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[Federal Register: July 30, 2010 (Volume 75, Number 146)]
[Proposed Rules]               
[Page 44930-44932]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jy10-20]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2010-0606; FRL-9182-1]

 
Stakeholder Input; Revisions to Water Quality Standards 
Regulation

AGENCY: Environmental Protection Agency.

ACTION: Listening sessions.

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SUMMARY: The Environmental Protection Agency (EPA) is announcing its 
plans to initiate national rulemaking to make a limited set of targeted 
changes to EPA's water quality standards regulation. EPA expects to 
publish such proposed rule changes in the Federal Register in Summer 
2011. EPA's intent is to improve the regulation's effectiveness in 
helping to restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters. The purpose of this notice is to 
announce EPA's intent to hold two informal public ``listening 
sessions'' in August 2010. The sessions will allow EPA to inform the 
public about the rulemaking, and will offer an opportunity for the 
public to express views on the general direction of the rulemaking, 
including the six specific elements of the rulemaking.

DATES: The two public listening sessions will be held as audio 
teleconferences on August 24 and 26, 2010, from 1 to 2:30 p.m. EDT.

FOR FURTHER INFORMATION CONTACT: Thomas J. Gardner, EPA Headquarters, 
Office of Water, Office of Science and Technology, at 202-566-0386 or 
e-mail: gardner.thomas@epa.gov.
    In order to provide an adequate number of telephone lines for those 
wishing to attend EPA's sessions, interested individuals should 
register in advance following instructions on the Internet at http://www.epa.gov/waterscience/standards/rules/wqs. Although you may register 
at any time prior to the session of your choice, EPA prefers that you 
register at least three days in advance.
    The agenda and resource materials will be identical for the two 
sessions. You do not need to attend both sessions.
    If you do not have Internet access, please contact the person named 
in the FOR FURTHER INFORMATION CONTACT section above.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Public Listening Sessions

    EPA will hold two informal public listening sessions via audio 
teleconference in August 2010 to inform the public about the 
rulemaking, and to hear views from the public regarding possible 
changes to EPA's water quality standards regulation at 40 CFR part 131 
that are under consideration. The sessions will provide a review of 
EPA's current water quality standards regulation and a summary of the 
clarifications that EPA is considering. Clarifying questions and brief 
oral

[[Page 44931]]

comments (three minutes or less) will be accepted at the sessions, as 
time permits.

B. How can I get copies of this document and other related information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. EPA-HQ-OW-2010-0606. The official public 
docket is the collection of materials that is available for public 
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Although 
all documents in the docket are listed in an index, some information is 
not publicly available, i.e., CBI or other information whose disclosure 
is restricted by statute. Publicly available docket materials are 
available in hard copy at the EPA Docket Center Public Reading Room, 
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding 
legal holidays. The telephone number for the Public Reading Room is 
(202) 566-1744, and the telephone number for the Water Docket is (202) 
566-2426. The docket can also accessed electronically at EPA Dockets at 
http://www.epa.gov/edocket/. Once in the system, select ``search'', 
then key in the appropriate docket identification number.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    Electronic versions of this notice and other water quality 
standards documents are available at EPA's water quality standards Web 
site http://www.epa.gov/waterscience/standards.

II. Background

Statutory and Regulatory Overview

    Water quality standards serve as the foundation for the water 
quality-based approach to pollution control and are a fundamental 
component of watershed management. Water quality standards are 
provisions of state, tribal, or federal law that define the water 
quality goals of a water body, or segment thereof, by designating the 
use or uses to be made of the water body; establishing criteria based 
on sound science that are protective of applicable uses; and protecting 
water quality through antidegradation requirements. See 40 CFR part 
131. States and tribes adopt water quality standards to protect public 
health or welfare, enhance the quality of water, and serve the purposes 
of the Act. See Clean Water Act (CWA or Act) 303(c). ``Serve the 
purposes of the Act'' (as defined in sections 101(a)(2), and 303(c) of 
the CWA) means that water quality standards should: (1) Include 
provisions for restoring and maintaining chemical, physical, and 
biological integrity of state and tribal waters; (2) provide, wherever 
attainable, water quality for the protection and propagation of fish, 
shellfish, and wildlife and recreation in and on the water; and (3) 
consider the use and value of state and tribal waters for public water 
supplies, propagation of fish and wildlife, recreation, agricultural 
and industrial purposes, and navigation. See 40 CFR 131.2.
    The statutory basis for water quality standards and EPA's 
regulation is section 303(c) of the CWA. Section 303(c)(2) of the CWA 
directs states to consider the use and value of waters for specific 
purposes, including public water supply, propagation of fish and 
wildlife, recreational purposes, agricultural and industrial water 
supplies and other purposes including navigation. Section 303(c)(2) 
also requires that standards protect public health or welfare, enhance 
the quality of water and serve the purposes of the Act. CWA section 
303(c)(1) requires that states review their standards at least once 
every three years. CWA section 303(c)(3) establishes timelines for EPA 
review and approval or disapproval of new or revised standards, and CWA 
section 303(c)(4) specifies requirements regarding promulgation of 
federal water quality standards in cases where a new or revised 
standard is found by EPA not to be consistent with the CWA or in any 
case where the Administrator determines that a new or revised standard 
is necessary to meet the requirements of the CWA.
    EPA's Water Quality Standards regulation is at 40 CFR part 131. The 
regulation implements the requirements of section 303(c) of the CWA. 
Fundamentally, the regulation: (1) Defines when and how designated uses 
may be revised; (2) requires criteria to protect those uses and be 
based on sound science; (3) requires EPA and states to prevent the 
degradation of water quality, except under certain circumstances; (4) 
requires states/tribes to review their water quality standards at least 
every three years and engage the public in any revisions to water 
quality standards; and (5) specifies roles of states and EPA and 
provides administrative procedures for EPA's review and approval or 
disapproval of any new or revised state water quality standards.

III. Changes to EPA's Water Quality Standards Regulation Under 
Consideration

    EPA is planning to propose a limited set of targeted changes to its 
water quality standards regulation to improve its effectiveness in 
helping restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters. EPA expects to publish a proposed 
rule in the Federal Register in Summer 2011.
    The core requirements of the current regulation have been in place 
since 1983. These requirements have provided a solid foundation for 
water quality-based controls, including CWA section 303(d) assessments, 
listings, and Total Maximum Daily Loads (TMDLs), as well as discharge 
permits issued under the National Pollutant Discharge Elimination 
System (NPDES). The intent of the changes EPA is considering is to add 
or modify a limited number of provisions to address the specific areas 
described below.
    The following is a brief summary of the clarifications to the water 
quality standards regulation that EPA is considering.

A. Antidegradation Implementation Methods

    The current regulation specifies that states and authorized tribes 
must identify the methods to implement the antidegradation policies 
that they are required to adopt in their water quality standards. 40 
CFR 131.12(a). The regulation does not specify what the implementation 
methods must include, but only states that such methods must be, as the 
policies must be, ``consistent with'' 40 CFR 131.12(a). EPA is 
considering modifying the regulation to specify that antidegradation 
implementation methods must meet specific minimum requirements. 
Specifically, EPA is considering adding a subparagraph (b) to 40 CFR 
131.12 (which currently has a subparagraph (a) but not (b)) that would 
specify minimum elements to be included in state or authorized tribe 
antidegradation implementation methods. EPA is also considering 
requiring that antidegradation implementation methods be adopted into 
state and tribal water quality standards, and thus be subject to EPA 
review and approval under CWA section 303(c), rather than having them 
simply be identified. In the listening sessions, EPA will invite views 
from the public on these potential changes, including what the minimum 
requirements should include.

[[Page 44932]]

B. Administrator's ``Determination''

    The CWA provides that the Administrator may determine that a 
revised or new standard is necessary to meet the requirements of the 
CWA. Section 303(c)(4)(B). If such a determination is made, EPA must 
promptly propose a revised or new federal standard to augment or 
replace the state's or authorized tribe's water quality standards, and 
promulgate the proposed standard within 90 days of proposal. See CWA 
303(c)(4). Since this provision was enacted by Congress in 1972, there 
have been recurring instances of confusion or misunderstanding about 
what constitutes such a determination. EPA is considering clarifying in 
the water quality standards regulation that an Administrator's 
determination must be signed by the Administrator or his/her duly 
authorized designee, and must include a statement that the document 
constitutes a determination under section 303(c)(4)(B) of the CWA. In 
the listening sessions, EPA will invite views from the public on these 
changes.

C. Designated Uses

    Section 101(a)(2) of the Act establishes a goal, wherever 
attainable, of water quality that provides for the protection and 
propagation of fish, shellfish, and wildlife and recreation in and on 
the water. The water quality standards regulation requires that the 
state or authorized tribe perform a use attainability analysis (that 
is, a structured scientific assessment of factors affecting attainment 
of designated uses) and submit this assessment to EPA in order to 
remove certain designated uses, including any designated use that is 
specified as a national goal in section 101(a)(2) of the CWA. See 40 
CFR 131.10. The regulation does not, however, specify which uses, if 
any, must be adopted to replace the use that is being removed. EPA is 
considering clarifying that designated uses reflecting the CWA 
101(a)(2) goals of the CWA are presumed attainable unless otherwise 
demonstrated and that states and authorized tribes must designate such 
uses unless they have conducted a use attainability analysis to support 
a lesser designated use and EPA has approved that action. EPA is also 
considering clarifying that the highest attainable use(s) closest to 
the section 101(a)(2) goal must be adopted if a CWA 101(a)(2) goal use 
is unattainable. In the listening sessions, EPA will invite views from 
the public on these changes.

D. Variances

    The current regulation allows states and authorized tribes to adopt 
variances as general policies for applying and implementing their water 
quality standards. See 40 CFR 131.13. The regulation does not provide a 
definition of, a description of, or any requirements for the use of 
variances. EPA is considering establishing regulatory requirements for 
variances to ensure proper use of variances and reduce the possibility 
of inappropriate use. In the listening sessions, EPA will invite views 
from the public on these clarifications, and what the regulatory 
requirements should include.

E. Triennial Reviews

    The CWA and the current water quality standards regulation require 
states and authorized tribes to review their water quality standards at 
least once every three years, and modify standards or adopt new 
standards as appropriate. CWA 303(c); 40 CFR 131.20. EPA is considering 
revising the regulatory requirements to clarify that states and 
authorized tribes must solicit and consider public comments in 
determining the scope of each such triennial review. EPA is also 
considering establishing a new triennial review requirement that states 
and authorized tribes must evaluate whether their existing water 
quality criteria continue to be protective of designated uses, taking 
into consideration any new information, including EPA's most recent 
national recommended CWA 304(a) water quality criteria, that has become 
available since the state or tribal criteria were adopted or last 
revised. In the listening sessions, EPA will invite views from the 
public on these changes.

F. Updates To Reflect Court Decisions

    EPA is considering making three clarifications to the water quality 
standards regulation to codify the results of court decisions over the 
years.
    First, EPA is considering revising the definition of ``water 
quality standards'' in 40 CFR 131.3 to reflect the results of and EPA's 
actions on remand from Florida Public Interest Research Group Citizen 
Lobby, Inc., Save our Suwannee, Inc., et al. v. EPA, et al., 386 F.3d 
1070 (11th Cir. 2004) concerning Florida's Impaired Water Rule (IWR). 
That court decision and EPA's response to it more clearly define which 
of state or tribal provisions constitute water quality standards that 
need to be submitted to EPA for review and approval. EPA is considering 
revising 40 CFR part 131 to reflect these developments.
    Second, EPA is considering specifying that authorizing provisions 
for compliance schedules for implementing water quality-based effluent 
limits in NPDES permits must be adopted as part of a state's or tribe's 
water quality standards, and therefore be submitted to EPA for review 
and approval. See In the Matter of Star-Kist Caribe, Inc., 1990 WL 
324290 (EPA), 3 EAD 172 (April 16, 1990).
    Third, EPA is considering clarifying that states and authorized 
tribes must submit to EPA records of public participation that has 
occurred in reviewing and revising state or tribal water quality 
standards. These records would include public comments, and the state's 
or tribe's responses to the comments. This change would reflect the 
results of City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 
1996).
    In the listening sessions, EPA will invite views from the public on 
these changes.

IV. Other EPA Outreach

    EPA expects to conduct outreach with additional stakeholders as 
well as local, state, and tribal governments before proposing any 
revisions to the water quality standards regulation. This outreach 
includes discussions and consultation with federally-recognized Indian 
tribes, consistent with Executive Order 13175 (Tribal Consultation); 
consultation with representatives of elected officials of state and 
local government, consistent with Executive Order 13132 (Federalism); 
and consultation with state water quality program officials as co-
regulators. EPA will continue outreach efforts prior to finalizing any 
revisions.

    Dated: July 22, 2010.
Ephraim S. King,
Director, Office of Science and Technology.
[FR Doc. 2010-18557 Filed 7-29-10; 8:45 am]
BILLING CODE 6560-50-P
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