 101(a)(2) goals is not supported, that the water body as a whole cannot be 

considered high quality. The regulatory language, however, is derived from the language 

in CWA 101(a)(2) that specifies it is a national goal to achieve water quality that 

provides for “the protection and propagation of fish, shellfish, and wildlife and provides 
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for recreation in and on the water.” The intent of this CWA statement is to strive towards 

all of the uses specified in the provision and not to stop striving towards all of the uses 

simply because one of them is not being achieved. The EPA’s proposal and 

interpretation of 40 CFR 131.12(a)(2) is consistent with the intent of the CWA.

Rather than excluding a water body from Tier 2 protection solely because not all of 

the uses specified in CWA section 101(a)(2) are attained, the EPA would expect the state 

or tribe to consider a combination of chemical, biological, and physical characteristics in 

identifying high quality waters. In other words, the EPA would expect the state or tribe 

to use all the relevant available data to conduct an overall holistic assessment of these 

characteristics in order to determine whether a water body would receive Tier 2 

protection. Some of the factors a state or tribe may consider include, but are not limited 

to, existing aquatic life uses including aquatic assemblages, habitat, hydrology, 

geomorphic processes, and landscape condition; existing recreational uses and 

recreational significance; and the overall value and significance of the water body from 

an ecological and public-use perspective. Numerous tools, such as biological, habitat, 

hydrologic, geomorphic, and landscape assessments or the environmental impact 

statement rating system, could be useful to states and tribes in making and supporting 

these judgments. 

For purposes of better understanding today’s proposal, consider the following 

examples. 

Water Body A has aquatic life and recreational designated uses and is listed 

as impaired for methylmercury and bacteria, pursuant to CWA section 

303(d). Under today’s proposed rule, a state or tribe using a water body-bywater body approach could exclude Water Body A from its Tier 2 list because

the state or tribe could show that high levels of methylmercury prevent the 

attainment of protection and propagation of fish, shellfish and wildlife, and

that high levels of bacteria prevent attainment of recreation in and on the 

water. 

Water Body B has aquatic life and recreational designated uses and is listed 

pursuant to CWA section 303(d) as impaired for methylmercury, but not for 

bacteria or any other pollutant necessary to protect recreation. Under a water 

body-by-water body approach, the proposed rule would prohibit the state or 

tribe from excluding Water Body B from its Tier 2 list solely because the 

water body cannot attain protection and propagation of aquatic life due to 

methylmercury. Water Body B is still attaining recreation in and on the water

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

The EPA invites comments on the proposed addition of paragraph (b)(1) to §131.12.

Additionally, the EPA is considering whether to specify how a state or tribe determines 

for which parameters Tier 2 review must be conducted depending on the approach used 

to identify high quality waters. The EPA requests comment on whether, once a high 

quality water is identified, the Tier 2 review process for that water body should differ 

depending on the approach used to identify it as high quality. As the EPA has explained 

before in the ANPRM and in the “Water Quality Guidance for the Great Lakes System” 
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(40CFR part 132), for high quality waters identified through the parameter-by-parameter 

approach, states and tribes conduct Tier 2 reviews for all parameters for which the water 

quality has been identified as better than the applicable criteria developed to support the 

CWA 101(a)(2) uses. Each parameter for which water quality would be lowered by the 

permitted activity is considered independently and, once a parameter is determined to 

exist at a level that is better than applicable criteria developed to support the CWA 

101(a)(2) uses, the state or tribe would conduct a Tier 2 review for that parameter. 

The EPA has made a variety of different statements about how Tier 2 reviews are

conducted once the water body is identified as Tier 2 using a water body-by-water body 

approach.

1516 Thus, for the water body-by- water body approach the EPA could specify 

that Tier 2 reviews must be conducted for all parameters for which the water quality has 

been identified as better than the applicable criteria developed to support the CWA 

101(a)(2) uses. 

Alternatively, the EPA could specify that for waters identified as high quality on a 

water body-by-water body basis, Tier 2 reviews are only required for parameters 

associated with the 101(a)(2) uses currently being supported. For example, in Water 

Body B above, a Tier 2 review would only be required for each parameter that is better 

than the applicable criteria to protect recreation. And, a Tier 2 review would not be 

required for any parameter only associated with the aquatic life use (i.e., and not also 

associated with the recreation use). 

The EPA could also specify that states and tribes have discretion on how to conduct 

the Tier 2 reviews. The EPA also invites comments on any other options it should 

consider or on the interpretations expressed in this section. 

2. The EPA Proposal—Part 2: Alternatives Analysis

The EPA is proposing to add paragraph (b)(2) to 40 CFR 131.12 to ensure that states 

and tribes will only make a finding that lowering water quality is necessary, as required 

in §131.12(a)(2), after conducting an alternatives analysis that evaluates a range of nondegrading and minimally degrading practicable alternatives that have the potential to

prevent or minimize the degradation associated with the proposed activity. Today’s 

proposal also provides that if a state or tribe can identify any practicable alternatives, the 

state or tribe must choose one of those alternatives to implement when authorizing a 

lowering of high water quality. 

Section 131.12(a)(2) also provides that high quality water shall be maintained and 

protected unless the state or tribe finds (after satisfaction of public participation and 

intergovernmental coordination requirements) that “allowing lower water quality is 

necessary to accommodate important economic or social development in the area in 

which the waters are located” (40 CFR 131.12(a)(2)). As discussed previously, this 

 

15See “EPA Region VIII Guidance: Antidegradation Implementation; Requirements, Options, and EPA 

Recommendations Pertaining to State/Tribal Antidegradation Programs,” August, 1993, page 14, 

http://water.epa.gov/scitech/swguidance/standards/adeg/upload/Region8_ch2_pg5-20.pdf

16 See “Proposed Water Quality Standards for Kentucky,” November 2002, page 68977, 

http://www.epa.gov/fedrgstr/EPA-WATER/2002/November/Day-14/w28922.htm
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process is called a Tier 2 review. Tier 2 review calls for the state or tribe to investigate 

two questions: (1) whether allowing lower water quality is necessary to accomplish the 

proposed activity, typically by examining alternative ways of accomplishing the activity

through an alternatives analysis; and (2) whether the proposed activity that will result in 

lower water quality will accommodate important economic or social development, 

through a socio-economic analysis. States and tribes may determine the order in which to 

complete the two aspects of the finding. In addition, states have discretion to decide there 

is no need to answer the second question if the answer to the first question is “no.” For 

example, a state or tribe may choose to first ask whether lowering of water quality is 

necessary to accomplish the proposed activity, and if the answer is “no,” decide at that 

point not to investigate whether the proposed activity will accommodate important 

economic or social development. While this finding is a state or tribal responsibility, the 

EPA recognizes that states and tribes may establish processes requiring the entity 

responsible for conducting the proposed activity to provide information or conduct the 

necessary evaluations.

Although the existing regulation implies that the state or tribe must have a means of 

evaluating whether a lowering of water quality is necessary to accomplish the proposed 

activity, currently there is no explicit requirement to conduct an alternatives analysis. 

Even if a state or tribe conducts an alternatives analysis, the regulation does not specify 

that, where there is a practicable alternative, the state or tribe must select an alternative 

for implementation. For these purposes, the term “practicable” means that the alternatives 

considered must be available for the proposed activity, technologically possible, able to 

be done or put into practice successfully at the site in question, and economically viable. 

This lack of specificity can result in situations where a state or tribe does not evaluate 

less-degrading or non-degrading alternatives to the proposed activity, and thus lacks a 

reasoned basis for determining if the proposed lowering of water quality is necessary to 

accomplish the proposed activity, or not. The EPA’s view is that this lack of specificity 

can lead to state or tribal decisions to lower water quality without appropriately making a 

finding that a lowering is necessary, contrary to section 131.12(a)(2). 

This issue was considered carefully as part of the development of updated water 

quality requirements for the Great Lakes states in 1995. The regulation at 40 CFR Part 

132, Appendix E, addresses it by requiring that any entity seeking to degrade high water

quality must submit an antidegradation demonstration for consideration by the state. This 

demonstration includes an analysis identifying any cost-effective pollution prevention

alternatives and techniques, as well as an analysis identifying alternative or enhanced 

treatment techniques (and their relative costs) that are available to the entity and that

would eliminate or significantly reduce the extent to which the increased loading results 

in a lowering of water quality. States and tribes should tailor the level of detail and 

documentation in antidegradation reviews to the specific circumstances encountered. The 

state or tribe then uses that information to determine whether or not the lowering of water 

quality is necessary.

Under the approach proposed today, the state or tribe would conduct its alternatives 

analysis by considering a range of non-degrading and minimally degrading practicable

alternatives to the proposed activity. Similar to the alternatives analysis provided for in 
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40 CFR Part 132, this evaluation would include a consideration of any non-degrading or 

minimally degrading cost-effective pollution prevention alternatives and enhanced 

treatment techniques, but would not be limited to those. For example, alternatives could 

include no discharge, pollution prevention measures, process changes, reduction in the 

scale of the project, advanced or different treatment technologies, water recycling and 

reuse, land application, seasonal or controlled discharge options avoiding critical water 

quality periods, and alternative discharge locations, if such measures were practicable. 

Once the state or tribe has identified a range of practicable alternatives, the state or 

tribe would evaluate the alternatives in terms of the extent of degradation that would 

result. By initially considering practicable alternatives that represent a range from nondegrading to minimally degrading as opposed to simply identifying the single least 

degrading alternative, the state or tribe then has a basis to make the required finding, 

considering the implications and technological and economic practicability of the 

alternatives more holistically, and considering any impacts beyond the direct effects on 

water quality, such as cross-media impacts (e.g., impacts on land due to land application 

of pollutants found in water). This will allow the state or tribe to determine whether the 

lowering of water quality is necessary to accommodate important economic or social 

development per Part 131.12(a)(2). As reflected in the Great Lakes System regulation at 

Part 132, the EPA believes states and tribes should tailor the level of detail and 

documentation of alternatives analyses in antidegradation reviews to the significance and 

magnitude of the particular circumstances encountered. 

The EPA invites comment on the proposed addition of paragraph (b)(2) to §131.12. 

The EPA also invites comment on any other options it should consider or on the 

interpretations expressed in this section. 

3. The EPA Proposal—Part 3: Developing and Making Available to the 

PublicAntidegradation Implementation Methods. 

The EPA is proposing to add paragraph (b) to 40 CFR 131.12 to specify that states 

and tribes must develop and make available to the public antidegradation implementation 

methods to improve program implementation, ensure consistency with the CWA, and 

provide transparency as to applicable state and tribal antidegradation review 

requirements. The EPA is also making changes to language in §131.5(a) describing the 

EPA’s authority to review and approve or disapprove state-adopted or tribal-adopted 

antidegradation policies. The language in §131.5(a) further specifies that if a state or 

tribe has chosen to formally adopt implementation methods as water quality standards, 

the EPA would review whether those implementation methods are consistent with 

131.12. In addition to the proposed requirements included in today’s proposal, the EPA 

is considering and requesting comment on whether the EPA should include a 

requirement that antidegradation implementation methods be adopted as WQS and thus 

subject to the EPA’s review and approval or disapproval. Alternatively, the EPA is 

considering and requesting comment on whether the EPA should specify that states and 

tribes may, but are not required to, adopt antidegradation implementation methods as 

WQS. 
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Stakeholders have raised concerns that some states and tribes have not developed or 

made publically available antidegradation implementation methods, despite the fact that 

the regulation requiring this was established in 1983. Specifically, they are concerned that 

the absence of such methods reduces transparency in the implementation of states’ and 

tribes’ policies, and potentially limits the ability to ensure protection of existing uses,

high quality waters, and ONRWs to the full extent required by the regulation. The CWA 

at section 101(e) specifically states that “public participation in the development, 

revision, and enforcement of any regulations, standard, effluent limitation, plan, or 

program established ...under this Act shall be provided for, encouraged, and assisted....” 

The EPA encourages states and tribes to provide a robust and transparent process for 

developing and making available to the public their antidegradation implementation 

methods and for implementing those methods in specific cases. 

Section 501(a) of the CWA (33 U.S.C. 1361(a)) authorizes the EPA Administrator 

to “prescribe such regulations as are necessary to carry out [her] functions under this 

Act.” The CWA, under section 303(c), also specifies that the EPA Administrator must 

review and approve new or revised WQS after determining they are consistent with 

applicable requirements under the CWA. The EPA believes that antidegradation 

implementation methods are an important component of implementing antidegradation 

policies. Thus, the EPA is considering and requesting comment on whether the EPA 

should include a requirement that implementation methods be formally adopted as WQS 

and thus subject to the EPA’s review and approval or disapproval. Formal adoption of 

implementation methods as WQS, along with EPA review under section 303(c) of the 

Act, would help ensure the consistent and effective implementation of the state or tribe’s

antidegradation provisions so that waters will be maintained and protected in accordance 

with the objectives of the Act.17 At the same time, the EPA acknowledges the primary 

role of states and tribes in establishing and implementing water quality standards. The 

EPA is thus alternatively considering and requesting comment on whether to specify in 

rule that states and tribes may, but are not required to, adopt antidegradation 

implementation methods as WQS subject to EPA approval. In this case, states and tribes 

must develop antidegradation implementation methods, and must make them available to 

the public, but they would not be subject to EPA review and approval or disapproval 

unless the state or tribe chose to formally adopt them as WQS.

Additionally, antidegradation is an essential part of WQS and state and tribal 

approaches to implementing antidegradation requirements may have direct implications 

for NPDES permits, as well as other federal permits and licenses for activities that affect 

water quality. The EPA believes that this may be an additional reason why the 

regulations should require states and tribes to formally adopt, after providing an 

opportunity for public involvement, and obtain EPA approval for antidegradation 

implementation methods. Lastly, state and tribal antidegradation programs that have 

antidegradation implementation methods adopted into regulations are more transparent to 

stakeholders and the public, as well as provide greater clarity to regulated industry.

 

17 As of 2013, the EPA is aware of 25 states that have adopted antidegradation implementation methods 

entirely into rule. 
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The “Water Quality Guidance for the Great Lakes System” (40 CFR Part 132) 

provides that an acceptable antidegradation policy and implementation methods are 

required elements of a state’s or tribe’s WQS program for waters of the Great Lakes 

system. That regulation requires that Great Lakes states and tribes adopt provisions into 

their policy and implementation methods that are consistent with a list of specifications, 

including details on how high quality waters are to be identified and on the components 

of antidegradation Tier 2 reviews. 

Consistent with this “Water Quality Guidance for the Great Lakes System” 

requirement and for the reasons explained, the EPA is considering and seeking comments

on a revision to the antidegradation regulation at 40 CFR 131.12 that would require states 

and tribes to adopt antidegradation implementation methods in order to improve program 

implementation, ensure consistency with CWA, and provide transparency as to applicable 

state or tribal antidegradation review requirements. If the EPA were to finalize such a 

requirement, the EPA would expect that a state or tribe’s adopted implementation 

methods would describe how the state or tribe intended to implement each aspect of its 

policy, consistent with §131.12(a), as well as how antidegradation decisions would be 

documented. This would provide sufficient information so that the public and the EPA

would understand the extent to which activities affecting water quality are being 

authorized consistent with the state’s or tribe’s antidegradation policy and other CWA 

requirements. 

The EPA invites comments on the proposed addition of paragraph (b) to §131.12. 

Currently there is confusion whether the existing regulations require states and tribes to 

adopt antidegradation implementation methods as WQS. The EPA requests comment on 

whether the EPA should require, as part of Section 131.12(b), that implementation 

methods be adopted as WQS and thus subject to the EPA’s review and approval or 

disapproval. If the EPA makes adoption of implementation methods a requirement, the 

EPA is also considering corresponding revisions to section 131.6(d). Specifically, the 

EPA requests comment on whether a corresponding revision should be made to section 

131.6(d) to clarify that implementation methods are one of the minimum requirements for 

a water quality standards submission. Alternatively, the EPA is requesting comment on 

whether the EPA should explicitly specify in regulation that states and tribes are not 

required to adopt antidegradation implementation method as WQS. Finally, the EPA

invites comments on any other options it should consider or on the interpretations 

expressed in this section. 

4. Minimum Elements of an Antidegradation Implementation Method.

The EPA’s basis for taking approval or disapproval action on a state’s or a tribe’s 

antidegradation policy is whether the policy is consistent with the CWA and the water 

quality standards regulations at 40 CFR §131.12. While the current regulations do not 

require states or tribes to adopt antidegradation implementation methods as water quality 

standards, if a state or tribe chooses to do so, the EPA would review a state’s or tribe’s 

implementation methods on the basis of ensuring that the methods do not undermine the 

state’s or tribe’s own antidegradation policy. Today’s proposed revised antidegradation 

regulation continues to provide for a wide range of state and tribal approaches to 

antidegradation. States and tribes have considerable discretion in how they address each 
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of the elements of antidegradation implementation specified in the regulation. To 

facilitate development of implementation methods, the EPA is providing in this preamble 

a list of the areas states’ and tribes’ implementation methods would need to address, at a 

minimum, to be consistent with the WQS regulation. This list is based on requirements 

currently found in the federal antidegradation regulation, as well as proposed 

requirements found in today’s action. Again, how states and tribes address each of these 

areas in the methods is within their discretion, as long as it does not undermine their 

antidegradation policy or is otherwise inconsistent with the Act or EPA’s regulations.

1) Scope and applicability: the state or tribe should describe the scope and 

applicability of their antidegradation policy.

2) Existing uses protection: the state or tribe will ensure the maintenance and 

protection of all existing uses and the water quality necessary to protect the 

existing uses.

3) High quality water protection 

a) Identification of high quality water: the state or tribe will identify high

quality waters on a parameter-by-parameter basis or a water body-bywater body basis, as long as the state’s or tribe’s implementation methods 

ensure that waters are not excluded from Tier 2 protection solely because 

not all of the uses specified in CWA section 101(a)(2) are attained.

b) Alternatives analysis and social/economic analysis: the state or tribe will 

determine whether the lowering of water quality that would result from a 

proposed activity is necessary to accommodate important economic or 

social development in the area in which the waters are located through an 

alternatives analysis and a social and/or economic analysis.

c) Public participation and intergovernmental coordination: the state or tribe 

will ensure full satisfaction of the public participation and 

intergovernmental coordination provisions of the state’s or tribe’s 

continuing planning process in any finding that will allow lower water 

quality.

d) Requirements for point and nonpoint sources: the state or tribe will ensure 

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 

when allowing a lowering of water quality.

4) ONRW protection: the state or tribe will ensure the maintenance and 

protection of water quality for waters identified as ONRWs.

5) Thermal Discharges: The state or tribe will ensure consistency with Section 

316 of the Act in cases that involve potential water quality impairment 

associated with thermal discharges.
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5. How Does This Proposal Affect States or Authorized Tribes for Which the EPA 

has Promulgated Antidegradation Implementation Methods?

The revised WQS regulation will apply to all states, authorized tribes, and territories, 

regardless of whether or not the EPA has previously promulgated an antidegradation 

policy or implementation methods for the state or tribe. Therefore, any previously 

promulgated antidegradation policies or implementation methods may require revision to 

meet the new requirements of Section 131.12. 

F. WQS Variances.

1. Background. 

The EPA has encouraged states and tribes to utilize WQS variances18 (hereafter 

referred to as “variances”), where appropriate, as an important WQS tool that provides 

states and tribes time to make progress towards attaining a designated use and criteria. 

The EPA has offered input and support for variances through Office of General Counsel

legal decisions19, guidance, memoranda, and approval actions for many years. These 

documents specifically explain the EPA’s interpretation that variances may be granted if 

the state or authorized tribe demonstrates that the variance meets the same requirements 

as a permanent20 designated use change, even though the WQS regulation lacks explicit 

provisions on the issue. As a result, the EPA has heard from states, tribes, and 

stakeholders that there is confusion, inconsistency, and mixed interpretations about how, 

when, and where variances may be used appropriately (e.g., with regard to nutrients and 

implementation of numeric nutrient criteria). In particular, the EPA has found that this 

WQS tool is underutilized. For example, since tracking WQS variance submittals in 

2004, four EPA Regions have never received a WQS variance submittal. However, the 

EPA has found that where states and tribes and their stakeholders have more specificity 

in regulation regarding variances, such as those states and tribes covered by the “Water 

Quality Guidance for the Great Lakes System” (i.e., Great Lakes Initiative) rulemaking at 

40 CFR Part 132, they are successfully adopting and submitting WQS variances. This 

proposed rule is intended to provide this specificity nationally.

The CWA specifies a national goal at Section 101(a) to restore and maintain the 

chemical, physical and biological integrity of the Nation’s waters and an interim goal in 

Section 101(a)(2) that, “wherever attainable,” water quality provide for the protection and 

propagation of fish, shellfish, and wildlife and provides for recreation in and on the 

water. In implementing the CWA, the regulation at 40 CFR 131.10 establishes provisions 

relating to the management of designated uses. In 1977, an Office of General Counsel 

 

18 The EPA distinguishes WQS variances, as described in today’s proposed rulemaking, from variances as 

described in the EPA’s permitting regulation at §122.2 and §125.3.

19 The EPA’s memoranda discussing variances are available on the EPA’s website at 

http://water.epa.gov/scitech/swguidance/waterquality/standards/handbook/chapter05.cfm#section3. 

20 “Permanent” is used here and throughout this section to contrast between the time-limited nature of 

variances and designated use changes in accordance with 40 CFR 131.10 that require a revision to a State’s 

water quality standards to reverse. 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 three 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 State shall revise its standards accordingly.”
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legal decision considered the practice of temporarily downgrading the WQS as it applies 

to a specific discharger rather than permanently downgrading an entire water body or 

waterbody segment(s) and determined that such a practice is acceptable under the EPA’s 

existing regulations as long as the variance is adopted consistent with the substantive and 

procedural requirements for permanently downgrading a designated use. In other words, 

a state or tribe may change the standard in a more targeted way rather than remove the 

standard all together. The EPA further explained that it would be appropriate to grant a 

variance based on any of the six factors for removing a designated use as listed in section 

§131.10(g)21. 

The state practice described in the Office of General Counsel legal decision became 

known as adopting a “variance” to WQS. Specifically, a variance is a time-limited 

designated use and criterion that is targeted to a specific pollutant(s), source(s), and/or

water body or waterbody segment(s) that reflects the highest attainable condition during 

the specified time period. Variances are different from changes to the designated use and 

associated criteria in that they are intended as a mechanism to provide time for states, 

authorized tribes and stakeholders to implement adaptive management approaches that 

will improve water quality where the designated use and criterion currently in place are 

not being met, but still retain the designated use as a long term goal. Variances are 

limited in scope and are an environmentally preferable tool over a designated use change

because variances retain designated use protection for all pollutants as they apply to all 

sources with the exception of those specified in the variance. Even the discharger who is 

given a variance for one particular constituent is required to meet the applicable criteria 

for all other constituents. The variance is given for a limited time period and the 

discharger must either meet the WQS upon the expiration of this time period or the state 

or tribe must adopt a new variance or re-justify the current variance subject to EPA 

review and approval. Thus, when properly applied, a variance can lead to improved water 

quality over time, and in some cases, full attainment of designated uses due to advances 

in treatment technologies, control practices, or other changes in circumstances, thereby 

furthering the objectives of the CWA. 

Presently, the nationally applicable WQS regulation only mentions variances in 40 

CFR 131.13. This provision indicates that variance policies are general policies affecting 

the application and implementation of WQS, and that states and tribes may include 

variances policies in their state and tribal standards, at their discretion. The EPA provided 

variance procedure requirements when it promulgated WQS for Kansas (§131.34(c)), 

Puerto Rico (§131.40(c)), and the Great Lakes System (40 CFR Part 132, Appendix F, 

Procedure 2). However, the nationally applicable regulation does not explicitly address 

questions such as when a variance can be granted, how a variance must be justified, what 

is required during the term of the variance, or for how long a variance can be granted. 

The EPA’s established position has been that variances, as time-limited and narrow use 

revisions, are appropriate WQS tools that must go through public review and require the 

 

21 Variances in Water Quality Standards, March 15, 1985, Memo from Edwin L. Johnson, Director of the 

Office of Water Regulations and Standards, to the Regional Water Division Directors and the Advanced 

Notice of Proposed Rulemaking at 63 FR 36759.
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EPA’s review and approval.

22 This position is supported by the EPA’s practice regarding 

variances.23 Today, we recognize a more direct link to the CWA Section 101(a) goal of 

“restore and maintain” for variances. WQS variances are consistent with the “restore” 

aspect of the goal since variances are intended to allow incremental environmental 

progress in achieving designated uses. As described in detail in section III.F.2, the EPA is 

proposing a set of variance provisions that are in many ways parallel to the regulations in 

131.10, but are tailored to better fit the circumstances where variances will allow for 

environmental progress toward achieving the goals of the CWA. The EPA notes that its 

understanding and past practice allows for variances whether or not those uses are 

specified in Section 101(a)(2), however, the demonstration may differ.

States and tribes have expressed that variances are useful in a number of 

circumstances where the state or tribe has demonstrated that the designated use and 

criterion are not attainable today (or for a limited period of time), but may be attainable in 

the longer term. Examples include when:

Attaining the designated use and criterion is not feasible under the current 

conditions (e.g., attainment of numeric nutrient criteria would result in 

substantial and widespread social and economic impact) but could be feasible 

should circumstances change (e.g., development of less expensive pollution 

control technology or a change in local economic conditions); or

The state or tribe does not know whether the designated use and criterion can be 

attained, but feasible progress toward attaining the designated use and criterion

can still be made by implementing known controls and tracking environmental 

improvements (e.g., complex use attainability challenges involving legacy 

pollutants). 

There are a variety of tools available to states, tribes and dischargers that can provide 

time to meet regulatory requirements; however, the most common regulatory tools 

considered are variances and permit compliance schedules. Which tool is appropriate 

depends upon the circumstances. Variances can be appropriate to address situations 

where it is known that the designated use and criterion are unattainable today (or for a 

limited period of time) but feasible progress could be made toward attaining the 

designated use and criterion. A permit compliance schedule, on the other hand, may be 

appropriate when the use is attainable, but the permittee needs additional time to modify 

or upgrade treatment facilities in order to meet its WQBEL such that a schedule and 

resulting milestones will lead to compliance “as soon as possible” with the WQBEL

based on the currently applicable WQS. (See CWA section 507(17) for a definition of 

“Schedules of compliance” and 40 CFR 122.47). 

 

22 The EPA addressed variances in its Kansas and Puerto Rico promulgations and part 132 Great Lakes 

Water Quality Guidance regulations (Published March 23, 1995, http://www.ecfr.gov/cgi-bin/textidx?c=ecfr&SID=105020ee867fe139a8d0965b23bf7557&rgn=div5&view=text&node=40:23.0.1.1.19&idn

o=40

). 

23 The EPA’s WQS Handbook, 1994: 

http://water.epa.gov/scitech/swguidance/standards/handbook/chapter05.cfm#section3
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The EPA is proposing and soliciting comment on revisions to the WQS regulation 

that will provide more specificity and clearer requirements on the development and use of 

variances. Such revisions will establish requirements to help improve water quality by 

allowing states and tribes time to work with stakeholders to address any challenges and 

uncertainties associated with attaining the designated use and the associated criterion. 

These revisions will also provide assurance that further feasible progress toward the 

designated use and criterion will be made during the variance period. 

The EPA’s proposed regulatory provisions for variances at §131.14 address the 

following key topic areas: (1) applicability, (2) submission requirements, (3) 

implementing variances, (4) how to renew a variance, and (5) conforming changes to 

§131.34 and §131.40. A discussion of today’s proposal and the rationale for each 

proposed regulatory provision follows.

2. Rationale and the EPA Proposal.

a. Part 1—Applicability of Variances.

i. The scope of a variance.

To provide clarity, promote consistency, and avoid conflicting interpretations of 

WQS variances, the EPA is proposing a new regulatory definition for WQS variance at 

§131.14. A water quality standards variance (WQS variance) is a time-limited use and 

criterion for a specified pollutant(s), permittee(s), and/or water body or waterbody 

segment(s) that reflect the highest attainable condition during the specified time period. 

Variances are WQS subject to EPA review and approval or disapproval and must be 

consistent with §131.14. As WQS, variances are subject to §131.20(a) and thus must be 

reviewed on a triennial basis. States and tribes continue to have broad discretion on the

structure of their triennial reviews and can decide whether and how to modify or adopt 

WQS as a result of a triennial review. The EPA is also proposing to specify at 

§131.14(a)(1) that all other applicable water quality standards not specifically addressed 

by the variance remain applicable.

Typically, states find variances that apply to a specific pollutant(s) and discharger(s)

to be most useful. If a state believes that the designated use and criterion is unattainable 

for a period of time because the discharger cannot meet its WQBEL, the state may grant a 

discharger-specific variance so long as the variance is consistent with the CWA and 

implementing regulation. 

Similarly, if a state or tribe believes that the designated use and criterion is 

unattainable as it applies to multiple permittees because they are all experiencing 

challenges in meeting their WQBELs for the same pollutant for the same reason, 

regardless of whether or not they are located on the same water body, a state or tribe may 

streamline its variance process by granting one variance that applies to all these 

dischargers (i.e., a multiple discharger variance) so long as the variance is consistent with 

the CWA and implementing regulations. The EPA recognized the utility of a multiple 

discharger variance and its distinction from an individual discharger variance in the 

“Water Quality Guidance for the Great Lakes System: Supplementary Information 

Document” (SID; EPA–820–B–95–001; March 1995). The EPA provided further 
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clarification regarding multiple discharger variances in the “Water Quality Standards for 

the State of Florida’s Lakes and Flowing Waters; Final Rule” (75 FR 75790). More 

recently in March 2013, the EPA provided a set of frequently asked questions to assist 

states and tribes in developing credible rationales for multiple discharger variances. 24

Where a state or tribe can demonstrate that the designated use and criterion currently 

in place for a specific pollutant is not attainable immediately (or for a limited period of 

time) for an entire water body, the state or tribe may adopt a waterbody variance as an 

alternative to a designated use change for the water body so long as the variance is 

consistent with the CWA and implementing regulation. In such an instance, the variance 

applies to the water body itself, rather than to any specific source or sources. A

waterbody variance provides time for the state or tribe to work with both point and 

nonpoint sources to determine and implement adaptive management approaches on a 

waterbody/watershed scale to achieve pollutant reductions and strive toward attaining the 

water body’s designated use and associated criteria.

States and tribes retain discretion as to whether, when, and where to adopt variances. 

However, consistent with the EPA’s current position, should a state or tribe choose to 

grant a variance, it is subject to the EPA’s review and approval or disapproval—

regardless of the scope of the variance.

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section. The EPA also invites 

comment on the applicability of variances to individual dischargers, multiple dischargers 

and to entire water bodies.

ii. An EPA approved variance is only applicable for CWA section 402 

permitting purposes and in issuing certifications under section 401 of the 

Act.

The proposed WQS regulation at 40 CFR 131.14(a)(2) would specify that where a 

state or authorized tribe adopts a variance, the state or tribal regulations must continue to

reflect the underlying designated use and criterion unless the state or tribe adopts and the 

EPA approves a revision to the designated use and criterion as consistent with §131.10 or 

§131.11. The interim requirements specified in the variance apply only for CWA section 

402 permitting purposes and in issuing certifications under section 401 of the Act for the 

pollutant(s), permittee(s) and /or water body or waterbody segment(s) covered by the 

variance.

To date, the EPA’s available guidance has characterized variances as temporary 

changes to the designated use; however, such a characterization might imply that the 

variance replaces the designated use while the variance is in effect. This has led to 

 

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

Apply to Multiple Dischargers, EPA-820-F-13-012, March 2013 

(http://water.epa.gov/scitech/swguidance/standards/upload/Discharger-specific-Variances-on-a-BroaderScale-Developing-Credible-Rationales-for-Variances-that-Apply-to-Multiple-Dischargers-FrequentlyAsked-Questions.pdf)
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conflicting interpretations of how variances affect the implementation of WQS through

CWA programs, such as NPDES permits and the CWA 303(d) requirements. 

The CWA and implementing regulation direct the states to add waters that are not 

attaining any applicable WQS to their 303(d) impaired waters list. Specifically, CWA 

section 303(d)(1)(A) states that “each state shall identify those waters within its 

boundaries for which the effluent limitations required by section 301(b)(1)(A) and 

section 301(b)(1)(B) of this title are not stringent enough to implement any water quality 

standards applicable to such waters”(emphasis added). Stakeholders have expressed 

concern that if the interim requirements do not replace the designated use and criterion, 

there will effectively be two WQS applicable for purposes of implementing the CWA 

section 303(d) program where a variance has been approved. However, the interim 

requirements do not replace the designated use and criteria for the water body as a whole. 

Discharger-specific variances affect the development of WQBELs for the discharger(s) 

specified in the variance; they do not affect the designated use and criterion that apply to 

the rest of the water body. In addition, variances are time-limited and intended as a tool 

to facilitate water quality improvements, not to revise the long term goals for a water

body. Therefore, any implementation of CWA section 303(d) must continue to be based 

on the underlying designated uses and criteria for the water body rather than the interim 

requirements. 

By requiring state and tribal regulations to maintain the underlying designated use 

and criterion where a variance is approved, the proposed regulation will ensure it is clear 

that the interim requirements associated with a variance do not replace the designated use 

and criterion. This will, in turn, facilitate a consistent interpretation regarding how 

variances affect the implementation of WQS through the various CWA programs and 

how variances are to be used to support feasible progress toward attaining the underlying 

designated use and criteria. 

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section.

iii. Relationship to technology-based requirements in CWA sections 301(b) and 

306.

The EPA is proposing to add paragraph (a)(3) to 40 CFR 131.14 to specify that a 

variance shall not be granted 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.

As with designated use changes, variances are not permissible if the WQS can be 

attained by implementing technology-based effluent limits required under section 301(b) 

and 306 of the Act. Section 301(b)(1)(A), (B), and section 306 of the Act provide for 

technology-based requirements through effluent limitations guidelines and new source 

performance standards. These technology-based requirements represent the minimum 

level of control that must be imposed in a permit (40 CFR 125.3). Because variances are 

allowed only where the designated use and criterion are demonstrated to be unattainable 

during the term of the variance, it would not be appropriate to use a variance if the 
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designated use and criterion can be attained by implementing the technology-based 

requirements of the Act. 

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section.

b. Part 2—Submission Requirements.

This section describes the relevant information that a state or authorized tribe must 

submit to the EPA when requesting the EPA’s review and approval of a variance.

i. Components of a Variance.

1. Identifying information – pollutant(s), permittee(s), location.

The EPA is proposing to add paragraph (b)(1)(i) at 40 CFR 131.14 requiring states 

and authorized tribes to identify, in the variance, the pollutant(s), the permittee(s), and/or 

the water body or waterbody segment(s) to which the variance applies. 

Today’s proposed regulatory revision will require all variances to specify for what, 

to whom, and/or where the variance applies, which will help ensure full transparency and 

public participation on the applicability and scope of the variance. This will alleviate any 

inconsistencies in the way states and tribes have articulated where, when and how the 

variance applies. 

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section.

2. Numeric interim requirements that apply during a variance.

The EPA is proposing to add paragraph (b)(1)(ii) at 40 CFR 131.14 to require that a

variance must specify (1) the highest attainable interim use and numeric criterion that 

will apply during the term of the variance or (2) an interim numeric effluent condition 

that reflects the highest attainable condition for a specific permittee(s) during the term of 

the variance. Neither (1) nor (2) shall result in any lowering of the currently attained 

water quality, unless a time-limited lowering of water quality is necessary during the term 

of a variance for restoration activities, consistent with §131.14(b)(2)(ii). 

As variances have been implemented to date, some states and tribes have not 

identified in the variance the interim requirements that shall apply for permitting 

purposes during the term of the variance. Specifying the interim requirements to be met 

during the variance will provide the legal basis for permit writers to develop permit limits 

that derive from and comply with a WQS, as required by the permitting regulations at 40 

CFR 122.44(d)(vii)(A). 

As discussed in Section III.C, the EPA is proposing a requirement that a state or tribe 

adopts the highest attainable use closest to the 101(a)(2) goals when it has demonstrated 

that the use specified in CWA section 101(a)(2) or a subcategory of such a use is not 

attainable based on a UAA. The EPA is proposing that a similar requirement apply to 

variances such that if states or tribes can demonstrate that a use specified in section 

101(a)(2) or subcategory of such as use is not attainable for the variance period, then the 

state or tribe must adopt a variance reflecting the highest attainable condition during the 
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term of the variance. Such a requirement ensures that feasible progress will be made 

towards the designated use and the criterion to protect that use during the period of the 

variance.

Requiring that states and tribes establish interim requirements that apply for purposes 

of CWA section 402 permitting and in issuing certifications under section 401 of the Act,

and that such requirements reflect the highest attainable condition during the variance,

creates a framework for variances to provide states and tribes with time to implement 

adaptive management approaches that drive progress towards meeting the designated use 

and criterion in a transparent and accountable manner – a key environmental benefit of a 

variance. This is consistent with previous EPA statements in the EPA’s WQS Handbook 

and 1998 ANPRM that discuss the EPA’s position regarding the progress to be made 

during the term of the variance towards attaining the designated use and criterion.25

A state’s or tribe’s determination or identification of the highest attainable interim 

use need not be complex. A state or tribe could simply include the phrase “variance 

affected” or “variance modified” to the current use description or the state or tribe could 

describe the interim use by identifying the parameter included in the variance, such as 

“pH-limited” use as a way to provide transparency. States and tribes may find it 

appropriate to adopt such “variance modified” uses as the highest attainable interim use, 

rather than adopting an alternate use from the state or tribe’s current use classification 

system, as they might be more likely to do if they were making a permanent change to a 

designated use. To determine the numeric criterion that protects the highest attainable

interim use, a state or tribe shall determine the condition that is both feasible to attain and 

closest to the protection afforded by the designated use and criteria. A state’s or tribe’s 

determination of the highest attainable condition and numeric interim requirements to 

apply during a waterbody variance should include consideration and evaluation of 

pollutant reductions from all contributing sources. This could include an evaluation of 

the point source controls, pollutant minimization plans and NPS pollutant reductions that 

could be achieved in the water body.

Rather than identifying the highest attainable interim use and interim numeric 

criterion, a state or tribe may choose to specify in its variance that the applicable interim 

water quality standard shall be defined by a numeric effluent condition that reflects the 

highest attainable condition for a specific permittee(s) during the term of the variance. If 

current effluent quality represents the highest attainable condition for a specific 

permittee(s), then this would become the interim requirement during the term of the 

variance. Adopting a numeric effluent condition that reflects the highest attainable 

condition is reasonable because the resulting instream concentration reflects the highest 

attainable interim use and interim criterion and, therefore, the interim numeric effluent 

condition is acting as a surrogate for the interim use and interim criterion. In situations 

 

25 The EPA’s 1994 WQS Handbook stated that “EPA has approved state adopted variances in the past and 

will continue to do so if ...reasonable progress is being made toward meeting the standards.” The EPA’s 

1998 ANPRM indicated that the EPA was considering revising its regulations to include a requirement that 

before a variance may be granted the applicant must include documentation that “...reasonable progress 

will be made toward meeting the underlying or original standard.” The EPA did not propose a revised 

regulation at that time. 
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where a variance addresses a pollutant(s) for which no feasible wastewater treatment 

option can be identified, an interim numeric water quality-based effluent condition 

reflecting the levels currently achievable and a requirement to develop and implement a 

Pollutant Minimization Program (PMP)26 together would constitute the highest attainable 

effluent condition. 

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section.

3. Expiration date.

The EPA is proposing to add paragraph (b)(1)(iii) at 40 CFR 131.14 to require that 

all variances must include an expiration date and that variances must be as short as 

possible but expire no later than 10 years after the date the state or tribe adopts the 

variance, consistent with §131.14(b)(2).

Variances are time-limited; therefore, in order to promote consistency and clarity and 

to ensure that variances are truly time-limited, the EPA is proposing that all variances 

include an explicit expiration date. Such expiration date must be consistent with the 

demonstration that a variance is needed for a specified period of time based on one of the 

factors identified in proposed §131.14(b)(2), must be as short as possible, and cannot 

exceed 10 years. Establishing an expiration date will ensure that the conditions of a 

variance will be thoroughly re-evaluated 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 variance may be 

renewed). 

The EPA believes that up to 10 years is a reasonable duration for a variance, as it 

represents two 5-year NPDES permit terms and provides adequate opportunity to 

implement measures to make feasible progress. A maximum of 10 years is also sufficient 

to reflect changing circumstances, such as the availability of new economic information 

or affordable treatment technology that may impact whether or not a variance is still 

warranted.

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section.

ii. Demonstrating the need for a variance – supporting documentation.

The EPA is proposing to add paragraph (b)(2) at 40 CFR 131.14 to specify that in 

order to document that a variance is needed for uses specified in section 101(a)(2) or subcategories of such uses, the state or tribe must demonstrate that attaining the designated 

use and criterion is not feasible during the term of the variance because of one of the 

 

26 A PMP is a structured process to reduce loadings of a pollutant by identifying, preventing and reducing 

loadings, improving processes and improving wastewater treatment.
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factors listed in §131.10(g) or because actions necessary to facilitate restoration through 

dam removal or other significant wetland or stream reconfiguration activities preclude 

attainment of the designated use and criterion while the actions are being implemented.

The regulation at 40 CFR 131.10(g) identifies six factors that may be used to 

demonstrate, through a UAA, when a use specified in section 101(a)(2) of the Act, or a 

subcategory of such a use, is unattainable. The EPA’s current position (and its 

longstanding practice) is that one of these same §131.10(g) “attainability” factors must be 

used by states and tribes to justify why and for how long a variance is necessary for uses 

specified in section 101(a)(2) or sub-categories of such uses. In developing this proposed 

regulation, the EPA considered other situations where a variance may be appropriate and 

the EPA concluded that the current §131.10(g) factors do not accommodate situations 

where a variance may be necessary to facilitate short-term efforts to restore the natural 

physical features (i.e., natural geomorphology) of a system. Specifically, this is meant to 

address the situation when a time-limited exceedance of a criterion might be expected 

while efforts for dam removal or significant wetlands or stream 

reconfiguration/restoration efforts are underway to facilitate restoration of the natural 

physical features of a water body. The proposed new factor is intended only to cover the 

length of time necessary to remove the dam or the length of time in which stream 

restoration activities are actively on-going. Although such a variance might not directly 

impact a NPDES permittee, it may be necessary to allow states and tribes to certify that 

any federal license or permit that may result in the discharge of pollutants in state/tribal 

jurisdiction will still meet their state/tribal WQS, under CWA section 401.

In determining whether or not to grant a variance for uses specified in section 

101(a)(2) and sub-categories of such uses (and subsequently submit such a variance to 

the EPA for review and approval), the state or tribe must consider and evaluate whether 

the available information supports a conclusion that the designated use and criteria are 

not feasible to attain during the variance period based on one of the factors listed in 

§131.14(b)(2).

A factor that has been commonly used to demonstrate the need for a discharger 

specific variance is § 131.10(g)(6), which provides that a state or tribe may remove a 

designated use if “[c]ontrols more stringent than those required by sections 301(b) and 

306 of the Act would result in substantial and widespread economic and social impact.” 

The Interim Economic Guidance for Water Quality Standards, published March 1995 

(see http://water.epa.gov/scitech/swguidance/standards/economics/) provides guidance on 

the types of information that a state or tribe should consider evaluating and include in its 

record to support a variance based on §131.10(g)(6). 27

The state’s or tribe’s record for granting a variance based on “Human caused 

conditions or sources of pollution prevent the attainment of the use and cannot be 

remedied or would cause more environmental damage to correct than to leave in place”28

 

27 The §131.10(g)(6) analysis would include costs of point source controls and the impacts on the 

surrounding community.

28 As specified in §131.10(g)(3) and cross-referenced in §131.14(b)(2)(i).
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may include, but not be limited to, consideration and evaluation of the following types of 

available information:

Monitoring data to determine the current ambient conditions.

Data/maps showing the geographical extent of the problem.

Engineering studies and literature of the relevant remediation alternatives and 

best management practices that could be implemented and documentation 

that none of the alternatives or practices, if implemented, would result in 

attaining the designated use and criteria within the variance timeframe.

Description, with supporting information from the scientific literature, of the 

environmental impacts associated with the remedial alternatives and an 

analysis of what could be done in an environmentally safe manner. Such an 

analysis would facilitate a determination of whether the human caused 

condition or source of pollution would cause more environmental harm to 

remedy than to leave in place. 

Modeling data showing the associated pollutant reductions achievable within 

the timeframe of the variance compared to reductions needed to achieve the 

designated use and criteria.

A variance should be a transparent mechanism that allows a state, tribe or discharger

a defined period of time to conduct any necessary studies so long as the state or tribe 

demonstrates the need for the variance in accordance with the regulations and the state or 

tribe retains the applicable criteria for all other pollutants. The EPA commonly receives 

questions about whether permit compliance schedules can be used for this purpose. 

Permit compliance schedules may only be used in situations where time is needed for a 

permittee to come into compliance with the WQBEL in the permit, not to provide time to 

address uncertainty regarding the appropriateness or attainability of the WQS. 

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section.

iii. Identifying and documenting the controls for other sources related to the 

pollutant(s) and location(s) specified in a waterbody variance that could be 

implemented.

The EPA is proposing to add paragraph (b)(3) at §131.14 to specify that, in addition 

to the other requirements under 131.14(b), for a waterbody variance (one not limited to a 

specific discharger or dischargers), a state or tribe must include an identification and 

documentation of any cost-effective and reasonable BMPs for nonpoint sources related to 

the pollutant(s) and location(s) specified in the variance that could be implemented water 

body wide to make progress towards attaining the designated use and criterion. A state or 

tribe must provide public notice and comment for any such documentation.

Because other sources of pollution (e.g., nonpoint sources) can have a significant 

bearing on whether the designated use and associated criterion for the entire water body 

are attainable, it is essential for states and tribes to consider and provide information to 
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the public regarding the impact that controlling other sources through application of costeffective and reasonable BMPs could have on water quality before granting a waterbody 

variance. Doing so could inform the state’s or tribe’s assessment of what interim actions 

may be needed to make feasible progress towards attaining the designated use and 

criterion related to the pollutant(s) and location(s) specified in the variance, as well as 

what the highest attainable interim designated use and criterion may be and for how long 

they may be needed.

A similar requirement is set out in the WQS regulation at §131.10(d) and (h)(2) that 

specify that a use is deemed attainable and cannot be removed if it can be achieved by the 

imposition of/implementing effluent limits required under sections 301(b) and 306 of the 

Act and cost-effective and reasonable best management practices for nonpoint source 

control. The EPA’s current position is that before removing a designated use states and 

tribes must first evaluate the impact that point and nonpoint source controls might have 

on water quality. When conducting such an evaluation, states and tribes should consider 

the impacts from implementing any

29 cost-effective and reasonable BMPs for nonpoint 

source controls water body wide. In situations where it can be demonstrated that a use is 

precluded by non-anthropogenic stressors (e.g., high levels of a naturally occurring metal 

in a surface water body), the EPA does not expect states and tribes to evaluate nonpoint 

source controls, as controlling nonpoint sources would not lead to attainment. 

The EPA’s proposed requirement for waterbody variances differs from those 

applicable to designated uses because variances are time-limited and targeted serving as a 

tool to facilitate progress toward the designated use and criterion. It is unnecessary to 

require states and tribes to demonstrate that the designated use and criteria are 

unattainable even if cost effective and reasonable BMPs were implemented, as is required 

when revising a designated use, because variances do not “permanently” downgrade the 

designated use but establish a regulatory mechanism by which feasible progress will be 

made during the term of the variance. Instead, a requirement to identify and document 

cost-effective and reasonable BMPs for other sources will assist states and tribes in 

identifying the actions they may need to implement to meet their interim requirements as 

well as to make feasible progress towards attaining the designated use and criterion. 

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section.

c. Part 3—Implementing Variances.

The EPA is proposing to add paragraph (c) at 40 CFR 131.14 specifying that 

variances serve as the basis of a WQBEL included in a NPDES permit for the period the 

variance is in effect. Any activities required to implement the variance shall be included 

as conditions of the NPDES permit for the permittee(s) subject to the variance.

When variances are adopted and approved, they serve as the basis of a WQBEL 

included in a NPDES permit during the variance period. However, any specific actions 

that will be necessary for the discharger to implement the variance and make such 

feasible progress are typically at the discretion of the permitting authority. Therefore, in

 

29 i.e., not just those that may already be required by state regulations.
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§131.14(c), the EPA is proposing regulatory language similar to §131.34(c) and 

§131.40(c) linking the requirements of variances to the NPDES permitting process, 

specifically 40 CFR 122.44(d)(1)(viii)(A) that requires the permitting authority to 

establish limitations that derive from and comply with the applicable WQS. The EPA 

believes the proposed regulatory requirement will ensure proper accountability when 

implementing variances. The proposed provision reflects the provisions in the “Water 

Quality Guidance for the Great Lakes System” (40 CFR Part 132, Appendix F, Procedure 

2).

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section.

d. Part 4—How to Renew a Variance.

The EPA is proposing to add paragraph (d) at 40 CFR 131.14 to specify that to 

obtain the EPA’s approval of a variance renewal, the state or tribe must meet the 

requirements of §131.14 and provide appropriate documentation of the steps taken to 

meet the requirements of the previous variance. Renewal of the variance may be 

disapproved if the applicant did not comply with the conditions of the original variance, 

or otherwise does not meet the requirements of this section. For renewal of a waterbody 

variance, the state or tribe must also include documentation of whether and to what extent 

cost-effective and reasonable BMPs have been implemented to address the pollutant(s) 

subject to the variance and the water quality progress achieved during the variance 

period. 

Although the EPA is proposing to establish a maximum single variance term of no 

more than 10 years, it recognizes that there may be circumstances in which a renewal of a 

variance is both necessary and appropriate. As the EPA’s 1998 ANPRM articulates,

variances are WQS and should be continued or extended only where the initial conditions 

for granting the variance still apply.

30 If a variance term will expire and the applicant 

complied with the conditions of the original variance (e.g., feasible progress has been 

made), but the designated use and criterion remain unattainable, then renewal of a 

variance may be an appropriate option for the state or tribe to consider. 

The EPA is providing an additional requirement for waterbody variances because 

both point and nonpoint sources are contributing to the water quality challenges. The 

state or tribe must document whether and to what extent BMPs have been implemented 

and the water quality progress achieved during the variance period. 

Today’s proposed regulation explicitly provides that the EPA may disapprove a

renewal of the variance if the applicant did not comply with the conditions of the original 

variance, or otherwise does not meet the requirements of §131.14. The EPA recognizes 

that circumstances out of the permittee, state’s or tribe’s control may impact the ability to 

meet the specific conditions and requirements of the variance, even if all required actions 

to implement the variance were completed. The proposed regulatory language allows the 

EPA to consider these factors when determining whether to grant a WQS variance 

renewal. If the EPA disapproves the variance renewal, then the state or tribe must 

 

30 63 FR 36759
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implement its water quality program to meet the applicable designated use and associated 

criteria or conduct a UAA to justify a revision to the designated use and associated 

criteria.

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section.

e. Part 5—Variances for the EPA-Promulgated Designated Uses. 

The EPA is proposing to delete detailed variance procedures promulgated by the 

EPA in 40 CFR 131.34(c) and 131.40(c) and replace them with language specifying that 

the appropriate Regional Administrators may grant variances from the EPA-promulgated 

regulations for Kansas and Puerto Rico consistent with today’s proposed requirements at 

§131.14. 

The EPA promulgated variance procedures that the Regional Administrator could use 

to grant variances from the specific WQS the EPA promulgated for Kansas and Puerto 

Rico in §131.34 and 131.40. Today’s proposal reflects the most efficient and transparent 

approach to ensure that variances granted by the Regional Administrator for the federally 

promulgated standards in Kansas and Puerto Rico are required to meet the same 

requirements as the rest of the United States once the EPA finalizes the nationally 

applicable revisions to 40 CFR part 131.

The EPA invites comment on its proposal and on any other options it should 

consider or on the interpretations expressed in this section.

G. Provisions Authorizing the Use of Permit-Based Compliance Schedules.

1. The EPA Proposal. 

The EPA is proposing to add a new regulatory provision at §131.15 to be consistent 

with the decision of the EPA Administrator in In the Matter of Star-Kist Caribe, Inc.

(1990 WL 324290 (EPA), 1990 EPA App. LEXIS 45, 3 EAD 172 (April 16, 1990)). This 

provision would clarify that a permitting authority may only issue compliance schedules 

for WQBELs in NPDES permits if the state or tribe has authorized issuance of such 

compliance schedules pursuant to state or tribal law in its water quality standards or 

implementing regulations. Any such compliance schedule authorizing provision is a 

WQS subject to the EPA’s review and approval. The proposed provision would also 

clarify that individual compliance schedules issued pursuant to such authorizing 

provisions are not themselves WQS but must be consistent with CWA section 502(17), 

the state’s or tribe’s EPA-approved compliance schedule authorizing provision, and the 

requirements of 40 CFR §§122.2 and 122.47.

2. Rationale for Revision. 

CWA section 502(17) defines “schedule of compliance” to mean “a schedule of 

remedial measures including an enforceable sequence of actions or operations leading to 

compliance with an effluent limitation, other limitation, prohibition, or standard.” The 

EPA’s NPDES regulation at 40 CFR 122.2 defines a schedule of compliance as “a 

schedule of remedial measures included in a ‘permit,’ including an enforceable sequence 

of interim requirements...leading to compliance with the CWA and regulations.” Section 
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301(b)(1)(C) of the Act specifies that there shall be achieved “...not later than July 1, 

1977, any more stringent limitation, including those necessary to meet WQS, treatment 

standards, or schedules of compliance, established pursuant to any State law or 

regulations (under authority preserved by section 1370 of this title) or any other Federal 

law or regulation, or required to implement any applicable water quality standard 

established pursuant to this chapter.”

In In the Matter of Star-Kist Caribe, Inc., the EPA Administrator (in an appeal of an 

EPA-issued NPDES permit) interpreted CWA 301(b)(1)(C) to mean that (1) after July 1, 

1977, permits must require immediate compliance with (i.e., may not contain compliance 

schedules for) effluent limitations based on WQS adopted before July 1, 1977, and (2) 

permit compliance schedules are allowed for effluent limitations based on WQS adopted 

after that date only if the state or tribe has clearly indicated in its WQS or implementing 

regulations that it intends to allow them (i.e., the state’s or tribe’s WQS or implementing 

regulations must contain a provision authorizing the use of permit-based compliance 

schedules). The latter requirement ensures that a permit including such a compliance 

schedule still meets WQS pursuant to CWA section 301(b)(1)(C).

The EPA’s current WQS regulation is silent regarding compliance schedules and 

compliance schedule authorizing provisions. As a result, despite Star-Kist, the EPA is 

concerned that state/tribal permitting authorities may be including compliance schedules 

in permits, thus delaying compliance with a WQS-based WQBEL, even though the 

state/tribe may not have authorized the use of such compliance schedules in its WQS or 

implementing regulations. 

Consistent with the Star-Kist decision, a state or tribe has the discretion to include a 

compliance schedule authorizing provision in its WQS or implementing regulations. Such 

a provision may also be codified in a state or tribe’s NPDES regulations. However, 

regardless of where it appears, a compliance schedule authorizing provision adopted 

pursuant to state or tribal law is considered a WQS subject to the EPA’s approval under 

CWA section 303(c)(3). Although a compliance schedule authorizing provision does not 

describe the desired condition or level of protection of a water body in exactly the same 

way as a designated use or water quality criteria, it expresses the state’s or tribe’s intent 

to allow a delay in meeting the desired condition. Compliance schedule authorizing 

provisions allow the permitting authority to provide a permittee additional time to comply 

with a WQBEL that derives from and complies with the applicable WQS beyond the date 

of permit issuance, which is the date upon which a permittee is otherwise required to 

comply with its WQBEL. In addition, as articulated in the Star-Kist decision, states and 

tribes may only allow this delay if the applicable WQS is new or revised, after July 1, 

1977.

When states and tribes authorize the use of compliance schedules in their WQS or 

implementing regulations, they ensure that WQBELs subject to appropriately issued 

compliance schedules are “fully consistent with, and therefore ‘meet,’ the requirements 

of the State or tribal water quality standard, as contemplated by [CWA] 301(b)(1)(C).” 

Star-Kist at 175. Once approved pursuant to CWA 303(c)(3), the compliance schedule 

authorizing provision itself becomes part of the applicable WQS; therefore, any delay in 
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compliance with a WQBEL pursuant to that permit compliance schedule would be 

consistent with state/tribal WQS. A compliance schedule, as defined by section 502(17) 

of the Act, that is granted pursuant to a state’s or tribe’s approved compliance schedule 

authorizing provision is, on the other hand, a permitting tool and is not itself considered a 

WQS. The EPA has implemented section 502(17) of the Act in the context of the 

NPDES permitting program at 40 CFR 122.2 and 122.47. Any compliance schedule, 

itself, must be consistent with these provisions.

The EPA invites comments on the proposed addition of §131.15. The EPA also 

invites comment on any other options it should consider or on the interpretations 

expressed in this section.

H. Other Changes.

1. The EPA Proposal.

In the course of developing today’s proposal, the EPA identified several spelling 

mistakes, grammatical errors and/or inconsistencies, and incorrect citations in 40 CFR 

part 131, as well as the need for various conforming edits (e.g., provisions that need to be 

re-numbered or re-lettered based on a regulatory addition or deletion outlined in today’s 

proposal). The EPA is proposing the following changes:

§131.2: Change “...necessary to protect the uses” to “...that protect the 

designated uses” (consistency with terminology in §131.11).

§131.3(h): Change “technology-bases” to “technology-based” (spelling mistake).

§131.3(j): Delete “the Trust Territory of the Pacific Islands.”31 Insert the word 

“the” in front of “water quality standards program” (grammatical clarification).

§131.5(a)(1): Change “...has adopted water uses” to “...has adopted designated 

water uses” (grammatical clarification).

§131.5(a)(2): Insert “...based on sound scientific rationale” (consistency with 

language in §131.11).

§131.10(j): Insert “and §131.10(g)” before the word “whenever” (consistency 

with proposed revisions to §131.10(g)).

§131.10(j)(2): Insert “, to remove a subcategory of such a use,” after the first 

instance of “...specified in section 101(a)(2) of the Act” (legal clarification that a 

UAA is also required when removing a subcategory of a use specified in section 

101(a)(2) of the Act without adopting another use in its place).

§131.11(a)(2): Change reference from “40 CFR part 35” to “40 CFR part 130” to 

reflect the correct citation.

§131.11(b): Italicize “Form of criteria” (consistency with formatting in 

§131.11(a)).

 

31 “The Trust Territory of the Pacific Islands” became the “Commonwealth of the Northern Mariana 

Islands” in 1986 via Presidential Proclamation. See 

http://www.presidency.ucsb.edu/ws/index.php?pid=36688#axzz1XrK7AXLN
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§131.12(a)(2): Insert “the protection and” into the phrase “propagation of fish, 

shellfish and wildlife” to be consistent with CWA 101(a)(2) and the rest of the 

WQS regulation at part 131. Change “assure” to “ensure” (grammatical 

clarification).

§131.20(b): Change “hold a public hearing” to “hold public hearings” and add 

“or revising” after “reviewing” (consistency with CWA 303(c) and §131.20(a)). 

Insert “EPA’s” in front of “public participation regulation” (clarification that 40 

CFR part 25 is the EPA’s regulation). Delete the phrase “EPA’s water quality 

management regulation (40 CFR 130.3(b)(6))” (nonexistent citation).

The EPA invites comments on the proposed amendments described above. The EPA 

also invites comment on any other options it should consider or on the interpretations 

expressed in this section.

IV. When Does This Action Take Effect?

Comments on this proposed rulemaking must be received on or before [INSERT 

DATE 90DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER]. Should this 

proposed rulemaking be finalized, the effective date will likely be 60 days after 

publication of the final rule in the Federal Register. For judicial review purposes, the 

effective date will likely be 60 days after publication of the final rule in the Federal 

Register.

The EPA is proposing to require states and tribes to meet the requirements of the 

final rule on the effective date of the final rule. The EPA’s expectation is that, where a 

new or revised requirement necessitates a change to state or tribal WQS, such changes 

will occur within the next triennial review that the state or tribe initiates after the EPA’s

publication of the final rule.

The EPA invites comments on the proposed effective dates. The EPA also invites 

comment on any other options it should consider or on the interpretations expressed in 

this section.

V. Economic Impacts on State and Tribal WQS Programs.

The EPA evaluated the potential incremental administrative burdens and costs that 

may be associated with today’s proposal. Incremental burden and costs are those above 

and beyond the burden and costs associated with implementation of current WQS 

regulations. Because today’s proposal will not establish any requirements directly 

applicable to regulated entities, the focus of the EPA’s economic analysis is to estimate 

the potential administrative burden and costs to state, tribal, and territorial governments, 

and the EPA. The EPA’s economic analysis is documented in Economic Analysis for the 

Water Quality Standards Regulatory Clarifications (Proposed Rule) and can be found in 

the docket for today’s proposal. 

The EPA assessed the potential incremental burden and costs associated with today’s 

proposed regulation revisions by first identifying those elements of the proposed 

revisions that may impose incremental burdens and costs. The EPA estimated the 

incremental number of labor hours potentially required by states and tribes to comply 
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with those elements of the proposed regulations, and then estimated the costs associated 

with those additional labor hours. The EPA identified four areas where incremental 

burdens and costs may be anticipated: (1) one-time burden and costs associated with 

state and tribal rulemaking activities because states and tribes may need to adopt new or 

revised provisions into their WQS, (2) annual costs associated with designating uses 

because identifying the highest attainable use when performing a UAA may require 

additional labor hours, (3) annual costs associated with antidegradation implementation 

including reviewing a greater number and more complex antidegradation requests, and 

(4) annual costs associated with additional development and documentation of variance 

requests. In addition to the proposed requirements included in today’s proposal, the EPA 

is considering and requesting comment on whether the EPA should include a requirement 

that antidegradation implementation methods be formally adopted as WQS and thus 

subject to the EPA’s review and approval or disapproval. Incremental burden and costs 

were estimated for all 50 states, the District of Columbia, 5 territories, and the 39 Indian 

tribes authorized to administer a WQS program with WQS approved by the EPA. 

Estimates of the incremental administrative burden and costs to state and tribal 

governments associated with today’s proposal without the requirement to adopt 

antidegradation implementation methods as WQS are summarized in the following table:

Summary of Incremental Administrative Burden and Costs to State and Tribal Governments 

Associated With Today’s Proposal Without the Requirement to Adopt Antidegradation 

Implementation Methods as WQS

Provision

One-time Recurring

Burden 

(hours)

Cost 

(2013$ 

millions)

Annualized 

Cost (2013$ 

millions/year)1

Burden 

(hours/year)

Cost (2013$ 

millions/year)

Rulemaking Activities 9,500 -

47,500

$0.46 -

$2.28 $0.03 - $0.15 -- --

Designated Uses -- -- -- 240 - 1,200 $0.01 - $0.06

Antidegradation2 97,070 -

145,605 $4.61 - $7.04

Variances -- -- -- 4,620 - 5,310 $0.22 - $0.26

National Total 9,500 -

47,500

$0.46 -

$2.28 $0.03 - $0.15

101,930 -

152,115 $4.84 - $7.36

‘--‘ = not applicable

1. Although the EPA expects these one-time costs to occur once over a 3 year period, they are 

annualized here at 3% discount rate over 20 years for comparative purposes.

2. Includes annual costs associated with reviewing a greater number and more complex 

antidegradation requests.

Estimates of the incremental administrative burden and costs to the EPA associated 

with today’s proposal without the requirement to adopt antidegradation implementation 

methods as WQS are summarized in the following table:
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Summary of Potential Incremental Administrative Burden and Costs to the EPA

Associated With Today’s Proposal Without the Requirement to Adopt Antidegradation 

Implementation Methods as WQS

One-time Recurring

Costs to 

States 

and 

Tribes

(2013$ 

million)

Costs to 

the 

Agency

1 

(2013$ 

million)

Annualized 

Cost to the 

Agency2

(2013$ 

million per 

year)

Burden Costs to 

States and 

Tribes

(2013$ 

million per 

year)

Costs to the 

Agency1 

(2013$ 

million per 

year)

Burden

Hours

3

FTEs

4

Hours 

per 

year3

FTEs 

per 

year

4

$0.46 -

$2.28

$0.09 -

$0.46

$0.01 -

$0.03

1,200 -

6,040

0.58 -

2.9

$4.84 -

$7.36

$0.97 -

$1.47

12,81

0 -

19,47

0

6.16 -

9.36

1. Assuming that the incremental costs to the EPA are equal to 20% of the costs to states 

and tribes. 

2. Although the EPA expects these one-time costs to occur once over a 3 year period, 

they are annualized here at 3% discount rate over 20 years for comparative purposes.

3. Total costs to the Agency divided by hourly wage rate (including overhead and 

benefits) of $75.55 per hour.

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

employees per year (2,080 hours per year).

A summary of the combined estimated costs to all potentially affect states, tribes, 

and the EPA without the requirement to adopt antidegradation implementation methods 

as WQS are summarized in the following table.

Summary of Potential Incremental Administrative Burdens and Costs Associated With the 

Proposed Rule to States, Tribes, and the EPA Without the Requirement to Adopt 

Antidegradation Implementation Methods as WQS

Entities

One-time Recurring

Burden 

(hours)

Cost (2013$ 

millions)

Annualized 

Cost1(2013$ 

million/year)

Burden 

(hours/year)

Cost (2013

$millions/year)

States and tribes 9,500 -

47,500

$0.46 -

$2.28 $0.03 - $0.15 101,930 -

152,115 $4.84 - $7.36

Agency 1,200 -

6,040

$0.09 -

$0.46 $0.01 - $0.03 12,810 -

19,470 $0.97 - $1.47

Total

10,700 -

53,540 $0.55 -

$2.74 $0.04 - $0.18 114,740 -

171,585 $5.81 - $8.83

1. Although the EPA expects these one-time costs to occur once over a 3 year period, they are 

annualized here at 3% discount rate over 20 years for comparative purposes.
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To estimate the total annual cost of today’s proposal without the requirement to 

adopt antidegradation implementation methods as WQS which include both one-time 

costs and recurring costs, the EPA annualized the one-time costs over a period of 20 

years. Using a 20-year annualization period and a discount rate of three percent, total 

annual costs for today’s proposal without the requirement to adopt antidegradation 

implementation methods as WQS are estimated to range from $5.84million ($0.04 

million + $5.81 million) to $9.01 million ($0.18 million + $8.83 million) per year.

In addition to the proposed requirements included in today’s proposal, the EPA is 

considering and requesting comment on whether the EPA should include a requirement 

that antidegradation implementation methods be formally adopted as WQS and thus 

subject to the EPA’s review and approval or disapproval. This additional requirement 

would require affected entities to develop or revise antidegradation implementation 

methods, and adopt the implementation methods in WQS, resulting in one-time 

(nonrecurring) burden and costs. Estimates of the incremental administrative burden and 

costs to state and tribal governments associated with today’s proposal including the 

requirement to adopt antidegradation implementation methods into WQS are summarized 

in the following table:

Summary of Incremental Administrative Burden and Costs to State and Tribal Governments 

Associated With Today’s Proposal With the Requirement to Adopt Antidegradation 

Implementation Methods as WQS

Provision

One-time Recurring

Burden 

(hours)

Cost (2013$ 

millions)

Annualized 

Cost1(2013$ 

millions/year)

Burden 

(hours/year)

Cost (2013$ 

millions/year)

Rulemaking Activities 9,500 -

47,500

$0.46 -

$2.28 $0.03 - $0.15 -- --

Designated Uses - - - 240 - 1,200 $0.01 - $0.06

Antidegradation 33,600 -

67,200

$1.61 -

$3.23 $0.11 - $0.22

97,070 -

145,605 $4.61 - $7.04

Variances

- - -

4,620 -

5,310 $0.22 - $0.26

National Total 43,100 -

114,700

$2.07 -

$5.51 $0.14 - $0.37

101,930 -

152,115 $4.84 - $7.36

‘--‘ = not applicable

1. Although the EPA expects these one-time costs to occur once over a 3 year period, they are 

annualized here at 3% discount rate over 20 years for comparative purposes.

Estimates of the incremental administrative burden and costs to the EPA associated 

with today’s proposal including the requirement to adopt antidegradation implementation 

methods into WQS are summarized in the following table:
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Summary of Potential Incremental Administrative Burden and Costs to the EPA

Associated With Today’s Proposal With the Requirement to Adopt Antidegradation 

Implementation Methods as WQS

One-time Recurring

Costs to 

States and 

Tribes

(2013$ 

million)

Costs to 

the 

Agency1 

(2013$ 

million)

Annualized 

Cost to the 

Agency2

(2013$ 

million per 

year)

Burden Costs to States 

and Tribes

(2013$ 

million per 

year)

Costs to the 

Agency1 

(2013$ 

million per 

year)

Burden

Hours3FTEs4

Hours 

per 

year3

FTEs 

per 

year

4

$2.07 -

$5.51

$0.41 -

$1.10

$0.03 –

$0.07

5,480 -

14,570

2.63 -

7.01 $4.84 - $7.36 $0.97 -$1.47

12,810 

-

19,470

6.16 -

9.36

1. Assuming that the incremental costs to the EPA are equal to 20% of the costs to states and 

tribes. 

2. Although the EPA expects these one-time costs to occur once over a 3 year period, they are 

annualized here at 3% discount rate over 20 years for comparative purposes.

3. Total costs to the Agency divided by hourly wage rate (including overhead and benefits) of 

$75.55 per hour.

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

employees per year (2,080 hours per year).

A summary of the combined estimated costs of today’s proposal to all potentially 

affect states, tribes, and the EPA including the requirement to adopt antidegradation 

implementation methods into WQS are summarized in the following table.

Summary of Potential Incremental Administrative Burdens and Costs Associated with the 

Proposed Rule to States, Tribes, and the EPA With the Requirement to Adopt Antidegradation 

Implementation Methods as WQS

Entities

One-time Recurring

Burden 

(hours)

Cost (2013$ 

millions)

Annualized 

Cost1(2013$ 

millions/year)

Burden 

(hours/year)

Cost (2013

$millions/year)

States and tribes 43,100 -

114,700 $2.07 - $5.51 $0.14 - $0.37 101,930 -152,115 $4.84 - $7.36

Agency 5,480 -

14,570 $0.41 - $1.10 $0.03 - $0.07 12,810 -19,470 $0.97 - $1.47

Total 48,580 -

129,270 $2.48 - $6.61 $0.17 - $0.44 114,740 -171,585 $5.81 - $8.83

1. Although the EPA expects these one-time costs to occur once over a 3 year period, they are 

annualized here at 3% discount rate over 20 years for comparative purposes.

To estimate the total annual cost of today’s proposal including the requirement to 

adopt antidegradation implementation methods as WQS which include both one-time 

costs and recurring costs, the EPA annualized the one-time costs over a period of 20 
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years. Using a 20-year annualization period and a discount rate of three percent, total 

annual costs for today’s proposal with the requirement to adopt antidegradation 

implementation methods as WQS are estimated to range from $5.98 million ($0.17 

million + $5.81 million) to $9.27 million ($0.44 million + $8.83 million) per year.

In addition to estimating potential burden and costs, the EPA also evaluated the 

potential benefits associated with today’s proposal. States, tribes, stakeholders, and the 

public will benefit from today’s clarifications of the WQS regulations by ensuring better 

utilization of available WQS tools that allow states and tribes the flexibility to implement 

their WQS in an efficient manner while providing transparency and open public 

participation. Although associated with potential administrative burden and costs in 

some areas, today’s proposal has the potential to partially offset these costs by reducing 

regulatory uncertainty and consequently increasing overall program efficiency.

Furthermore, more efficient and effective implementation of state and tribal WQS has the 

potential to provide 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 today’s proposal 

include the protection and improvement of public health and greater recreational 

opportunities. The EPA acknowledges that achievement of any benefits associated with 

cleaner water would involve additional control measures, and thus costs to regulated 

entities and non-point sources, that have not been included in the economic analyses for 

this proposed rule. The EPA has not attempted to quantify either the costs of such 

control measures that might ultimately be required as a result of this rule, or the benefits 

they would provide. Complete details on how the EPA evaluated burden, costs, and 

benefits are documented in Economic Analysis for the Water Quality Standards 

Regulatory Clarifications (Proposed Rule) included in the docket for today’s proposal.

The EPA invites comments on its economic analysis. Specifically, the EPA invites 

comments on the accuracy of the burden and costs estimates presented in this proposal, 

and any actual state or tribal data that may help to refine these estimates. This proposal

does not establish any requirements directly applicable to regulated point sources or

nonpoint sources of pollution, although the EPA recognizes that these sources could 

potentially incur costs as a result of changes to WQS adopted by states and tribes as a 

result of this rule (states and tribes could also adopt new or revised WQS independent of 

this proposed rule). However, unlike some other EPA WQS rules for which an 

economic analysis was prepared, this proposal does not lend itself to identification of 

readily predictable outcomes regarding changes to state water quality standards that 

might result. Likewise, the EPA could not predict requirements that could ultimately be 

imposed on NPDES permittees and nonpoint sources. Thus, the EPA has not analyzed 

potential costs or cost savings associated with any consequences of revised state or tribal 

WQS. Nonetheless, the EPA is interested in the potential implications of today’s 

proposal for regulated entities and non-point sources and on whether and how it should 

incorporate such costs in its economic analysis of the rule.
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VI. Statutory and Executive Order Reviews.

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 

13563: Improving Regulation and Regulatory Review.

Under Executive Order (E.O.) 12866 (58 FR 51735), this action is a “significant 

regulatory action.” Accordingly, the EPA submitted this action to the Office of 

Management and Budget (OMB) for review under E.O.s 12866 and 13563 (76 FR 3821) 

and any changes made in response to OMB recommendations have been documented in 

the docket for this action.

In addition, the EPA prepared an analysis of the potential costs and benefits 

associated with this action. This analysis is contained in “Economic Analysis for the 

Proposed Revisions to Water Quality Standards Regulatory Revisions.” A copy of the 

analysis is available in the docket for this action and the analysis is briefly summarized in 

Section V of the preamble.

B. Paperwork Reduction Act.

The information collection requirements in this proposed rule have been submitted 

for approval to the Office of Management and Budget (OMB) under the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) 

document prepared by the EPA has been assigned EPA ICR number 2449.01.

The EPA is proposing the WQS Regulatory Clarifications Rule to improve the 

regulation’s effectiveness in helping restore and maintain the chemical, physical, and 

biological integrity of the nation’s waters. The core of the current regulation has been in 

place since 1983; since then, a number of issues have been raised by stakeholders or 

identified by the EPA in the implementation process that will benefit from clarification 

and greater specificity. The proposed rule addresses the following key program areas: 

(1) Administrator’s determinations that new or revised WQS are necessary, 

(2) designated uses, (3) triennial reviews, (4) antidegradation, (5) variances to WQS, and 

(5) compliance schedule authorizing provisions. In addition to the proposed requirements 

included in today’s proposal, the EPA is considering and requesting comment on whether 

the EPA should require that antidegradation implementation methods be adopted as WQS 

and thus subject to the EPA’s review and approval or disapproval. This mandatory

information collection will ensure the EPA has the needed information to review 

standards and make approvals or disapprovals in accordance with provisions in the 

proposed Water Quality Standards Regulatory Clarifications Rule. Under the Clean 

Water Act (CWA), the EPA is responsible for reviewing and approving or disapproving 

new and revised WQS submitted by states and tribes. The EPA will use the information 

required by this proposed rule to carry out its responsibility under the CWA. In reviewing 

state and tribal standards submissions, the EPA considers whether submissions are 

consistent with the WQS regulation at part 131. The WQS Regulatory Clarifications Rule 

will add new requirements to part 131. If the information collection activities in the WQS 

Regulatory Clarifications Rule are not carried out, specific improvements in the 

implementation of the WQS program will not take place. In some cases, implementation 
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and control steps such as total maximum daily loads and National Pollutant Discharge 

Elimination System permits may not be as protective as necessary under the CWA.

Burden is defined at 5 CFR 1320.3(b). The EPA expects that the proposed rule will 

lead to incremental burden hours and labor costs in the following areas: rulemaking 

activities, designated uses, antidegradation, and variances to WQS. The EPA estimates 

the cost of labor from data on state government hourly wage rates (data are not available 

for tribes). The labor categories chosen as applicable to WQS regulatory revision efforts 

are Environmental Scientist, Department Manager, Environmental Engineer, and 

Economist. Given the 2012 labor rates for these categories, inflated to March 2013

dollars using the Bureau of Labor Statistics (BLS) Employment Cost Index for 

professional and related state and local government workers (116.0/115.0 = 1.01), and 

accounting for benefits using the BLS Employer Cost for Employee Compensation for 

state and local professional government workers (32.7% of total compensation is 

attributable to benefits), the EPA calculated an average hourly wage rate of $48.

The EPA estimates the incremental number of labor hours using historical 

information and data, and the historical knowledge and best professional judgment of 

EPA personnel with experience administering the WQS program. A total of 95

governmental entities are potentially affected by the proposed rule: 50 states, the District 

of Columbia, 6 territories, and 39 tribes that have authority to administer WQS programs. 

Rulemaking activities result in one-time (nonrecurring) burden and costs. Note that these 

one-time activities will occur over an initial three-year period. The proposed rule will 

also require affected entities to undertake the following activities each year: conduct use 

attainability analyses to determine the highest attainable use, review alternative analyses 

in antidegradation requests, review additional antidegradation requests for high quality 

waters, comply with new submission requirements for variances, and review additional 

variance renewal applications. Given the EPA’s estimates of the number and frequency 

of labor hours associated with each of the proposed provisions, the total one-time 

incremental burden (during each of the first three years) associated with the proposed rule 

without requiring adoption of antidegradation implementation methods as WQS ranges 

from 3,170 hours to 15,830 hours, while the annual incremental burden ranges from 

101,930 hours to 152,115 hours. Given an hourly wage rate of $48, these labor hours lead 

to total one-time costs (incurred during each of the first three years) of approximately 

$0.15 million to $0.76 million and annual costs of $4.84 million to $7.36 million. These

incremental burden and costs are associated with a total of 32 one-time responses per 

year during the initial three-year period for rulemaking activities. In addition, the number 

of annual responses is 1,405 responses.

In addition to the proposed requirements included in today’s proposal, the EPA is 

considering and requesting comment on whether the EPA should include a requirement 

that antidegradation implementation methods be formally adopted as WQS and thus 

subject to the EPA’s review and approval or disapproval. This additional requirement 

would require affected entities to develop or revise antidegradation implementation 

methods, and adopt antidegradation implementation methods as WQS resulting in onetime (nonrecurring) burden and costs. Including this additional requirement, the total 

one-time incremental burden (during each of the first three years) associated with the 
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proposed rule ranges from 14,370 hours to 38,230 hours, while the annual incremental 

burden remains the same ranging from 101,930 hours to 152,115 hours. Given an hourly 

wage rate of $48, these labor hours lead to total one-time costs (incurred during each of 

the first three years) of approximately $0.16 to $0.82 million and annual costs of $4.84 to 

$7.36 million. These incremental burden and costs are associated with a total of 32 onetime responses per year during the initial three-year period for rulemaking activities. In 

addition, the number of annual responses is 1,405 responses.

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.

To comment on the Agency's need for this information, the accuracy of the provided 

burden estimates, and any suggested methods for minimizing respondent burden, the 

EPA has established a public docket for this rule, which includes this ICR, under Docket 

ID number EPA-HQ-OW-2010-0606. Submit any comments related to the ICR to the 

EPA and OMB. See ADDRESSES section at the beginning of this notice for where to 

submit comments to the EPA. Send comments to OMB at the Office of Information and 

Regulatory Affairs, Office of Management and Budget, 725 17th Street, NW, 

Washington, DC 20503, Attention: Desk Office for EPA. Since OMB is required to make 

a decision concerning the ICR between 30 and 60 days after [Insert date of publication in 

the Federal Register.], a comment to OMB is best assured of having its full effect if OMB 

receives it by [Insert date 30 days after publication in the Federal Register.]. The final 

rule will respond to any OMB or public comments on the information collection 

requirements contained in this proposal.

C. Regulatory Flexibility Act.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice and comment rulemaking 

requirements under the Administrative Procedure Act or any other statute unless the 

agency certifies that the rule will not have a significant economic impact on a substantial 

number of small entities. Small entities include small businesses, small organizations, and 

small governmental jurisdictions.

For purposes of assessing the impacts of today’s rule on small entities, small entity is 

defined as (1) a small business as defined by the Small Business Administration’s (SBA) 

regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a 

government of a city, county, town, school district or special district with a population of 

less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is 

independently owned and operated and is not dominant in its field.

After considering the economic impacts of today’s proposed rule on small entities, I 

certify that this action will not have a significant economic impact on a substantial 

number of small entities. This proposed rule will not impose any requirements on small 

entities. 
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State and tribal governments responsible for administering or overseeing water 

quality programs may be directly affected by this rulemaking, as states and 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. The EPA continues to be interested in the potential 

impacts of the proposed rule on small entities and welcome comments on issues related to 

such impacts.

D. Unfunded Mandates Reform Act.

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. The EPA estimates total annual costs to states and tribes to 

range from $3,690,000 to $5,520,000. Thus, this rule is not subject to the requirements of 

sections 202 or 205 of the Unfunded Mandates Reform Act of 1995 (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).

Under section 6(b) of E.O. 13132, the EPA may not issue an action that has 

federalism implications, that imposes substantial direct compliance costs, and that is not 

required by statute, unless the Federal government provides the funds necessary to pay 

the direct compliance costs incurred by state and local governments, or the EPA consults 

with state and local officials early in the process of developing the proposed action. In 

addition, under section 6(c) of E.O. 13132, the EPA may not issue an action that has 

federalism implications and that preempts state law, unless the Agency consults with 

state and local officials early in the process of developing the proposed action.

The EPA has concluded that the action does not have federalism implications. The 

EPA is proposing changes to provide clarity and transparency in the WQS regulation that 

may require state and local officials to reevaluate or revise their standards. However, it 

will not impose substantial direct compliance costs on state or local governments, nor 

will it preempt state law. Thus, the requirements of sections 6(b) and 6(c) of the E.O. do 

not apply to this action.

Consistent with the EPA’s policy, the EPA nonetheless consulted with state and local 

officials early in the process of developing the proposed action to allow them to provide

meaningful and timely input into its development. In August and September 2010, the 

EPA consulted with representatives from states and intergovernmental associations to 

hear their views on the proposed regulatory changes. 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 of antidegradation and designated uses. 

The EPA’s view is that such changes would generally codify the EPA’s current practice 

and provide clarity of expectations to state and local regulators. Participants urged the 

EPA to ensure that states with satisfactory regulations in these areas are not unduly 

burdened by the proposed changes.
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Keeping with the spirit of E.O. 13132, and consistent with the EPA’s policy to 

promote communications between the EPA and state and local governments, the EPA

specifically solicits comment on this proposed action from state and local officials. In 

particular, the EPA requests comment on any provision in this proposed rule that state 

officials believe would impose an undue burden on state water quality standards

programs.

F. Executive Order 13175.

Subject to the E.O. 13175 (65 FR 67249), the EPA may not issue a regulation that 

has tribal implications, that imposes substantial direct compliance costs, and that is not 

required by statute, unless the federal government provides the funds necessary to pay the 

direct compliance costs incurred by tribal governments, or the EPA consults with tribal 

officials early in the process of developing the proposed regulation and develops a tribal 

summary impact statement.

The EPA has concluded that this action may have tribal implications. However, it 

will neither impose substantial direct compliance costs on tribal governments, nor 

preempt tribal law. 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, 39

have federally approved WQS in their respective jurisdictions. All of these authorized 

tribes are subject to this proposed rule. However, this rule might impact other tribes as 

well because federal, state or authorized tribal standards may apply to waters adjacent to 

the tribal waters. The EPA consulted with tribal officials early in the process of 

developing this regulation to allow them to provide meaningful and timely input into its 

development. In August 2010, the EPA held a tribes-only consultation session to hear 

their views and answer questions of all interested tribes on the targeted areas the EPA is 

considering 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. 

The EPA has considered the burden to states and tribes in developing the proposed option 

and, when possible, has chosen the option providing sufficient direction while allowing 

state or tribal resources to be spent addressing other aspects of their WQS programs. The 

EPA also intends to release updated guidance in a new edition of the WQS Handbook. 

The EPA specifically solicits additional comment on this proposed action from tribal 

officials.

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

and Safety Risks.

This action is not subject to E.O. 13045 (62 FR 19885) because it is not 

economically significant as defined in E.O. 12866, and because the Agency does not 

believe the environmental health or safety risks addressed by this action present a 

disproportionate risk to children. 
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H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution, or Use.

This action is not a “significant energy action” as defined in E.O. 13211 

(66 FR 28355), because it is not likely to have a significant adverse effect on the supply, 

distribution, or use of energy.

I. National Technology Transfer and Advancement Act.

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 

(NTTAA), Pub. L. 104–113, 12(d) (15 U.S.C. 272 note) directs the EPA to use voluntary 

consensus standards in its regulatory activities unless to do so would be inconsistent with 

applicable law or otherwise impractical. Voluntary consensus standards are technical 

standards (e.g., materials specifications, test methods, sampling procedures, and business 

practices) that are developed or adopted by voluntary consensus standards bodies. 

NTTAA directs the EPA to provide Congress, through OMB, explanations when the 

Agency decides not to use available and applicable voluntary consensus standards.

This proposed rulemaking does not involve technical standards. Therefore, the EPA

is not considering the use of any voluntary consensus standards.

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

Minority Populations and Low-Income Populations.

E.O. 12898 (59 FR 7629) establishes federal executive policy on environmental 

justice. Its main provision directs federal agencies, to the greatest extent practicable and 

permitted by law, to make environmental justice part of their mission by identifying and 

addressing, as appropriate, disproportionately high and adverse human health or 

environmental effects of their programs, policies, and activities on minority populations 

and low-income populations in the United States.

The EPA has determined that this proposed 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 proposed rulemaking does not directly establish water 

quality standards for a state or tribe. In addition, this proposed rulemaking is national in 

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

List of Subjects in 40 CFR part 131.

Environmental protection, water quality standards, regulatory revision, designated uses, 

antidegradation, variances, triennial reviews, water quality criteria, compliance schedule 

authorizing provisions.

________________________

Dated: [Insert Date]

_____________________________

Gina McCarthy,

Administrator.
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EO 12866_OW WQS RIN 2040-AF 16 NPRM FRN_20120722 Revised Rule Text.

For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 131 as 

follows:

PART 131—WATER QUALITY STANDARDS

1. The authority citation for part 131 continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

Subpart A-[Amended]

§131.2-[Amended]

2. Amend §131.2 by revising the first sentence to read as follows:

§ 131.2 Purpose.

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

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

protect the designated uses.

§131.3-[Amended]

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

* * * * *

(m) Highest attainable use is the aquatic life, wildlife, and/or recreation use that is

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

determined using best available data and information through a use attainability analysis 

defined in §131.3(g). 
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§131.5-[Amended]

4. Amend §131.5 as follows:

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

§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;

* * * * *

b. Add paragraph (a)(3) and re-designate paragraphs (a)(3) through (a)(5) as (a)(4) 

through (a)(6):

* * * * *

(3) Whether the State has adopted an antidegradation policy consistent with 131.12(a), 

and if the State has chosen to adopt implementation methods, whether those 

implementation methods are consistent with 131.12;

(4) Whether the State has followed its legal procedures for revising or adopting 

standards;

(5) Whether the State standards which do not include the uses specified in section 

101(a)(2) of the Act are based upon appropriate technical and scientific data and 

analyses, and

(6) Whether the State submission meets the requirements included in §131.6 of this 

part and, for Great Lakes States or Great Lakes Tribes (as defined in 40 CFR 132.2) to 

conform to section 118 of the Act, the requirements of 40 CFR part 132.

(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. 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-[Amended]

§131.10-[Amended]
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5. Amend §131.10 by revising paragraphs (g), (j), and (k) as follows:

§131.10 Designation of uses.

* * * * *

(g) Pursuant to §131.10(j), States may designate or remove a use or a sub-category of 

a use as long as the action does not remove protection for an existing use, and the State 

can demonstrate that attaining the use is not feasible because: of one of the six factors in 

this paragraph. If a State adopts new or revised water quality standards based on a use 

attainability analysis, the State shall also adopt the highest attainable use and the criteria 

to protect that use. To meet this requirement, States may, at their discretion, utilize their 

current use categories or subcategories, develop new use categories or subcategories, or 

adopt another use which may include a location-specific 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 or has designated uses for a water body for the first time

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 subcategory of such a use which requires criteria less stringent than previously applicable.

* * * * *

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

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

include the uses specified in section 101(a)(2) of the Act, or 

(2) The State wishes to remove a designated use that is not specified in section 

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

the Act which requires criteria at least as stringent as previously applicable.

§131.11-[Amended]

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

(a) * * *

* * * * *

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

discharges to identify specific water bodies where toxic pollutants may be adversely 

affecting water quality or the attainment of the designated water use or where the levels 

of toxic pollutants are at a level to warrant concern and must adopt criteria for such toxic 

pollutants applicable to the water body sufficient to protect the designated use. Where a 
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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:

* * * * *

§131.12-[Amended]

7. Amend §131.12 by revising the section heading and paragraphs (a) and (a)(2) and 

adding paragraph (b) as follows:

§ 131.12 Antidegradation Policy and Implementation Methods

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

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

(1) * * *

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

and propagation of fish, shellfish, and wildlife and recreation in and on the water, that 

quality shall be maintained and protected unless the State finds, after full satisfaction of 

the intergovernmental coordination and public participation provisions of the State’s 

continuing planning process, that allowing lower water quality is necessary to 

accommodate important economic or social development in the area in which the waters 

are located. In allowing such degradation or lower water quality, the State shall ensure 

water quality adequate to protect existing uses fully. Further, the state shall ensure 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.

* * * * *

(b) The State shall develop and make available to the public statewide methods 

for implementing the antidegradation policy adopted pursuant to paragraph (a) of this 

section. A State’s antidegradation implementation methods shall be designed to achieve 

antidegradation protection consistent with paragraph (a) of this section. Such methods 

must ensure that:

(1) High quality waters are identified on a parameter-by-parameter basis or on a water 

body-by-water body basis at the State’s discretion, but must not exclude any water body 

from high quality water protection solely because not all of the uses specified in CWA 

section 101(a)(2) are attained; and

(2) The State will only make a finding that lowering high water quality is necessary, 

pursuant to paragraph (a)(2) of this section, after conducting an alternatives analysis that 

evaluates a range of non-degrading and minimally degrading practicable alternatives that 

have the potential to prevent or minimize the degradation associated with the proposed 
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activity. If the State can identify any practicable alternatives, the State must choose one 

of those alternatives to implement when authorizing a lowering of high water quality.

§131.14-[Added]

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

§131.14 Water Quality Standards Variances.

States may, at their discretion, grant variances subject to the provisions of this section 

and public participation requirements at §131.20(b). A water quality standards variance 

(WQS variance) is a time-limited designated use and criterion for a specified pollutant(s), 

permittee(s), and/or water body or waterbody segment(s) that reflect the highest 

attainable condition during the specified time period. WQS variances are water quality 

standards subject to EPA review and approval or disapproval and must be consistent with 

this section. Any such WQS variances adopted after [insert effective date of the final 

rule] must be consistent with this regulatory section.

(a) Applicability:

(1) All applicable WQS not specifically addressed by the WQS variance 

remain applicable. 

(2) (i) Where a state adopts a WQS variance, the State regulations must 

continue to reflect the underlying designated use and criterion unless the 

state adopts and EPA approves a revision to the underlying designated use 

and criterion consistent with §131.10 or §131.11. 

(ii) The interim requirements specified in the WQS variance are in effect 

during the term of the WQS variance and apply for CWA section 402 

permitting purposes and in issuing certifications under section 401 of the 

Act for the permittee(s), pollutant(s), and/or water body or waterbody 

segment(s) covered by the WQS variance. For these limited purposes, the 

interim requirements will be the standards applicable for purposes of the 

CWA under 40 CFR 131.21(c)-(e).

(3) A WQS variance shall not be granted if the designated use and criterion 

addressed by the proposed WQS variance can be achieved by 

implementing technology-based effluent limits required under sections 

301(b) and 306 of the Act.

(b) Submission Requirements:

(1) A WQS variance must specify the following:

(i) Identifying information: A WQS variance must identify the 

pollutant(s), permittee(s), and/or the water body or waterbody 

segment(s) to which the WQS variance applies.

(ii) WQS that apply during a variance for CWA section 402 

permitting purposes and in issuing certifications under section 

401 of the Act: A WQS variance must specify (1) the highest 

attainable interim use and interim numeric criterion or (2) an 

interim numeric effluent condition that reflects the highest 
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attainable condition for a specific permittee(s) during the term of 

the variance. Neither (1) nor (2) shall result in any lowering of 

the currently attained water quality unless a time-limited 

lowering of water quality is necessary during the term of a 

variance for restoration activities, consistent with paragraph 

(b)(2)(ii) of this section.

(iii) Date the WQS variance will expire: States must include an 

expiration date for all WQS variances, consistent with paragraph 

(b)(2) of this section. WQS variances must be as short as 

possible but expire no later than 10 years after state adoption. 

(2) The State must submit a demonstration justifying the need for a WQS 

variance. 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 submit a 

demonstration that attaining the designated use and criterion is not feasible 

during the term of the WQS variance because:

(i) One of the factors listed in §131.10(g) applies, or 

(ii) Actions necessary to facilitate restoration through dam removal 

or other significant wetland or stream reconfiguration activities 

preclude attainment of the designated use and criterion while the 

actions are being implemented.

(3) For a waterbody variance, the state must identify and document any costeffective and reasonable best management practices for nonpoint source 

controls related to the pollutant(s) and location(s) specified in the WQS 

variance that could be implemented to make progress towards attaining the 

designated use and criterion. A State must provide public notice and 

comment for any such documentation. 

(c) Implementing variances in NPDES permits: Consistent with paragraph (a)(2)(ii) 

of this section, a WQS variance serves as the basis of a water quality-based 

effluent limit included in a NPDES permit for the period the variance is in effect. 

Any limitations required to implement the WQS variance shall be included as 

conditions of the NPDES permit for the permittee(s) subject to the WQS variance. 

(d) WQS variance renewals: EPA may approve a WQS variance renewal if the State 

meets the requirements of this section and provides documentation of the actions

taken to meet the requirements of the previous WQS variance. For a waterbody 

WQS variance renewal, the state must also provide documentation of whether and 

to what extent BMPs have been implemented to address the pollutant(s) subject to 

the WQS variance and the water quality progress achieved during the WQS 

variance period. Renewal of a WQS variance may be disapproved if the applicant 

did not comply with the conditions of the original WQS variance, or otherwise 

does not meet the requirements of this section.

§131.15-[Added]

9. Add §131.15 to subpart B to read as follows:
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§131.15 Compliance Schedule Authorizing Provisions.

A State may, at its discretion and consistent with state law, authorize schedules of 

compliance for water quality-based effluent limits (WQBELs) in NPDES permits by 

including a compliance schedule authorizing provision in its water quality standards or 

implementing regulations. Any such provision is a water quality standard subject to EPA 

review and approval and must be consistent with sections 502(17) and 301(b)(1)(C) of 

the Act. Individual compliance schedules issued pursuant to such authorizing provisions 

are not themselves water quality standards. Individual compliance schedules must be 

consistent with CWA section 502(17), the state’s EPA-approved compliance schedule 

authorizing provision, and the requirements of §122.2 and §122.47.

Subpart C-[Amended]

§131.20-[Amended]

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 and, 

as appropriate, modifying and adopting standards; in particular, any water body segment 

with water quality standards 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 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. 

Similarly, a State shall re-examine its water quality criteria to determine if any criteria 

should be revised in light of any new or updated CWA section 304(a) criteria 

recommendations to assure that designated uses continue to be protected. Procedures 

States establish for identifying and reviewing water bodies for review should be 

incorporated into their Continuing Planning Process.

(b) Public Participation. The State shall hold public hearings for the purpose of 

reviewing or 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.

* * * * *

§131.22-[Amended]

11. Amend §131.22 by revising paragraph (b) to read as follows:

§131.22 EPA promulgation of water quality standards.

* * * * *
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(b) The Administrator may also propose and promulgate a regulation, applicable to 

one or more States, 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, 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-[Amended]

§131.34-[Amended]

12. Amend §131.34 by revising paragraph (c) and removing paragraphs (c)(1) 

through (c)(5) to read as follows:

§131.34 Kansas.

* * * * *

(c) Water quality standard variances. The Regional Administrator, EPA Region 7, is 

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

this section where the requirements of §131.14 are met. 

§131.40-[Amended]

13. Amend §131.40 by revising paragraph (c) and removing paragraphs (c)(1) 

through (c)(5) 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.