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Analysis of Endangered Species Act Obligations Related to the Water Quality Standards

Regulatory Revisions Rulemaking Final Rule

The final water quality standards (WQS) rulemaking action (“the final rule”), which updates 40 CFR Part 131, is not subject to §7 of the Endangered Species Act (ESA) because the promulgation of the final rule will not affect listed species or designated critical habitat.

Overview

Under 50 CFR §402.14(a), EPA must only consult on an action if it is one the Agency determines “may affect” listed species or designated critical habitat. Effects are defined to include direct and indirect effects. Indirect effects are those that are caused by an action and that are later in time, but still are reasonably certain to occur. See 50 CFR § 402.02 (definition of effects). The final rule has no direct or indirect effects to listed species or designated critical

habitat.

Many of the regulatory changes in the final rule do not change the manner in which the WQS program is currently being implemented by states, territories and authorized tribes (hereinafter, states and authorized tribes). The function of this final rule is predominantly to codify and clarify existing federal policies. To the extent portions of this final rule do substantively change the manner in which the WQS program is being implemented by states and authorized tribes, the indirect consequences for listed species and designated critical habitat are speculative and are not reasonably certain to occur. Because this action will have no effect recognized under the ESA, the Agency is not required to engage in ESA Section 7 consultation

with the Fish and Wildlife Service or the National Marine Fisheries Service.

The final rule addresses six substantive program areas: (1) Administrator’s determination that new or revised WQS are necessary, (2) designated uses, (3) triennial reviews, (4) antidegradation, (5) WQS variances, and (6) permit compliance schedule authorizing provisions. The following detailed analysis sets forth why the rule provisions related to each of these program areas do not affect listed species or designated critical habitat.

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

The final rule codifies EPA’s pre-existing interpretation and practice regarding what constitutes an Administrator’s determination that new or revised WQS are necessary. This codification is not a substantive change; it does not change EPA’s authority to issue an Administrator’s determination, nor does it alter EPA’s legal obligations after issuing an Administrator’s determination. The rule merely restates the Agency’s existing position regarding the process of making an Administrator’s determination, consistent with existing case law and promotes public transparency. While the regulatory codification of the Agency’s position may facilitate effective communication between EPA, states, tribes, and stakeholders, and reduces the frequency with which various EPA communications are misconstrued as Administrator’s determinations, not one of these administrative benefits would have a direct effect on listed species or designated habitat, or be the cause of any indirect effect that is reasonably certain to

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2. Designated Uses

The final rule refines how states and authorized tribes assign and revise designated uses for individual water bodies and clarifies when a use attainability analysis (UAA) is required what is required to be submitted to EPA when adopting such new or revised WQS. While this will allow for better communication between EPA, states, authorized tribes, and stakeholders, regarding how states and authorized tribes articulate the level of protection that meets the purposes of the CWA, it will have no direct effect on listed species and designated critical habitat, nor is it the cause of any indirect effect that is reasonably certain to occur.

This regulatory change pertains to the avenue by which states and authorized tribes may show that uses specified in section 101(a)(2) of the Act are not attainable. The rule clarifies that a UAA is required: (1) when a state or authorized tribe designates uses for the first time or has previously designated uses that do not include the uses specified in section 101(a)(2) of the Act,and (2) when removing or revising a use specified in section 101(a)(2) of the Act (or a subcategory of such a use). In addition, the revision resolves ambiguity about adopting a subcategory of a 101(a)(2); a UAA is only required when the criteria are less stringent than the previously applicable criteria.

For non-101(a)(2) uses, a UAA is not required when a state or authorized tribe removes or revises a non-101(a)(2) use, but clarifies that states and authorized are still required to submit documentation consistent with CWA section 303(c)(2)(A) to support the state or authorized tribe’s action so as to recognize that states’ and authorized tribes’ decisions about non-101(a)(2) uses must be consistent with the statute and transparent to the public and EPA. The final rule also provides clarity by including a regulatory definition for a non-101(a)(2) use. Where a state or authorized tribe is adopting new or revised designated uses other than the uses specified in section 101(a)(2) of the Act, or removing designated uses, it must submit a “use and value demonstration,” justifying how its consideration of the use and value of water for those uses listed in § 131.10(a) appropriately supports the states’ or authorized tribe’s action. Even though existing WQS provisions, when read together 40 CFR 131.6 and 131.10(a), already require states and authorized tribes to submit a use and value demonstration for all use changes, EPA’s final rule makes this requirement explicit to avoid any future confusion and specifies that a UAA may be used to satisfy the requirement.

Finally, the final rule provides that if a state or authorized tribe adopts a new or revised water quality standard based on a required use attainability analysis, the state or authorized tribe shall also adopt the highest attainable use (HAU), as defined in the final rule. This requirement is fully consistent with program implementation and expectations as it ensures that states and authorized tribes adopt WQS that continue to serve the Act’s goal of water quality that provides for the uses specified in section 101(a)(2) of the CWA wherever attainable. For clarity, the rule also adds a definition for HAU at § 131.3(m) with the goal of ensuring that the resulting HAU is clear to states, authorized tribes, stakeholders and the public.Page 3 of11

There are no direct effects on listed species or designated critical habitat from the provisions noted above, which are related to the type of demonstration that is required for use changes and the minimum requirements for the use that must remain protected when states and authorized tribes exercise their authority to change designated uses. Although the final rule may alter the subsequent behavior of states or authorized tribes with regard to documentation of use changes, whether and how such behaviors would occur and what impacts such behaviors would have on listed species and critical habitat are entirely speculative. To the extent that the requirements regarding when a fullUAA is required, as opposed to a use and value demonstration, would alter the level of protection states or authorized tribes may choose to afford their waters, such outcome is not predictable or quantifiable. Similarly, to the extent that the requirements regarding maintenance of the HAU would alter the level of protection otherwise afforded by states or authorized tribes, any such outcome is also not predictable or quantifiable, especially given that many if not most states and authorized tribes already adopt alternate uses when adopting new or revised WQS based on a UAA. Such alternate uses may already be the HAU, given the Act’s goal of water quality that provides for the uses specified in section 101(a)(2) of the CWA wherever attainable. Given that any alteration of the subsequent behavior of states or authorized tribes with regard to designated use protection and documentation of use changes is speculative, indirect effects of this final rule on listed species and critical habitat, via this particular regulatory change’s influence on states and authorized tribes, are not reasonably certain to occur.

3. Triennial Reviews

In the final rule, EPA makes explicit that if states and authorized tribes choose not to adopt new or revised criteria during their triennial review for any parameters for which EPA has published new or updated criteria recommendations under CWA section 304(a), they must explain their decision when reporting the results of their triennial review to EPA under CWA section 303(c)(1) and 40 CFR § 131.20(c). This administrative change provides clarity, to

ensure that states and authorized tribes consider the latest science as reflected in the CWA section 304(a) criteria recommendations, and the public understands the decisions made.

The final rule clarifies EPA’s current position in 40 CFR 131.20(a) that during triennial reviews states and authorized tribes must review all applicable water quality standards, including water quality criteria. Although states and authorized tribes are not required to adopt EPA’s CWA section 304(a) criteria recommendations, if states and authorized tribes choose not to adopt new or revised water quality criteria for parameters for which EPA has published new or updated CWA section 304(a) criteria recommendations, they must explain their decision when reporting the results of their triennial review to EPA under CWA section 303(c)(1) and 40 CFR 131.20(c). This requirement applies regardless of whether new or updated CWA section 304(a) criteria recommendations are more stringent or less stringent than the state’s or authorized tribe’s applicable criteria. Any effect of this particular clarification on listed species or designated critical habitat could only occur through its incremental influence on the subsequent behavior of states and authorized tribes undergoing triennial reviews. Although some states and authorized tribes were insufficiently transparent in their prior consideration of 304(a) criteria recommendations, it is impossible to determine whether or how states or authorized tribes will bePage 4 of11

influenced to substantively revise their water quality standards as a result of EPA establishing new transparency requirements for the triennial review process. Even more speculative is the potential impact on listed species and designated critical habitat of any change in the frequency and nature of states’ WQS revisions. Thus, no indirect effect is reasonably certain to occur as a result of this part of the action.

The final rule also clarifies the “applicable water quality standards” that states and authorized tribes must review triennially. The rule supplements §131.20(a) by adding more detail regarding the scope of triennial review. This clarification was included in response to commenter confusion that through this rulemaking EPA intended to limit the applicability of its previous regulation to only require states and authorized tribes to triennially review water bodies with uses less than CWA section 101(a)(2) and criteria. This clarification makes no substantive change to the WQS program and, as such, will not have any effect, direct or indirect, on listed species and designated

critical habitat.

4. Antidegradation

The final rule revises EPA’s antidegradation requirements to enhance protection of high quality (Tier 2) waters and to promote consistency in implementation. The provisions require states and authorized tribes to follow a more structured process when making decisions about preserving high water quality. They also increase transparency and opportunities for public involvement, while preserving states’ and authorized tribes’ decision-making flexibility. The final rule addresses the following aspects of antidegradation policies: identification of high quality waters, analysis of alternatives, and antidegradation implementation methods.

The final rule reaffirms existing policy that states and authorized tribes may identify waters for Tier 2 protection on either a parameter-by-parameter or a water body-by-water body basis. In EPA’s 1998 Advanced Notice of Proposed Rulemaking at 63 FR 36759 (1998 ANPRM), EPA articulated that either approach, when properly implemented, is consistent with the CWA, and described advantages and disadvantages to both approaches.

The final rule includes two different administrative requirements regarding public involvement with antidegradation decisions. First that, where states and authorized tribes identify waters on a water body-by-water body basis, they must involve the public on decisions about when they will provide Tier 2 protection, and the factors considered in making such decisions. The objective of this provision is to increases transparency and accountability on states’ and authorized tribes’ water quality management decisions, consistent with the CWA and the WQS regulation’s emphasis on the public’s role in water quality protection and expectations of judicial review. Second, the final rule provides that states and authorized tribes must provide an opportunity for public involvement during the development and any subsequent revisions of antidegradation implementation methods, and to make the methods available to the public. These administrative requirements regarding public involvement make no substantive change to the actual implementation of protective antidegradation requirements and, as such, will not have any direct effect on listed species and designated critical habitat. Whether the resulting activity by states or authorized tribes of involving the public would have indirect effects is speculative. It is impossible to discern, with reasonably certainty, the potential impact of public involvement onPage 5 of11

influencing how a state or authorized tribe would provide Tier 2 protection for its waters as a result of the transparency requirements, beyond what it would have otherwise adopted. The impact of any such difference on listed species and designated critical habitat is still more speculative.

The final rule provides that if using a water body-by-water body approach, states and authorized tribes shall not exclude water bodies from Tier 2 protection solely because water quality does not exceed levels necessary to support all of the uses specified in CWA section 101(a)(2). (Although where water quality is better than necessary to support all of the uses specified in CWA section 101(a)(2), states and authorized tribes must still provide Tier 2 protection.) When considering whether to exclude waters from Tier 2 protection, states and authorized tribes must consider the overall quality of the water rather than whether water quality is better than necessary for individual chemical, physical, and biological parameters. To make a decision to exclude a water body from Tier 2 protection, states and authorized tribes must identify the factors considered. This change to the federal requirements has no direct impact on listed species or designated critical habitat. Whether these requirements regarding provision of Tier 2 protections by a state or authorized tribe would result in any effects on listed species or designated critical habitat is speculative. Any effect of this action on listed species or designated critical habitat could only occur through its incremental influence on the subsequent behavior of states and authorized tribes identifying waters for Tier 2 protection. It is not possible to predict, with any reasonable certainty, to what extent states and authorized tribes will identify additional water bodies for Tier 2 protection as a result of being prohibited from excluding water bodies from Tier 2 protection solely because water quality does not exceed levels necessary to support all of the uses specified in CWA section 101(a)(2). The incremental impact on listed species and designated critical habitat of any incremental increase in the identification of Tier 2 waters is still more speculative.

The final rule makes explicit that the analysis of alternatives is an integral part of a state’s or authorized tribe’s pre-existing requirement to find that degradation of high quality water is necessary. Any effect of this regulatory change on listed species or designated critical habitat could only occur through its incremental influence on the subsequent behavior of states and authorized tribes engaged in determining whether to authorize the degradation of high-quality waters. EPA concludes that it is not possible to predict, with any reasonable certainty, to whatextent this requirement, that states and authorized tribes consider alternatives as part of the prerequisite analysis, will affect states’ and authorized tribes’ ultimate finding that a lowering of water quality is necessary to accommodate important economic or social development in the area in which the waters are located. The incremental impact on listed species and designated critical habitat of any incremental decrease in the frequency of authorization of degradation of Tier 2 waters is still more speculative.

The final rule requires states’ and authorized tribes’ antidegradation policies (which are legally binding state and authorized tribal provisions subject to public participation) to be consistent with the new requirements at §131.12(a) related to identifying waters for Tier 2 protection and alternatives analysis. This will have no effect on listed species and designated critical habitat, for the same reason that the §131.12(a) requirements will themselves have no effect on listed species and designated critical habitat.Page 6 of11

The final rule at §131.12(b) maintains an existing requirement that states and authorized tribes develop antidegradation implementation methods that are at a minimum, consistent with the state or authorized tribe’s antidegradation policy, and also develop (but not necessarily adopt) methods for implementing that policy which are at a minimum, consistent with §131.12(a). Restating this previously existing requirement will have no effect, direct or indirect, on listed species and designated critical habitat. Even if the restatement of existing law had an effect, it would be impossible to discern, with reasonably certainty, the potential impact of the restatement. The impact of any such difference on listed species and designated critical habitat is still more speculative.

The final rule clarifies EPA’s existing legal authority (under 40 CFR 131.5(a) and CWA 303(c)(2)(A)) to review states’ and authorized tribes’ antidegradation policies and any adopted antidegradation implementation methods and to determine whether those policies and methods are consistent with § 131.12. This clarification brings about no substantive change to EPA’s authority to implement the WQS program nor how WQS will actually apply. It does not alter any obligations, requirements or authorities of the EPA, states or authorized tribes. Even if the rule were a change to EPA’s legal authority, it would not be reasonably certain to have any particular substantive influence on the behavior of any regulatory entity. For these reasons, there will be no impacts (direct or indirect) on any listed species or designated critical habitat.

5. WQS Variances

In the final rule, EPA establishes an explicit regulatory framework for the adoption of WQS variances that states and authorized tribes can use to implement adaptive management approaches to improve water quality. A longstanding tool of EPA, states and authorized tribes, WQS variances are customized WQS that identify the highest attainable condition applicable throughout the WQS variance term after the state or authorized tribe justifies the need for a WQS variance. EPA has previously implemented WQS variances under its regulatory authority at 131.10(g) pursuant to CWA sections 101(a) and 303(c)(2) by recognizing that states and authorized tribes may adopt time-limited WQS with a designated use and criterion (reflecting the highest attainable condition applicable throughout the term of the WQS variance), instead of pursuing a permanent revision of the designated use and associated criteria.

The final rule clarifies the regulatory status of WQS variances and ensures that WQS variances are used appropriately. The rule establishes explicit requirements for WQS variances consistent with the Agency’s longstanding policy objectives for the use of WQS variances, including: the information that states and authorized tribes must adopt as part of a variance, the requirements for supporting documentation that demonstrates why the WQS variance is needed and justifies the term and interim requirements, and the requirements that states and authorized tribes reevaluate WQS variances longer than five years on an established schedule with public involvement. In 1977, an Office of General Counsel legal decision (1977 OGC Decision) considered the practice of temporarily downgrading the WQS via a WQS variance 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 was acceptable under the EPA’s existing WQS regulatory provisions as long as the WQS variance is adopted consistent with the substantive andPage 7 of11

procedural requirements for permanently downgrading a designated use. (Decision of the General Counsel No. 58 (March 29, 1977)) In other words, a state or authorized tribe may change the WQS in a more targeted way rather than remove the WQS altogether. 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 § 131.10(g). 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.

The final rule explicitly allows states and authorized tribes to adopt WQS variances. The rule also provides a definition for WQS variance as a time-limited designated use and criterion for a specified pollutant(s)/parameter(s), permittee(s), and/or water body or waterbody segment(s) that reflects the highest attainable condition applicable throughout the specified time period. The rule further specifies that a WQS variance is a new or revised WQS subject to EPA review and approval or disapproval, requires a public process, and must be reviewed on a triennial basis. These revisions make no substantive change to the WQS variance program as EPA has implemented it per 40 CFR 131.10(g), and consistent with the 1998 ANPRM, the WQS Handbook, the 1977 OGC Decision and, most recently EPA’s “2013 Frequently Asked Questions: Discharger-specific Variances on a Broader Scale: Developing Credible Rationales for Variances that Apply to Multiple Dischargers” (MDV FAQs). The revisions provide more specific guidelines for what states and authorized tribes must submit to EPA for approval and how and when it must engage the public.

With regard to how WQS variances function in the context of the CWA programs, the final rule requires states and authorized tribes to retain the underlying designated use and criterion in their standards. The underlying use and criteria will apply: to all other permittees not addressed in the WQS variance, for identifying threatened and impaired waters under CWA section 303(d), and for establishing Total Maximum Daily Loads (TMDLs). The final rule also specifies that once EPA approves a WQS variance, it applies for purposes of developing NPDES permit limits and requirements under 301(b)(1)(C) and may be used when issuing certifications under section 401 of the Act. The final rule also reinforces existing permitting requirements, at 40 CFR 122.44(d)(1)(vii)(A), by specifying that any limitations and requirements necessary to implement the WQS variance must be included as enforceable conditions of the implementing NPDES permit. None of these provisions regarding how WQS variances function in the context of the CWA programs bring about a substantive change to the WQS variance program as it is currently implemented. See the preamble to the proposed rule at 78 FR 54518, 54533 for further exposition of EPA’s established views about how the various CWA program authorities align. Because these regulatory changes make no substantive change to the actual implementation of variances, they will not have any direct effect on listed species and designated critical habitat. Whether the resulting activity by states or authorized tribes with regard to implementation of variances will change at all is speculative. It is impossible to discern, with reasonably certainty, the potential impact of a better understanding of how variances function in the context of other CWA programs on how a state or authorized tribe would adopt and implement variances. The impact of any such difference on listed species and designated critical habitat is still more speculative.Page 8 of11

To provide public transparency, the final rule includes administrative requirements that variance issuing authorities specify the pollutant(s) or water quality parameter(s) and the water body/waterbody segment(s) to which the WQS variance applies. A state or authorized tribe must also identify the discharger(s) subject to a discharger-specific WQS variance. These administrative requirements aimed at enhancing transparency make no substantive change to the WQS program. The regulatory change is not substantive, but rather administrative. It does not alter any obligations, requirements or authorities of the EPA, states or authorized tribes. Because these particular regulatory changes are not reasonably certain to influence on the substantive behavior of any regulatory entity, there will be no impacts (direct or indirect) on any listed species or designated critical habitat.

This final rule makes explicit the requirement that states and authorized tribes provide documentation to justify why the WQS variance is needed and provides the specific requirements when adopting a WQS variance to a use specified in 101(a)(2) of the Act or a subcategory of such a use or when adopting a WQS variance to a non-101(a)(2) use. For WQS variances to a use specified in 101(a)(2) of the Act or a subcategory of such a use, EPA is clear that the justification could be made on the basis of one of the factors listed in § 131.10(g) or on the basis of a new restoration-related factor in §131.14(b)(2)(i)(A)(2). For WQS variances to non-101(a)(2) uses, the rule specifies that states and authorized tribes must document and submit a use and value demonstration consistent with § 131.10(a). EPA added this new factor for when states and authorized tribes wish to obtain a WQS variance because they expect a time-limited exceedance of a criterion when removing a dam or during significant wetlands, lake, or stream reconfiguration/restoration efforts. To ensure that states and authorized tribes use WQS variances that continue to make water quality progress, the rule does not allow a WQS variance to lower currently attained ambient water quality, except where a WQS variance will allow short-term lowering necessary for restoration activities consistent with § 131.14(b)(2)(i)(A)(2). With the exception of the new factor for WQS variances and its attendant requirement regarding currently attained water quality, the various requirements related to justifying the WQS variance do not make any substantive changes to EPA’s longstanding approach to WQS variances per the 1977 OGC Decision. As such, the regulatory changes regarding justification are not substantive, but rather administrative. They do not alter any obligations, requirements or authorities of the EPA, states or authorized tribes. Because these particular regulatory changes will have no predictable influence on the substantive decisions of any regulatory entity, there will be no impacts (direct or indirect) on any listed species or designated critical habitat.

To the extent that EPA’s new factor could impact resulting water quality and therefore listed species or critical habitat, it could only occur through the factor’s availability having an incremental influence on the adoption of WQS variances, and such influence is also not predictable or quantifiable. Thus EPA concludes that it is impossible to determine with any reasonable certainty whether or how the type and frequency of WQS variances issued in the future will be influenced by the availability of a new factor. The impact on listed species and designated critical habitat of any such substantive change in the type and frequency of WQS variance issuance is still more speculative. Thus, no indirect effect is reasonably certain to occur as a result of this part of EPA’s action.Page 9 of11

The final rule requires states and authorized tribes to include interim requirements reflecting the highest attainable condition in WQS variances as a quantifiable expression of one of several options listed at 131.14(b)(1)(ii) depending on whether the WQS variance applies to a specific discharger(s) or to a water body or waterbody segment. For discharger(s)-specific WQS variances, the rule allows states and authorized tribes to express the highest attainable condition as an interim criterion or as the highest attainable interim effluent condition. However, WQS variances applicable to a water body or waterbody segment must explicitly articulate the highest attainable condition as the highest attainable interim designated use and interim criterion. Where the state or authorized tribe cannot identify an additional feasible pollutant control technology, the highest attainable condition may be expressed as a quantifiable expression of the greatest pollutant reduction achievable along with optimization of currently installed pollutant control technologies and adoption and implementation of a Pollutant Minimization Program (PMP) (a structured set of activities to improve processes and pollutant controls that will prevent and reduce pollutant loadings). Although these various requirements related to highest attainable condition detail WQS variance expectations to a degree not previously articulated in rule by EPA, they are consistent with EPA’s longstanding approach under 40 CFR 131.6 and 131.10(g) per the 1977 OGC Decision, which is also captured in the MDV FAQs. To the extent that these more detailed requirements regarding highest attainable condition could impact resulting water quality, it could only occur through the requirements having an incremental influence on the subsequent adoption of WQS variances and such influence is also not predictable or quantifiable. The impact on listed species and designated critical habitat of any such substantive change in the type and frequency of WQS variance adoption is still more speculative. Thus, no indirect effect is reasonably certain to occur as a result of this part of EPA’s final rule.

Although the final rule does not specify a maximum WQS variance term, states and authorized tribes must still identify the WQS variance term and provide documentation demonstrating that the term is only as long as necessary to achieve the highest attainable condition. As noted, the final rule requires that states and authorized tribes must specify the term of any WQS variance to ensure that WQS variances are time-limited. To ensure that the WQS variance term is only as long as necessary to achieve the highest attainable condition and that water quality progress is achieved throughout the entire WQS variance term, the rule requires that states and authorized tribes justify the term of the variance on the basis of the same information and factors evaluated to justify the need for the WQS variance. States and authorized tribes must also describe the pollutant control activities, including those identified through a PMP, that the state or authorized tribe anticipates implementing throughout the WQS variance term to achieve the highest attainable condition. Although these various requirements are now detailed to a degree not previously articulated by EPA, they are consistent with EPA’s longstanding approach to variances per the 1997 OGC Decision and the 1998 ANPRM and serve as a standardized way for states and authorized tribes to justify the duration of the WQS variance. To the extent that these more detailed requirements could impact resulting water quality, it could only occur through the requirements having an incremental influence on the adoption of variances, and such influence is also not predictable or quantifiable. Thus, EPA concludes that it is impossible to determine with any reasonable certainty whether or how the type and frequency of WQS variances in the future will be influenced by the establishment of these requirements. The impact on listed species and designated critical habitat of any such substantive change in the type and frequency states and authorized tribes adopt WQS variances isPage 10 of11

still more speculative. Thus, no indirect effect is reasonably certain to occur as a result of this part of the final rule.

To ensure that a WQS variance reflects the highest attainable condition throughout the WQS variance term, states and authorized tribes must include a self-implementing provision specifying that the applicable interim WQS shall be either the highest attainable condition initially adopted, or for WQS variances longer than five years a higher attainable condition later identified during any reevaluation. States and authorized tribes must specify, in the WQS variance, the reevaluation frequency and how they plan to obtain public input on the

reevaluation. States and authorized tribes must submit the results of reevaluations to EPA within 30 days of completion. The rule also requires states and authorized tribes to adopt a provision specifying that the WQS variance will no longer be the applicable WQS for CWA purposes if they do not conduct the required reevaluation or do not submit the results of the reevaluation within 30 days of completion. EPA will use this information to determine whether to approve or disapprove the WQS variance submitted for review, based on the requirements in § 131.14. These various substantive and administrative requirements related to reevaluation of WQS variances, could impact resulting water quality, only to the extent they have an incremental influence on the subsequent behavior of states and authorized tribes adopting WQS variances. How states and authorized tribes will implement these periodic re-evaluation requirements is neither predictable nor quantifiable. Thus, EPA concludes that it is impossible to determine with any reasonable certainty whether or how the type and frequency of variances adopted in the future will be influenced by these requirements. The impact on listed species and designated critical habitat of any such substantive change on the type and frequency of WQS variances adoption is still more speculative. Thus, no indirect effect is reasonably certain to occur as a result of this part of the final rule.

To establish a WQS variance for a water body or waterbody segment (WQS waterbodyvariance) the final rule also requires states and authorized tribes identify and document costeffective and reasonable BMPs for nonpoint sources, and document whether and to what extent BMPs were implemented and the water quality progress achieved during the WQS variance term to justify a subsequent WQS waterbody variance. These clarifications regarding how WQS waterbody variances and the identification of BMPs make no substantive change to the WQS variance program currently implemented consistent with the 1977 OGC Memo and EPA’s regulation at 40 CFR 131.10(h)(2). The regulatory change regarding BMPs is not substantive, but rather administrative. It does not alter any obligations, requirements or authorities of the EPA, states or authorized tribes. Because these particular regulatory changes will have no influence on the current behavior of any regulatory entity, there will be no impacts (direct or indirect) on any listed species or designated critical habitat. To the extent that the clarification regarding BMP requirements for WQS waterbody variances and subsequent documentation actually would alter the level of protection otherwise afforded by states or authorized tribes, such outcome is also not predictable or quantifiable, especially given that states and authorized tribes must already consider BMPs under 40 CFR 131.10(h)(2). Given that any alteration of the subsequent behavior of states or authorized tribes with regard to this provision is speculative, indirect effects of the rule on listed species and critical habitat, via the rule’s influence on states and authorized tribes, are not reasonably certain to occur.Page 11 of11

EPA previously promulgated specific WQS variance procedures to authorize the use of WQS variances when EPA established federal WQS for Kansas (§ 131.34(c)) and Puerto Rico (§ 131.40(c)). To provide national consistency, the final rule reauthorizes the Regional Administrator to grant WQS variances in Kansas and Puerto Rico in accordance with the provisions of § 131.14. This administrative requirement aimed at providing national consistency makes no substantive change to the WQS program and, as such, will not have any effect, direct or indirect, on listed species or designated critical habitat.

6. Compliance Schedule Authorizing Provisions

EPA clarifies that a state or authorized tribe must adopt, and EPA must approve, a provision authorizing the use of permit compliance schedules prior to including schedules of compliance for water quality-based effluent limits (WQBELs) in NPDES permits. In 1990, EPA’s Administrator concluded that before a permitting authority can include a compliance schedule for a WQBEL in an NPDES permit, the state or authorized tribe must affirmatively authorize its use in its WQS or implementing regulations. In the Matter of Star-Kist Caribe, Inc. 3 EAD 172 (April 16, 1990).

The final rule provides that states’ and authorized tribes’ authorizing provisions must be consistent with the CWA and are WQS subject to EPA review and approval. By obtaining EPA approval of the authorizing provision as a WQS under CWA 303(c) so it is part of the state’s or authorized tribe’s applicable WQS, the state or authorized tribe ensures that a permitting authority can then legally issue compliance schedules for WQBELs in NPDES permits that are consistent with CWA section 301(b)(1)(C) and 122.44(d)(vii)(A). This regulatory change will have no direct effect on listed species and designated critical habitat. The rule is also not reasonably certain to have any indirect effect. The regulatory change is not substantive, but rather administrative. It does not alter any obligations, requirements or authorities of the EPA, states or authorized tribes. Because this particular regulatory change is not reasonably certain to influence the substantive behavior of EPA, states or authorized tribes with regard to implementation of the WQS program, there will be no impacts (direct or indirect) on any listed species or designated critical habitat.

Other Administrative Changes

This final rule includes a number of administrative changes (described in the “Other Changes” section of the preamble) to correct minor pre-existing errors and to ensure consistency throughout the WQS regulation. These administrative requirements make no substantive change to the WQS program and, as such, will not have any effect, direct or indirect, on listed species or designated critical habitat. EPA notes that in correcting these minor pre-existing errors, the Agency did not reexamine the substance of these regulatory provisions.