EPA Publication No. 820F12017 1 

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## CWA 303( C 

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F REQUENTLY 

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## 2012

DISCLAIMER

These F requently Asked Questions (FAQs) do not impose legally binding requirements on EPA, states, or the regulated community, nor do they confer legal rights or impose legal obligations upon any member of the public. The CWA provisions and EPA regulations described in this document contain leg ally binding requirements. These FAQs do not constitute a regulation, nor do they change or substitute for any CWA provision or EPA regulations.

The general description provided here may not apply to a particular situation based upon the

circumstances. Interested parties are free to raise questions and objections about the substance of these FAQs and the appropriateness of their application to a particular situation. EPA retains the discretion to adopt approaches on a case

- by

- case basis that differ fr om those described in these FAQs where appropriate. These FAQs are a living document and may be revised periodically without public notice. EPA welcomes public input on these FAQs at any time.

1. Why is EPA issuing these FAQs?

D etermining which provisio ns constitute new or revised water quality standards (WQS) that EPA has the authority and duty to approve or disapprove under the Clean Water Act ( CWA ) section 303(c)(3) has increasingly become an issue as state and tribal 1 water programs are becoming more integrated with implementation polic i es and processes

.

To date, EPA has evaluated each situation on a case

- by

- case basis. These FAQs consolidate EPA’s plain language interpretation (informed by the CWA, EPA’s implementing regulation s at 40 CFR part 131, and relevant case law) of what constitutes a new or revised WQS that the Agency has the CWA section 303(c)(3) authority and duty to approve or disapprove.

2. How is evaluating whether a provision is a new or revised WQS different from d etermining

w hether a s tate or tribe’s n ew or r evised WQS are a pprovable?

There are two decisions EPA must make before approving or disapproving a state or tribe ’s new or revised WQS . First, EPA must determine whether the provision constitutes a new or revised WQS
that EPA has the CWA section 303(c)(3) authority and duty t o approve or disapprove. If it does , EPA must then determine whether the provision is approvable. This FAQ document only addresses EPA’s position with regard to the first deci sion 2

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1 “Tribal” and “tribes” refers to tribes authorized for treatment in the same manner as a state (TAS) under s ection 518(e) of the Clean Water Act (CWA) for purposes of CWA section 303(c) water quality standards (WQS).

2 These FAQs in no way affect EPA’s authority to approve or disapprove a state or tribe’s continuing planning process (CPP) under CWA 303(e).EPA Publication No. 820F12017 2 3. What is the basis for the information in these FAQs?

EPA’s understanding of what constitutes a new or revised WQS u nder CWA section 303(c) (3) derives from the CWA itself, EPA’s implementing regulation s , and case law. The CWA requi r es EPA to approve or disapprove new or revised WQS and specifies that state WQS must consist of designated uses and criteria to protect such uses. In the 1987 amendments to the CWA, Congress recognized that antidegradation is a part of water quality standards (s ee section 303(d) (4)(B) ).

EPA’s regulation at 40 CFR § 131.3(i) provide s that WQS "are provisions of State or Federal law ”
that consist of designated uses and water quality criteria

. EPA’s regulation s at § 131.5 provide specificity as to what EPA’s revie w under section 303(c) of the Act involves, at § 131.6 the minimum requirements for WQS submissions, and at § 131.13 that general policies states choose to include in their WQS are subject to EPA review and approval. 40 CFR §§ 13 1.5(a)(5), 131.6(d), and 1 31.12
further re inforce that a ntidegradation requirements are WQS

.

In addition, case law relating to what constitutes a new or revised WQS has been established in ( 1) the Supreme Court’s 1994 decision in PUD No. 1 of Jefferson County v. Washington Dept of
Ecol ogy , 511 U.S.700 (1994), which acknowledg ed that antidegradation requirements are part of
WQS

, and ( 2) the U.S. Court of Appeals for the Eleven th C ircuit’s 2004 decision

, Florida Public Interest Research Group Citizen Lobby, Inc., et al. v. EPA , 386 F.3d 1070 (11 th Cir. 2004), and subsequent EPA action on the Florida Impaired Waters Rule (IWR). The Court’s decision in the
Florida IWR case established that EPA has a mandatory duty to approve or disapprove a new or revised WQS even if the state did no t submit such new or revised WQS to EPA for review . Thus

, EPA ’s position is that it s authority and duty to evaluate whether a provision is a new or revised WQS is not dependent upon whether the provision was submitted to EPA for review. In addition, in i ts decision following a 2004 remand in the IWR litigation

, EPA determined that specific water quality criteria provisions in the IWR were new or revised WQS because they were legally binding provisions that define, change, or establish magnitude, duration or frequency of water quality criteria. EPA’s current practice is to consider all the salient points from the CWA

, regulation s , and case law when
evalua ting whether a provision is a new or revised WQS

.

4

. What does EPA consider when evaluating whether a specific provision constitutes a new or
revised WQS ?

EPA considers four questions when evaluating whether a provision constitutes a new or revised
WQS

. If ALL four question s are answered ”yes

, ” then the provision would likely constitute a new or revised WQS that EPA has the authority and duty to approve or disapprove under CWA section 303(c)(3)

. If any of the four question s are answered “ no , ” then th e provision would likely not be a new or revised WQS that EPA has the authority and duty to approve or dis approve under CWA section 303(c) (3)

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1. Is it a legally binding provision adopted or established pursuant to state or tribal law ? This
consideration stems from the use of the terms “adopt

, ” “law

, ” “regulations”, and “promulgate” in CWA section 303( a )

- ( c )

, and from EPA's regulation s at 40 CFR 131.3(i)

, which specif y thatEPA Publication No. 820F12017 3 W QS "are provisions of state or f ederal law." 3 EPA considers documents incorporated by reference into state or tribal law to be legally binding provisions adopted or established pursuant to state or tribal law 4

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### AND

2. Does the provision address designated uses, water quality criteria (narrative or numeric) to protect designated uses , and/or antidegradation requirements for waters of the United States ? The CWA, EPA’s implementing regulation

, and case law have broadly established three core
components of WQS

- designated uses, water quality criteria, and antidegradation requirements. Therefore, this consideration explicitly specifies that for a provision to be a WQS, it must include or address at least one of these three core components.



### AND

3. Does the pro vision express or establish the desired condition (e.g.

, uses, criteria) or instream level of protection (e.g.

, antidegradation requirements) for waters of the United States immediately or mandate how it will be expressed or established for such waters in the future? This consideration recognizes that if a provision meets the above two considerations and

express es the desired condition or level of protection for waters of the United States , it may be

a new or revised WQS that EPA has the authority and duty to approve or disapprove under CWA

section 303(c)(3)

, regardless of whether that expression applies immediately or will be applied
in the future. EPA action on provisions that may not apply immediately will ensure that EPA is able to provide input as earl y as possible in the state ’s or tribe’s WQS development process

, thus enabling the states, tribes, and EPA to carry out their functions under the CWA in the most efficient, expedient manner possible

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### AND

4. Does the provision establish a new WQS or revise a n existing WQS ? While a provision may
meet the first three considerations , the EPA's authority and duty to review and approve or disapprove such provisions under section 303(c )(3) are limited to those WQS that are new or
revised. A provision that establishes a new 5 WQS or has the effect of chang ing a n existing WQS
would meet this consideration. In contrast, a provision that simply implements a WQS without revising it would not constitute a new or revised standard.

5. Does EPA consider general po licies under 40 CFR § 131.13 to be WQS?

EPA’s regulation at 40 CFR § 131.13 provides that states and tribes may, at their discretion, “include in their state standards, policies generally affecting their application and implementation, such as mixing zones , low flows and variances.” 40 CFR § 131.13 also states that “Such policies are subject to EPA review and approval.” EPA has the CWA section 303(c)(3) authority and duty to approve or disapprove general policies such as mixing zones as long as those policies themselves constitute new or revised WQS based on the four considerations above.

3 The se FAQs deal with what constitutes new or revised WQS adopted by states or authorized tribes. It does not discuss whether or how provisions of federal law may constitute WQS. If EPA promulgates federal WQS for state or tribal waters, EPA adheres to the sa me four considerations in promulgating such new or revised WQS.

4 A provision in a document incorporated by reference must meet all 4 considerations to be a new or revised WQS.

5 A provision that EPA has never approved as a WQS would be considered “new .” It must also meet the other three considerations to be a new or revised WQS.EPA Publication No. 820F12017 4 6. Does EPA have the authority and duty to approve or disapprove non

- substantive revisions to WQS ?

EPA considers non

- substantive edits to existing WQS to constitute new or revised WQS that EPA has the authority and duty to approve or disapprove under CWA section 303(c) (3)

. While such revisions do not substantively change the meaning or intent of the existing WQS

, EPA believes that it

is reasonable to treat such non

- substantive changes in this manner to ensure public transparency as to which provisions are effective for purposes of the CWA. EPA notes that the scope of its action in reviewing and approving or disapproving such non

- substantive changes would extend only as far as
the actual non

- substantive changes themselves

. In other words, EPA’s action on non

- substantive changes to previously approved WQS would not constitute a n action on the underlying previously approved WQS

. Any challenge to EPA’s prior approval of the underlying WQS would be subject to any applicable statute of limitations and prior judicial decisions.

7

. Does EPA have any CWA authority over provisions that do not constitute new or revised WQS ?

In cases w here the Agency believes that an existing state or tribal WQS (i.e., a provision that
meets the first three considerations but is not new or revised) is inconsistent with the CWA, or that the existing WQS lack what is necessary to be consistent with the CWA, the Administrator may determine "that a revised or new standard is necessary to meet the requirements" of the CWA
under CWA sec tion 303(c)(4)(B). An Administrator's determination triggers a duty on the part of EPA to propose and promulgate such WQS unless the state or tribe adopts and EPA approves WQS addressing EPA’s determination

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In addition, t he CWA and its regulations gran t EPA authority over state and tribal implementation of WQS through its oversight or implementation of the NPDES and 303(d)/TMDL

programs. F or example, revisions to NPDES s tate /tribal programs are subject to EPA approval under

40 C.F.R. § 123.62, and EPA may object to state /tribal draft or proposed NPDES permit s for point source discharges if the limits in those permits would not achieve applicable WQS

. Similarly, EPA may add waters to a state’s or tribe’s list of water quality

- limited waters if the state /tribe did not assess waters in a manner consistent with the applicable WQS.

State and tribal law may include provisions that do not meet the four considerations described in these FAQs, such as those guiding implementation of their CWA programs (e.g.

, NPDES or CWA section 303(d) assessment provisions). If s uch provisions do not meet the four conside rations, and therefore EPA does not approve or disapprove them under Section 303(c)(3), the status of such provisions would be determined under the applicable requirements of the other CWA programs the provisions are intended to implement

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