101914 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2018–0056; FRL 6322–03– 

OW] 

RIN 2040–AF79 

Water Quality Standards; 

Establishment of a Numeric Criterion 

for Selenium for the State of California 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The Environmental Protection 

Agency (the EPA or the Agency) is 

amending a Federal Clean Water Act 

(CWA) rule, the California Toxics Rule, 

to promulgate a final, revised statewide 

chronic freshwater selenium water 

quality criterion applicable to certain 

California waters to protect aquatic life 

and aquatic-dependent wildlife from 

exposure to toxic levels of selenium. 

This revised criterion builds upon the 

science underlying the EPA’s current 

national CWA section 304(a) 

recommended aquatic life freshwater 

criterion for selenium. 

DATES: This rule is effective on January 

16, 2025. The incorporation by reference 

of certain publications listed in the rule 

is approved by the Director of the 

Federal Register as of January 16, 2025. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OW–2018–0056. All 

documents in the docket are listed on 

the https://www.regulations.gov 

website. Although listed in the index, 

some information is not publicly 

available, e.g., confidential business 

information (CBI) or other information 

whose disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy. Publicly 

available docket materials are available 

electronically through 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Maria Letourneau, Office of Water, 

Standards and Health Protection 

Division (4305T), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue NW, Washington, DC 20460; 

telephone number: (202) 566–2700; 

email address: letourneau.maria@

epa.gov; or Diane Fleck, Water Division 

(WTR–2–1), Environmental Protection 

Agency Region 9, 75 Hawthorne Street, 

San Francisco, CA 94105; telephone 

number: (213) 244–1836; email address: 

fleck.diane@epa.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule is organized as follows: 

I. General Information 

A. Applicability 

B. The EPA’s Development of the Final 

Rule 

II. Background 

A. Statutory and Regulatory Authority 

B. Applicable Selenium Criteria in 

California 

C. California Toxics Rule and Endangered 

Species Act Consultation 

D. Litigation 

E. Selenium and Sources of Selenium 

III. Final Freshwater Chronic Selenium 

Criterion 

A. The EPA’s Approach 

B. Administrator’s Determination of 

Necessity 

C. Final Chronic Selenium Criterion for 

California’s Fresh Waters 

D. Implementation of the Final Chronic 

Selenium Criterion in California 

E. Incorporation by Reference 

IV. Endangered Species Act 

V. Applicability of the EPA-Promulgated 

Water Quality Standards 

VI. Conditions When Federal Standards 

Would Be Withdrawn 

VII. Alternative Regulatory Approaches 

VIII. Economic Analysis 

IX. Statutory and Executive Orders 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 14094 (Modernizing Regulatory 

Review) 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132 (Federalism) 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

I. National Technology Transfer and 

Advancement Act of 1995 

J. Executive Order 12898 (Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations) and Executive Order 14096 

(Revitalizing Our Nation’s Commitment 

to Environmental Justice for All) 

K. Congressional Review Act (CRA) 

I. General Information 

A. Applicability 

Federal water quality standards 

(WQS) promulgated by the EPA in this 

rule will be the applicable WQS for 

certain waters in California for Clean 

Water Act (CWA) purposes after the 

effective date of this rule. Specifically, 

the chronic freshwater selenium 

criterion in the final rule will apply to 

California waters in a manner consistent 

with the California Toxics Rule (CTR) 

and the EPA’s proposed rulemaking for 

this action (83 FR 64059, December 13, 

2018). The freshwater and saltwater 

aquatic life criteria listed in the CTR 

apply as follows: (1) the freshwater 

criteria apply at salinities of 1 part per 

thousand and below at locations where 

this occurs 95% or more of the time; (2) 

saltwater criteria apply at salinities of 

10 parts per thousand and above at 

locations where this occurs 95% or 

more of the time; and (3) the more 

stringent of the two apply at salinities 

between 1 and 10 parts per thousand. 

As a result, many estuarine waters will 

be covered by this rule. 

WQS serve as the basis for CWA 

programs, such as National Pollutant 

Discharge Elimination System (NPDES) 

permitting and identifying impaired 

waters under CWA section 303(d). 

Categories and entities that could 

potentially be affected by this rule 

include the following: 

Category Examples of potentially affected entities 

Industry ........................................... Industries discharging pollutants to certain waters of California. 

Municipalities ................................... Publicly owned treatment works or other facilities discharging pollutants to certain waters of California. 

Stormwater Management Districts .. Entities responsible for managing stormwater discharges to certain waters of California. 

Agriculture ....................................... Agricultural entities discharging to certain waters of California. 

This table is not exhaustive but, 

rather, it provides a guide that identifies 

entities that could be affected by this 

action. If you have questions regarding 

the effect of this action on a particular 

entity, please consult the person listed 

in the FOR FURTHER INFORMATION

CONTACT section. 

B. The EPA’s Development of the Final 

Rule 

On November 29, 2018, the 

Administrator of the EPA signed a 

proposed rulemaking to establish a 


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1The NTR is codified at 40 CFR 131.36. https:// 

www.ecfr.gov/current/title-40/chapter-I/subchapterD/part-131#131.36. 

2The CTR is codified at 40 CFR 131.38. https:// 

www.ecfr.gov/current/title-40/chapter-I/subchapterD/part-131/subpart-D/section-131.38. 

3The CTR Criteria Table at 40 CFR 131.38(b)(1) 

includes all water quality criteria previously 

promulgated in the NTR, so that readers can find 

all Federally promulgated water quality criteria for 

California in one place. All criteria previously 

promulgated in the NTR are footnoted as such in 

the CTR. 

selenium water quality criterion 

applicable to California that protects 

aquatic life and aquatic-dependent 

wildlife in certain waters of California. 

The proposal was published in the 

Federal Register at 83 FR 64059 on 

December 13, 2018. For the proposed 

rulemaking, the EPA provided a 60-day 

public comment period with a 45-day 

extension and held two public hearings 

on March 19 and March 20, 2019, to 

accept verbal public comments. By the 

end of the public comment period on 

March 28, 2019, the EPA received a total 

of 32 comments on a range of issues 

submitted by organizations and 

individuals to the docket for the rule 

and during the two public hearings. 

For the final rule, the EPA carefully 

considered the public comments and 

feedback the Agency received on the 

proposed rulemaking. In relevant 

sections of the preamble below, the EPA 

provides brief summaries of certain 

comments. Some comments addressed 

issues beyond the scope of this rule. For 

all the comments the EPA received and 

the EPA’s responses, see the EPA’s 

Response to Comments document in the 

public docket for this rule: Docket ID 

No. EPA–HQ–OW–2018–0056. 

II. Background 

A. Statutory and Regulatory Authority 

The CWA establishes the basic 

structure for regulating pollutant 

discharges from point sources into the 

waters of the United States. In the CWA, 

Congress established the national 

objective to restore and maintain the 

chemical, physical, and biological 

integrity of the Nation’s waters. The 

CWA also sets forth the interim goal of 

achieving water quality, wherever 

attainable, that provides for both: (1) the 

protection and propagation of fish, 

shellfish, and wildlife; and (2) 

recreation in and on the water (sections 

101(a) and 101(a)(2)). 33 U.S.C. 1251(a), 

(a)(2). To help achieve these goals, the 

CWA created two complementary 

structures for regulating discharges in 

CWA section 402 NPDES permits: first, 

technology-based effluent limitations 

(TBELs) that set a floor for the 

performance for categories of regulated 

dischargers; and second, water qualitybased effluent limitations (WQBELs) 

that are established where TBELs are 

insufficient to meet applicable WQS or 

site-specific water quality goals. See 33 

U.S.C. 1342(a). TBELs in NPDES 

permits are derived from secondary 

treatment standards (for publicly owned 

treatment works), effluent limitations 

guidelines (CWA sections 301 and 304, 

33 U.S.C. 1311 and 1314), new source 

performance standards (CWA section 

306, 33 U.S.C. 1316) promulgated by the 

EPA, and/or established on a case-bycase basis under section 402(a)(1) of the 

Act (to the extent that EPA-promulgated 

effluent limitations are inapplicable). If 

TBELs are not sufficient to achieve the 

WQS in the receiving water, the CWA 

(section 301(b)(1)(c), 33 U.S.C. 

1311(b)(1)(c)) and the EPA’s NPDES 

regulation, 40 CFR 122.44(d), require 

that the permit writer develop more 

stringent WQBELs. 

WQS are the foundation of the water 

quality-based pollution control 

programs required by the CWA. Such 

standards serve as a description of the 

desired water quality condition for 

particular waterbodies. In addition, 

WQS serve as the basis for several CWA 

programs, including: 

• WQBELs in NPDES permits under 

section 402, 33 U.S.C. 1342; 

• Waterbody assessments and 

establishment of total maximum daily 

loads (TMDLs) under section 303(d), 33 

U.S.C. 1313(d); 

• Certifications of Federal licenses 

and permits under section 401, 33 

U.S.C., 1341. 

CWA section 303(c) directs states to 

adopt WQS for their waters subject to 

the CWA. WQS consist of designated 

uses of the waters, water quality criteria 

to protect those uses, and an 

antidegradation policy to maintain 

water quality (CWA section 303(c)(2)(A) 

and (d)(4)(B)). The EPA’s regulation at 

40 CFR 131.11(a)(1) provides that 

‘‘[s]uch criteria must be based on sound 

scientific rationale and must contain 

sufficient parameters or constituents to 

protect the designated use [and] [f]or 

waters with multiple use designations, 

the criteria shall support the most 

sensitive use.’’ 

States are required to review 

applicable WQS at least once every 

three years and, if appropriate, revise or 

adopt new WQS (CWA section 303(c)(1) 

and 40 CFR 131.20). Any new or revised 

WQS must be submitted to the EPA for 

review and approval or disapproval 

(CWA section 303(c)(2)(A) and (c)(3) 

and 40 CFR 131.20 and 131.21). Under 

CWA section 303(c)(4)(B), the 

Administrator is authorized to 

determine that a new or revised 

standard is necessary to meet CWA 

requirements. 

Under CWA section 304(a), the EPA is 

required to periodically publish 

national water quality criteria 

recommendations for states to consider 

when adopting water quality criteria for 

particular pollutants to meet the CWA 

section 101(a)(2) goals. In establishing 

numeric criteria, states should adopt 

water quality criteria based on the EPA’s 

CWA section 304(a) criteria, section 

304(a) criteria modified to reflect sitespecific conditions, or other 

scientifically defensible methods (40 

CFR 131.11(b)(1)). CWA section 

303(c)(2)(B) requires states to adopt 

numeric criteria for all toxic pollutants 

listed pursuant to CWA section 

307(a)(1) for which the EPA has 

published CWA section 304(a) criteria, 

where the presence or discharge of those 

pollutants could reasonably be expected 

to interfere with maintaining designated 

uses. 

B. Applicable Selenium Criteria in 

California 

The EPA has promulgated selenium 

water quality criteria for various 

waterbodies in California. First, in 1992, 

the EPA promulgated selenium criteria 

for certain California waters as part of 

the Water Quality Standards; 

Establishment of Numeric Criteria for 

Priority Toxic Pollutants; States’ 

Compliance at 57 FR 60848, December 

22, 1992, (hereafter referred to as the 

National Toxics Rule or NTR),1 and then 

again in 2000, as part of the Water 

Quality Standards; Establishment of 

Numeric Criteria for Priority Toxic 

Pollutants for the State of California at 

65 FR 31681, May 18, 2000, (hereafter 

referred to as the California Toxics Rule 

or CTR).2 In each case, the EPA 

promulgated the EPA’s recommended 

aquatic life criteria values at the time. In 

addition to the NTR and CTR selenium 

criteria, California has also adopted sitespecific acute and chronic selenium 

criteria (California uses the term 

‘‘objectives’’ instead of criteria). The 

criteria that the EPA previously 

promulgated for California in the NTR,3

together with the criteria promulgated 

in the CTR and California’s site-specific 

objectives, established WQS for priority 

toxic pollutants for inland surface 

waters and enclosed bays and estuaries 

in California. 

For a full summary of the applicable 

selenium criteria covered by the NTR, 

the CTR, and California site-specific 

selenium objectives, please refer to the 

preamble of the EPA’s proposed 

rulemaking for this action, sections II.B 

and II.C (83 FR 64059, December 13, 

2018). For a discussion on the scope of 


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4Final Joint Biological Opinion dated March 24, 

2000, from the National Marine Fisheries Service, 

Long Beach, California, and the U.S. Fish and 

Wildlife Service, Sacramento, California, 

concerning EPA’s final rule for the Promulgation of 

Water Quality Standards: Establishment of Numeric 

Criteria for Priority Toxic Pollutants for the State of 

California (CTR). 

5The proposed freshwater acute selenium 

criterion in the CTR was as follows: The CMC = l/ 

[(f1/CMC1) + (f2/CMC2)] where f1 and f2 are the 

fractions of total selenium that are treated as 

selenite and selenate respectively, and f1 + f2 = 1. 

CMC1 and CMC2 are the CMCs for selenite and 

selenate, respectively, or 185.9 mg/L and 12.83 mg/ 

L, respectively. This criterion was in the total 

recoverable form. CMC is the continuous maximum 

concentration. 

6The final chronic criterion was based on the 

EPA’s 1987 national CWA section 304(a) 

recommended criterion. 

7Proposed California Toxics Rule, 62 FR 42160 

(August 5, 1997). 

8See the CTR preamble at section E.1., ‘‘EPA is 

using section 303(c)(4)(B) as the legal basis for 

today’s final rule.’’ 65 FR 31687 (May 18, 2000). 

9Emsley, John. October 2011. Nature’s Building 

Blocks: An A–Z Guide to the Elements, 2nd Edition. 

10Presser TS, Piper DZ, Bird KJ, Skorupa JP, 

Hamilton SJ, Detwiler Sj, Huebner MA. 2004. The 

Phosphoria Formation: a model for forecasting 

global selenium sources to the environment. In: JR 

Hein, editor. Life cycle of the phosphoria formation: 

From deposition to post-mining environment. New 

York (NY): Elsevier. P 299–319. See Figures 1 and 

2. 

11Scientific studies used in the development of 

this rulemaking can be found in this rule’s docket, 

California waters covered by this rule, 

please see section V. of this preamble. 

C. California Toxics Rule and 

Endangered Species Act Consultation 

As required by section 7 of the 

Endangered Species Act (ESA) (16 

U.S.C. 1531 et seq.), the EPA consulted 

with the U.S. Fish and Wildlife Service 

(FWS) and the U.S. National Marine 

Fisheries Service (NMFS) (collectively, 

the Services) concerning the EPA’s 

proposed and final CTR. The EPA 

initiated consultation with the Services 

in 1994. In March 2000, the Services 

issued a final Joint Biological Opinion. 

The final Joint Biological Opinion 4

recorded commitments by the EPA to: 

(1) withhold promulgation of (i.e., 

reserve) the EPA’s proposed acute 5

freshwater aquatic life criterion for 

selenium in the final CTR; (2) revise the 

national CWA section 304(a) 

recommended acute and chronic aquatic 

life criteria for selenium; and (3) later 

update the acute and chronic aquatic 

life criteria for California consistent 

with the revised national CWA section 

304(a) recommendations. As a result, in 

the May 2000 CTR, the EPA finalized 

the chronic freshwater selenium 

criterion 6 and the acute and chronic 

saltwater selenium criteria but did not 

finalize the acute freshwater selenium 

criterion. 

D. Litigation 

Section 303(c)(4)(B) of the CWA gives 

the EPA Administrator authority to 

promulgate water quality standards for 

a state where necessary to meet the 

requirements of CWA section 303. The 

EPA made an Administrator’s 

determination under section 

303(c)(4)(B) of the CWA, included in the 

1997 proposed 7 and 2000 final CTR, 

that numeric criteria are necessary in 

California to meet the requirements of 

section 303(c)(2)(B) to protect the State’s 

designated uses.8 In 2013, two 

organizations filed a complaint against 

the EPA in the United States District 

Court for the Northern District of 

California. The complaint was based in 

part on the fact that the EPA had 

previously determined, in the CTR, that 

selenium criteria were necessary to 

implement section 303(c)(2)(B) of the 

CWA (62 FR 42160, August 5, 1997) and 

the work to update the reserved 

freshwater acute selenium criterion 

from the 2000 CTR had not yet been 

completed. In 2014, the EPA entered 

into a consent decree to resolve these 

claims (Our Children’s Earth 

Foundation and Ecological Rights 

Foundation v. U.S. Environmental 

Protection Agency, et al., 13-cv-2857 

(N.D. Cal, August 22, 2014)). 

Under the terms of the consent 

decree, the EPA committed to proposing 

selenium criteria for California fresh 

waters covered by the original CTR to 

protect aquatic life and aquaticdependent wildlife by November 30, 

2018. On November 29, 2018, the EPA 

satisfied this commitment when the 

Administrator of the EPA signed the 

proposed rulemaking to establish a 

selenium water quality criterion 

applicable to California that protects 

aquatic life and aquatic-dependent 

wildlife in certain waters of California. 

The consent decree also required that 

the EPA request to initiation of any 

necessary ESA section 7(a)(2) 

consultation with the Services on the 

proposed selenium criteria no later than 

nine months after the date the EPA 

proposed the criteria. The EPA satisfied 

this commitment by initiating ESA 

consultation with the Services on the 

proposed selenium criterion on August 

12, 2019. 

Further, under the consent decree, the 

EPA is required to finalize its proposed 

selenium criteria within six months of 

the later of the following: (1) the date of 

the EPA’s conclusion (if any) that it will 

not seek ESA section 7(a)(2) 

consultation because some or all of the 

proposed selenium criteria have ‘‘no 

effect’’ on any listed ESA species or 

designated critical habitat; (2) the date 

of written concurrence from the 

Services with any EPA conclusion that 

some or all of the proposed selenium 

criteria are ‘‘not likely to adversely 

affect’’ listed ESA species or designated 

critical habitat; or (3) the date of the 

Services’ Biological Opinion(s) 

concluding any formal consultation on 

the proposed selenium criteria. 

E. Selenium and Sources of Selenium 

Selenium is a naturally occurring, but 

relatively rare, element present in 

sedimentary rocks and soils. It is also 

present in the atmosphere as methyl 

derivatives of selenium. There are 

around 40 known selenium-containing 

minerals, some of which can have as 

much as 30% selenium, but all are rare 

and generally occur together with 

sulfides of metals such as copper, zinc, 

and lead.9 The distribution of organicenriched sedimentary rocks, black 

shales, petroleum source rocks, ore 

deposits, phosphorites, and coals, in 

which selenium typically co-occurs, is 

well characterized in the United 

States.10 Two major anthropogenic (i.e., 

human-caused) activities can cause 

selenium to become mobilized and 

introduced into aquatic systems. The 

first is extracting metals, minerals, and 

fossil fuels; the second is irrigation of 

selenium-rich soils. Once inorganic 

selenium is converted into a 

bioavailable form (i.e., a form that can 

be absorbed into the body following 

skin contact, ingestion, or inhalation), it 

enters the food chain and can 

bioaccumulate (i.e., can be taken up and 

retained by an aquatic organism from 

any surrounding media, e.g., water, 

food, sediment). 

Elevated selenium levels above what 

is nutritionally required in fish and 

other wildlife inhibit normal growth 

and reduce reproductive success 

through effects that lower embryo 

survival, most notably teratogenesis 

(i.e., embryo/larval deformities) (see 

2021 Revision to: Final Aquatic Life 

Ambient Water Quality Criteria for 

Selenium—Freshwater 2016, US EPA, 

Office of Water, EPA 822–R–21–006, 

August 2021). The deformities 

associated with exposures to elevated 

selenium in fish may include skeletal, 

craniofacial, and fin deformities, and 

various forms of edema that result in 

mortality. Elevated selenium exposure 

in birds can reduce reproductive 

success including decreased fertility, 

reduced egg hatchability (embryo 

mortality), and increased incidence of 

deformities in embryos. 

Scientific studies 11 indicate that 

selenium toxicity to aquatic life and 


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as well as dockets EPA–HQ–OW–2004–0019 and 

EPA–HQ–OW–2015–0392. 

12 In 2021, the EPA identified that the following 

text was missing from the second sentence in 

footnote 4 in the selenium criterion table: ‘‘When 

selenium inputs are increasing’’ and issued an 

erratum. The EPA corrected footnote 4 to state: ‘‘4. 

Water column values are based on dissolved total 

selenium in water and are derived from fish tissue 

values via bioaccumulation modeling. When 

selenium inputs are increasing, water column 

values are the applicable criterion element in the 

absence of steady-state condition fish tissue data.’’ 

aquatic-dependent wildlife is driven by 

diet (i.e., the consumption of seleniumcontaminated prey) rather than by direct 

exposure to dissolved selenium in the 

water column. Unlike other 

bioaccumulative contaminants, such as 

mercury, the single largest step in 

selenium accumulation in aquatic 

environments occurs at the base of the 

food web when algae and other 

particulate material take up selenium 

from water. The vulnerability of a 

species to selenium toxicity is 

determined by a number of factors, in 

addition to the amount of contaminated 

prey consumed. Those factors include a 

species’ sensitivity to selenium, its 

population status, and the duration, 

timing, and life stage of exposure. In 

addition, the hydrologic conditions and 

water chemistry of a waterbody affect 

bioaccumulation; in general, slowmoving, calm waters or lentic waters 

enhance the production of bioavailable 

forms of selenium (selenite), while 

faster-moving waters or lotic waters 

limit selenium uptake by aquatic life 

and aquatic-dependent wildlife given 

the rapid movement and predominant 

form of selenium (selenate). The EPA 

considered these and other factors in 

determining the selenium criterion for 

California. 

III. Final Freshwater Chronic Selenium 

Criterion 

A. The EPA’s Approach 

In 2016, the EPA published a revised 

national CWA section 304(a) 

recommended chronic freshwater 

aquatic life criterion for selenium to 

better account for bioaccumulation 

through the food chain in different 

ecosystems, and published an erratum 

in 2021, 2021 Revision to: Final Aquatic 

Life Ambient Water Quality Criterion for 

Selenium—Freshwater 2016, US EPA, 

Office of Water, EPA 822–R–21–006, 

August 2021.12 For purposes of clarity 

in this preamble, all subsequent 

references to the EPA’s current national 

CWA section 304(a) recommended 

chronic freshwater criterion for 

selenium refers to its 2021 published 

version. The recommended chronic 

freshwater criterion is comprised of four 

criterion elements, two of which are fish 

tissue concentrations and two of which 

are water column concentrations. The 

recommended elements are: (1) a fish 

egg-ovary element of 15.1 milligram per 

kilogram (mg/kg) dry weight; (2) a fish 

whole-body element of 8.5 mg/kg dry 

weight or a muscle element of 11.3 mg/ 

kg dry weight; (3) a water column 

element of 3.1 mg/L in lotic aquatic 

systems and 1.5 mg/L in lentic aquatic 

systems; and (4) a water column 

intermittent exposure element derived 

from the chronic water column element 

to account for potential chronic effects 

from short-term exposures (one value 

for lentic and one value for lotic aquatic 

systems). 

As stated previously, on November 

29, 2018, the EPA Administrator signed 

the proposed rulemaking to establish a 

selenium water quality criterion that 

protects aquatic life and aquaticdependent wildlife in certain fresh 

waters of California. The EPA proposed 

its recommended 2016 CWA section 

304(a) selenium criterion for freshwater 

with two modifications to the criterion. 

First, the EPA proposed adding a bird 

tissue criterion element derived to 

protect aquatic-dependent wildlife to 

the EPA’s national CWA section 304(a) 

selenium criterion. Second, the EPA 

proposed replacing the EPA’s national 

CWA section 304(a) selenium monthly 

average exposure water column (lentic 

or lotic) criterion element (referred to as 

the default water column criterion 

element) with a performance-based 

approach (PBA) for translating a tissue 

criterion element into a corresponding 

water column criterion element on a 

site-specific basis and took comment on 

whether to keep the default water 

column criterion element, in addition to 

the PBA, in the final rule. 

In this rule, the EPA considered the 

methodology and information used to 

derive the current national CWA section 

304(a) recommended selenium criterion, 

additional information specific to 

aquatic-dependent wildlife in 

California, and the public comments 

and feedback the EPA received on the 

proposed rulemaking in order to ensure 

broad protection for both aquatic and 

aquatic-dependent species. The final 

freshwater chronic selenium criterion 

for certain waters in California adds a 

bird tissue criterion element to the 

national CWA section 304(a) selenium 

criterion, consistent with the proposed 

rulemaking, in addition to the PBA. The 

EPA also included the default water 

column criterion element from the 

EPA’s national CWA section 304(a) 

selenium criterion, in addition to the 

PBA in the final rule. The PBA will 

allow the State to develop a site-specific 

water column element to be used 

instead of the default water column 

criterion element. For a further 

discussion of the EPA’s final chronic 

freshwater selenium criterion and what 

the EPA considered in finalizing this 

rule, see section III.C of this preamble 

and also refer to the EPA’s Response to 

Comments document in the public 

docket for this rule. 

As mentioned previously, the chronic 

freshwater selenium criterion in this 

final rule will apply to California waters 

in a manner consistent with the CTR 

and the EPA’s proposed rulemaking for 

this action (83 FR 64059, December 13, 

2018). 

The promulgated criterion establishes 

levels of selenium that protect 

California’s aquatic life and aquaticdependent wildlife designated uses 

(California uses the term ‘‘beneficial 

uses’’ instead of designated uses) for 

certain waters of California consistent 

with California’s implementation of the 

CTR. California’s applicable designated 

(beneficial) uses for the protection of 

aquatic life and aquatic-dependent 

wildlife are listed in table 1 of this 

preamble. 

TABLE 1—APPLICABLE DESIGNATED (BENEFICIAL) USES FOR CALIFORNIA 13

Use Abbreviation Definition 

Warm Freshwater Habitat ......... WARM ............ Uses of water that support warm water ecosystems including, but not limited to, preservation 

or enhancement of aquatic habitats, vegetation, fish, or wildlife, including invertebrates. 

Cold Freshwater Habitat ........... COLD ............. Uses of water that support cold water ecosystems including, but not limited to, preservation 

or enhancement of aquatic habitats, vegetation, fish, or wildlife, including invertebrates. 

Migration of Aquatic Organisms MIGR .............. Uses of water that support habitats necessary for migration or other temporary activities by 

aquatic organisms, such as anadromous fish. 


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13Refer to document titled ‘‘Applicable 

Designated (Beneficial) Uses for California,’’ in the 

docket associated with this rulemaking, to find 

designated uses captured in the California Regional 

Water Quality Control Boards’ Water Quality 

Control Plans (i.e., Regional Boards’ Basin Plans). 

14A performance-based approach relies on the 

state or authorized Tribe adopting a process (i.e., a 

criterion derivation methodology, with associated 

implementation procedures) rather than a specific 

outcome (e.g., numeric criterion or concentration of 

a pollutant) in its water quality standards 

regulation. In instances where the EPA promulgates 

a water quality standard (including a performancebased approach) for a state or authorized Tribe, the 

EPA is held to the same policies, procedures, 

analyses, and public participation requirements for 

that water quality standard as the state or 

authorized Tribe. See 40 CFR 131.22(c). The 

concept of a performance-based approach was first 

described in the Federal Register document EPA 

Review and Approval of State and Tribal Water 

Quality Standards—Final Rule (65 FR 24641– 

24653; April 27, 2000). 

TABLE 1—APPLICABLE DESIGNATED (BENEFICIAL) USES FOR CALIFORNIA 13—Continued 

Use Abbreviation Definition 

Spawning, Reproduction, and/or 

Early Development.

SPWN ............. Uses of water that support high quality aquatic habitats suitable for reproduction and early 

development of fish. 

Estuarine Habitat ...................... EST ................ Uses of water that support estuarine ecosystems including, but not limited to, preservation or 

enhancement of estuarine habitats, vegetation, fish, shellfish, or wildlife (e.g., estuarine 

mammals, waterfowl, shorebirds). 

Wildlife Habitat .......................... WILD .............. Uses of water that support terrestrial ecosystems including, but not limited to, preservation 

or enhancement of terrestrial habitats, vegetation, wildlife (e.g., mammals, birds, reptiles, 

amphibians, invertebrates), or wildlife water and food sources. 

Rare, Threatened, or Endangered Species.RARE ............. Uses of water that support habitats necessary, at least in part, for the survival and successful maintenance of plant or animal species established under state or Federal law as rare, 

threatened or endangered. 

B. Administrator’s Determination of 

Necessity 

As previously noted, in the 1997 

proposed and 2000 final CTR, the EPA 

Administrator determined under CWA 

section 303(c)(4)(B) that selenium 

criteria were necessary in California. In 

the 1997 proposed CTR, the EPA 

proposed both acute and chronic 

freshwater selenium criteria. In the 2000 

final CTR, the EPA promulgated a 

chronic freshwater selenium criterion; 

withheld promulgation of (i.e., reserved) 

an acute freshwater selenium criterion; 

and committed to revising the national 

CWA section 304(a) recommended acute 

and chronic aquatic life criteria for 

selenium and later updating the acute 

and chronic aquatic life criteria for 

California consistent with the revised 

national CWA section 304(a) 

recommendations. The Services 

incorporated the EPA’s commitments as 

Terms and Conditions in the final Joint 

Biological Opinion for the CTR. 

In November 2018, the EPA proposed 

a revised chronic selenium criterion 

based on the EPA’s current national 

CWA section 304(a) recommended 

criterion for selenium, which only 

includes a chronic criterion. The EPA’s 

current national CWA section 304(a) 

recommendation does not include a 

separate acute criterion because 

selenium is bioaccumulative and 

toxicity primarily occurs through 

dietary exposure. Although selenium 

may cause acute toxicity at high 

concentrations, the most harmful effect 

on aquatic organisms is due to its 

bioaccumulative properties; these 

chronic effects occur at lower 

concentrations of selenium in aquatic 

organisms than acute effects. In 

addition, as discussed further in section 

III.C of this preamble, application of the 

intermittent exposure criterion element 

(that the EPA is promulgating as part of 

the chronic criterion) to single day, high 

exposure events will provide protection 

from the most important selenium 

toxicity effect, reproductive toxicity, by 

protecting against selenium 

bioaccumulation in the aquatic 

ecosystem resulting from short-term, 

high exposure events. Since the time of 

the EPA’s proposed rulemaking in 

November 2018, the EPA is not aware of 

any significant scientific updates to alter 

the scientific basis underlying the EPA’s 

current national CWA section 304(a) 

recommended freshwater chronic 

selenium criterion. As a result, the EPA 

is not including a separate freshwater 

acute selenium criterion. 

Accordingly, promulgation of the 

freshwater chronic selenium criterion in 

this rule completes the EPA’s action 

pursuant to the Administrator’s 

Determination as it pertains to selenium 

criteria, as provided in the 1997 and 

2000 preambles to the CTR. 

In addition, this promulgation 

satisfies the Services’ Term and 

Condition included in the final Joint 

Biological Opinion for the CTR to 

update the selenium criterion for 

California consistent with the current 

national CWA section 304(a) 

recommendations (see section II.C. of 

this preamble). For more information 

about the ESA consultation completed 

for this final rule, see section IV. of this 

preamble. 

C. Final Chronic Selenium Criterion for 

California’s Fresh Waters 

In this final rule, the EPA is 

promulgating its current national CWA 

section 304(a) recommended chronic 

selenium criterion for certain fresh 

waters in California (including the 

default water column criterion element), 

with the addition of a bird tissue 

criterion element and a performancebased approach (PBA) 14 for translating 

a tissue criterion element into a 

corresponding water column criterion 

element on a site-specific basis. In its 

proposed rulemaking, the EPA solicited 

comment on whether to replace the 

default water column criterion element 

from the Agency’s 2016 CWA section 

304(a) selenium criterion with the PBA, 

replace the PBA with the default water 

column criterion element from the 

Agency’s 2016 CWA section 304(a) 

selenium criterion, or include both. As 

discussed further in this section and in 

the EPA’s Response to Comments 

document in the public docket for this 

rule, the EPA is including both the 

default water column criterion element 

and the PBA in its promulgation of the 

chronic criterion; a site-specific water 

column value developed using the PBA 

may be used in place of the default 

(lentic or lotic) water column criterion 

element. 

The final freshwater chronic selenium 

criterion for California is depicted in 

table 2 of this preamble. 

In the proposed rulemaking, the EPA 

solicited comment on two potential 

criteria structures: (1) one criterion that 

protects both the applicable aquatic life 

and aquatic-dependent wildlife 

designated uses; and (2) two separate 

criteria with one intended to protect the 

applicable aquatic life designated uses 

and one intended to protect the 

applicable aquatic-dependent wildlife 

designated uses. Most commenters 

requested that the EPA keep the 

proposed option of one criterion. 


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After considering comments, the EPA 

is finalizing the rule as proposed, 

meaning that one criterion (with 

multiple criterion elements as shown in 

table 2 of this preamble) will be used to 

protect both aquatic life and aquaticdependent wildlife designated uses in 

the waters covered by this rule. The one 

criterion consists of the following 

criterion elements: fish egg-ovary tissue, 

fish muscle or whole-body tissue, bird 

egg tissue, default water column (lentic 

and lotic), intermittent exposure water 

column, and a PBA for translating the 

tissue criterion elements into 

corresponding water column criterion 

elements on a site-specific basis. 

The tissue criterion elements consist 

of (1) a fish egg-ovary criterion element 

of 15.1 mg/kg dry weight, (2) a fish 

whole-body criterion element of 8.5 mg/ 

kg dry weight or a fish muscle criterion 

element of 11.3 mg/kg dry weight, and 

(3) a bird egg criterion element of 11.2 

mg/kg dry weight. The fish egg-ovary 

tissue (from which all other fish tissue 

elements were derived) and bird egg 

tissue criterion elements were 

developed to protect aquatic and 

aquatic-dependent wildlife populations 

from impacts caused by selenium: they 

reflect biological uptake of selenium 

through diet, which is the predominant 

pathway for selenium toxicity, and are 

most predictive of the observed 

biological endpoint of concern, 

reproductive toxicity. 

The water column criterion elements 

consist of (1) the default water column 

criterion element for lentic waters, 1.5 

mg/L, or for lotic waters, 3.1 mg/L and (2) 

the intermittent exposure water column 

criterion element. In addition to the 

default water column criterion element, 

EPA is also promulgating the PBA 

Method for Translating Selenium Tissue 

Criterion Elements into Site-specific 

Water Column Criterion Elements for 

California, Version 2, December 2024, 

which is available in the docket for this 

rulemaking and incorporated by 

reference as part of this rule. 

The chronic selenium criterion 

applies to the entire aquatic community, 

including aquatic-dependent wildlife. 

Based on the analysis in the 

accompanying Technical Support 

Document (TSD) to this rule (FINAL 

Aquatic Life and Aquatic-Dependent 

Wildlife Selenium Water Quality 

Criterion for Freshwaters of California 

(December 2024)) and the EPA’s 

previous work (2021 Revision to: Final 

Aquatic Life Ambient Water Quality 

Criterion for Selenium—Freshwater 

2016, US EPA, Office of Water, EPA 

822–R–21–006, August 2021), as well as 

currently available data, fish and birds 

are considered the most sensitive 

aquatic and aquatic-dependent taxa to 

selenium effects, respectively. 

The available data indicate that 

applying the criterion in table 2 of this 

preamble would protect aquatic life and 

aquatic-dependent wildlife from the 

toxic effects of selenium, recognizing 

that the bird tissue criterion element is 

independently applicable from and 

equivalent to the fish tissue criterion 

elements; the fish egg-ovary criterion 

element supersedes all other fish tissue 

elements; the fish tissue criterion 

elements (egg-ovary, whole-body, and/ 

or muscle) supersede water column 

criterion elements for aquatic life when 

fish tissue is measured; and the bird 

tissue criterion element supersedes 

water column criterion elements for 

aquatic-dependent wildlife when bird 

egg tissue is measured. This hierarchy 

reflects the fact that fish and bird tissue 

concentrations provide the most robust 

and direct information on potential 

selenium effects in fish and birds. See 

section III.D Implementation of the 

Final Chronic Selenium Criterion in 

California of this preamble for the 

discussion regarding implementation of 

the final chronic selenium criterion and 

one exception to the hierarchy 

described above when selenium inputs 

are increasing. 

The EPA is promulgating the 

following chronic criterion in new 

paragraph (b)(1)(i) of 40 CFR 131.38. 

The EPA is also making revisions to 

footnote q in the criteria table in 

paragraph (b)(1) and clarifying edits 

regarding the applicability of this 

criterion in paragraphs (c)(3)(ii) and 

(iii). The EPA is not amending or 

revising the contents of the table in 

(b)(1) and language in 40 CFR 131.38, 

except as specified in the preceding two 

sentences. 


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Table 2: California Freshwater Selenium Ambient Chronic Water Quality Criterion 

for Protection of A uatic Life and A uatic-De endent Wildlife 

Instantaneous 

measurement7 

exceeded 

15.1 mg/kg dw 

Instantaneous 

measurement7 

Notto be 

exceeded 

8.5 mg/kg dw 

whole-body 

or 

11.3 mg/kg dw 

muscle 

(skinless, 

boneless filet) 

Instantaneous 

measurement7 

Not to be 

exceeded 

1. Fish tissue criterion elements are expressed as steady-state. 

1.5 μg/L in lentic 

aquatic systems 

3 .1 μg/L in lotic 

aquatic systems 

30 days 

Not more than 

once in three 

years on average 

WQCint = 

WQC30-day - Cbkgrnd (1 - f int) 

lint 

Number of days/month with an 

elevated concentration 

Not more than once in three years 

on average 

2. Fish egg-ovary supersedes any whole-body, muscle, or water column criterion elements for aquatic life when fish egg-ovary are 

measured, except as noted in footnote 4. Bird egg supersedes water column criterion elements for aquatic-dependent wildlife when 

bird eggs are measured, except as noted in footnote 4. The bird tissue criterion element is independently applicable from and 

equivalent to the fish tissue criterion elements. 

3. Fish whole-body or muscle tissue supersedes the water column criterion elements when both fish tissue and water concentrations 

are measured, except as noted in footnote 4. 

4. Water column criterion elements are based on dissolved total selenium in water and are derived from fish tissue and bird tissue 

criterion elements via bioaccumulation modeling. When selenium inputs are increasing, water column criterion elements are the 

applicable criterion elements in the absence of steady-state condition fish tissue or bird tissue data. 

5. The water column criterion element, which applies independently to the respective aquatic life and aquatic-dependent wildlife uses, 

is applicable for all CW A purposes and consists of a water column value of 1.5 μg/L in lentic aquatic systems and 3 .1 μg/L in lotic 

aquatic systems unless or until a site-specific water column criterion element is derived for a particular waterbody following the 

methodology described in Method for Translating Selenium Tissue Criterion Elements into Site-specific Water Column Criterion 

Elements for California, Version 2, December 2024. This publication is incorporated by reference into this section with the 

approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available at 

EPA, OW Docket, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC, 20004; phone: (202) 566-2426; website: 

https://www.epa.gov/wqs-tech/water-quality-standards-establishment-numeric-criterion-selenium-fresh-waters-california. It is also 

available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this 

material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email fr.inspection@nara.gov. 

6. Where WQC30-day is the applicable water column monthly criterion element, Cbkgmd is the average background selenium 

concentration, and fint is the fraction of any 30-day period during which elevated selenium concentrations occur, with fint assigned a 

value 2':0.033 (corresponding to 1 day). 

7. Fish tissue and bird tissue data provide instantaneous point measurements that reflect integrative accumulation of selenium over 

time and space in bird or fish population(s) at a given site. 
Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 101921 

15 82 FR 25628, April 27, 2000. 

Performance-Based Approach (PBA) for 

Translating Tissue Criterion Elements to 

Site-Specific Water Column Criterion 

Elements 

As part of the criterion depicted in 

table 2 of this preamble, the EPA is 

incorporating by reference the PBA, 

Method for Translating Selenium Tissue 

Criterion Elements into Site-specific 

Water Column Criterion Elements for 

California, Version 2, December 2024. 

The PBA is a methodology that the State 

may use to translate the bird and fish 

tissue criterion elements into water 

column criterion elements on a sitespecific basis. 

If the State chooses to use the PBA, 

the State will coordinate with the EPA 

at the beginning of the process. The PBA 

is itself incorporated by reference into 

this rule and thus is part of the 

applicable WQS that the EPA is 

promulgating. As such, California is not 

required to adopt and submit the 

outcomes that result from using the PBA 

(i.e., water column criterion elements 

for site-specific waterbodies) to the EPA 

for CWA section 303(c) review. In this 

rule, the EPA is promulgating the PBA 

as a scientifically defensible 

methodology that is sufficiently detailed 

and has suitable safeguards to ensure 

predictable, repeatable outcomes that 

will protect California’s applicable 

beneficial uses. If California chooses to 

use the PBA for a particular site, each 

resulting site-specific water column 

criterion element would be applicable 

for CWA purposes, without the need for 

separate EPA approval under CWA 

section 303(c). 

The PBA provides two methodologies 

for deriving a site-specific water column 

criterion element: (1) the mechanistic 

modeling approach; and (2) the 

empirical bioaccumulation factor (BAF) 

approach: 

(1) The mechanistic modeling 

approach uses scientific knowledge of 

the physical and chemical processes 

underlying bioaccumulation to establish 

a relationship between the 

concentrations of selenium in the water 

column and the concentration of 

selenium in the tissue of aquatic and 

aquatic-dependent organisms. This 

approach enables formulation of sitespecific models of trophic transfer of 

selenium through aquatic food webs and 

translation of the tissue elements into an 

equivalent site-specific water column 

element. It is also the approach the EPA 

used to develop the national CWA 

section 304(a) recommended selenium 

water column criterion elements. 

(2) The empirical BAF approach 

establishes a site-specific relationship 

between water column selenium 

concentrations and fish or bird tissue 

selenium concentrations by measuring 

both directly and using the relationship 

between the concentrations to 

determine a site-specific water column 

criterion element. 

As stated in footnote 5 of criterion, 

the default water column criterion 

element, consisting of a water column 

value of 1.5 mg/L dissolved total 

selenium in lentic aquatic systems and 

3.1 mg/L dissolved total selenium in 

lotic aquatic systems, applies for all 

CWA purposes according to the 

hierarchy of the criterion, unless a sitespecific water column criterion element 

is derived following the PBA. 

If California decides to use the PBA to 

translate the applicable fish tissue or 

bird tissue criterion elements into sitespecific water column criterion 

elements, those translated values would 

be applicable for, and protective of, the 

use for which the translation was 

completed. For example, if California 

used the PBA to translate the fish tissue 

criterion element into a water column 

criterion element, that water column 

criterion element would protect aquatic 

life; if California used the PBA to 

translate the bird tissue criterion 

element into a water column criterion 

element, that water column criterion 

element would protect aquaticdependent wildlife. 

The EPA looks forward to 

coordinating and working with the State 

to ensure consistency with the PBA 

methodology before implementation in 

other CWA programs. Importantly, for 

public transparency, the EPA 

recommends California maintain a list 

of the resulting site-specific water 

column criterion elements. The EPA 

also recommends that California make 

its analyses and the underlying data 

used for each site-specific water column 

derivation available on a publicly 

accessible State website. 

As with other criteria, the State 

maintains discretion to adopt new or 

revised site-specific criteria and submit 

them to the EPA in accordance with 

CWA section 303(c) and EPA’s 

implementing regulations at 40 CFR part 

131. This could arise in the context of 

an entirely different criterion, an 

alternative water column criterion 

element, or an alternative tissue to water 

column derivation methodology. Please 

refer to section VI, Conditions When 

Federal Standards Would Be Withdrawn 

of this preamble for a discussion 

regarding the applicability of Californiaadopted, EPA-approved WQS in light of 

this Federal promulgation. 

If the State chooses not to follow the 

PBA as prescribed, the State would need 

to adopt and submit site-specific water 

column criterion elements to the EPA 

for CWA section 303(c) review and 

approval in accordance with the 

procedures at 40 CFR part 131 in order 

to rely on them as applicable WQS for 

other CWA programs such as the TMDL 

and NPDES permitting programs. This is 

because the new value would not derive 

from or comply with applicable WQS 

(see 40 CFR 122.44(d)).15

In the proposed rulemaking, the EPA 

took comment on whether the national 

CWA section 304(a) recommended 

water column criterion element (lentic 

and lotic) should be included as a 

default, in addition to or in place of the 

PBA, in the final selenium criterion. 

Most commenters supported including 

the PBA in the final rule, and some 

requested that the default water column 

criterion element not be included in the 

final rule. However, several comments 

highlighted implementation concerns, 

such as gaps in protection before the 

PBA can be used to develop site-specific 

water column criterion elements, 

anticipated burdens on industry to rely 

on the PBA to derive site-specific water 

column criterion elements, and new 

discharger considerations that could be 

mitigated by including the default water 

column criterion element, in addition to 

the PBA. 

In consideration of these public 

comments and to maintain consistency 

with the EPA’s latest scientific 

recommendation to ensure protection of 

aquatic life and aquatic-dependent 

wildlife from exposure to toxic levels of 

selenium, as articulated in the EPA’s 

current national CWA section 304(a) 

recommended freshwater aquatic life 

criterion for selenium and the TSD 

accompanying this final rule, the EPA 

decided to include the default water 

column criterion element as part of the 

California selenium criterion for the 

final rule, in addition to the PBA. This 

will ensure protection from excessive 

selenium in certain waters in California 

when tissue data are unavailable. 

Specifically, water column data and 

criterion elements can be applied for 

CWA implementation purposes when 

tissue data are unavailable. When all of 

the criterion elements are applied 

together, the tissue and water column 

criterion elements protect aquatic life 

and aquatic-dependent wildlife from the 

chronic effects of exposure to selenium 

in waterbodies. This will also help 

ensure that California is able to 

implement the Federally promulgated 

selenium criterion as soon as it is 

effective under the CWA. 

The EPA also specifically solicited 

comment on whether it would be 


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101922 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

appropriate to include a method for a 

larger scale (e.g., ecoregional or statewide) water column translation from 

fish or bird egg tissue in the PBA, and 

if so, what methods are available and 

appropriate for this large-scale 

translation. Most commenters agreed 

that a larger-scale translation method 

was not appropriate, finding the PBA 

was more appropriate and scientifically 

defensible on a waterbody site-specific 

scale, given the highly localized 

conditions that affect selenium 

bioaccumulation. After taking into 

consideration all comments, EPA 

decided to keep the allowable 

application of the PBA limited to an 

individual waterbody or waterbody 

segment. Developing a water column 

translation for a larger geographic area 

involves additional considerations that 

are not included in the PBA. These 

additional considerations are likely 

unique to the geographic area and 

would be better addressed through an 

individual site-specific criteria process 

by the State. California retains the 

ability to develop a site-specific 

criterion for a larger site, such as a 

watershed or ecoregion. Any such stateadopted, site-specific criterion must be 

submitted to the EPA for review and 

approval pursuant to CWA section 

303(c) and the EPA’s implementing 

regulations at 40 CFR part 131 to be 

effective for CWA purposes. 

The EPA intends for the PBA to be 

severable from the remainder of the 

final selenium criterion in this rule. As 

explained above, the EPA has chosen to 

promulgate the PBA as part of the 

criterion, providing one means for the 

State to translate the bird and fish tissue 

criterion elements into water column 

criterion elements on a site-specific 

basis. The EPA included the PBA in this 

final rule to provide an efficient means 

to account for site-specific information 

to inform the applicable water column 

criterion element. The removal of the 

PBA would not change how the overall 

rule functions. The final selenium 

criterion protects aquatic life and 

aquatic-dependent wildlife through the 

applicable tissue and water column 

criterion elements for all the specified 

waters in California. In contrast, as 

discussed above, California’s use of the 

PBA in the final rule is optional and not 

mandatory. As such, the tissue and 

water column criterion elements apply 

independently of the PBA and function 

separately to meet the requirements of 

CWA section 303(c). In the absence of 

the PBA, the other criterion elements of 

the final selenium criterion will still 

protect the designated uses for aquatic 

life and aquatic-dependent wildlife in 

accordance with CWA section 303(c) 

and the EPA’s implementing 

regulations. In other words, the final 

selenium criterion, with the criterion 

elements absent the PBA, still functions 

as the applicable criterion to protect the 

designated uses. Further, California 

could pursue other options in lieu of 

using the PBA to adopt site-specific 

selenium criteria. For example, as with 

other criteria, the State maintains 

discretion to adopt new or revised sitespecific criteria and submit them to the 

EPA in accordance with CWA section 

303(c) and the EPA’s implementing 

regulations at 40 CFR part 131. 

Accordingly, the EPA intends this 

portion of the rule to be severable from 

the remainder of the rule. 

Intermittent Exposure Criterion Element 

Although selenium may cause acute 

toxicity at high concentrations (i.e., 

toxicity from a brief but highly elevated 

concentration of selenium in the water), 

chronic dietary exposure poses the 

highest risk to aquatic life and aquaticdependent wildlife. Chronic toxicity 

occurs primarily through maternal 

transfer of selenium to eggs and causes 

subsequent reproductive effects, such as 

larval and embryo structural deformity, 

edema, and mortality. Because chronic 

effects of selenium are observed at lower 

concentrations than acute effects, the 

chronic criterion is expected to protect 

aquatic and aquatic-dependent 

communities from any potential acute 

effects of selenium. However, some high 

concentration, short-term exposures 

could be detrimental by causing 

significant long-term, residual, 

bioaccumulative effects (i.e., by the 

introduction of elevated selenium load 

into the system). Therefore, the EPA is 

also promulgating the intermittent 

exposure criterion element within the 

chronic criterion to prevent long-term 

detrimental effects from these high 

concentration, short-term exposures. 

The EPA’s intermittent exposure 

criterion element is derived 

mathematically from either the default 

water column criterion element or the 

performance-based, site-specific 

monthly water column criterion 

element, using the equation shown in 

Table 2 of this preamble. The equation 

expresses the intermittent exposure 

water column criterion element in terms 

of the 30-day default water column 

criterion element, as appropriate, while 

accounting for the fraction in days of 

any 30-day period the intermittent 

spikes occur and for the background 

concentration occurring during the 

remaining time. The intermittent 

exposure criterion element calculation 

is consistent with the EPA’s current 

national CWA section 304(a) 

recommended chronic freshwater 

aquatic life criterion for selenium. It is 

meant to be used in situations where a 

noncontinuous discharge containing 

selenium is present in the waterbody of 

interest. 

D. Implementation of the Final Chronic 

Selenium Criterion in California 

Identification of Impaired Waters and 

TMDL Development 

WQS provide the basis for identifying 

impaired waters (waters not attaining 

the applicable WQS) and developing 

TMDLs pursuant to CWA section 

303(d). With the promulgation of this 

multi-element criterion, all criterion 

elements will be available for 

assessment purposes. If multiple types 

of data are collected at a site, they will 

be used for implementation purposes 

according to the hierarchical structure 

of the selenium criterion. For purposes 

of assessing attainment of the WQS 

based on the criterion and as mentioned 

in section III.C of this preamble, the bird 

tissue criterion element is 

independently applicable from the fish 

tissue criterion elements. Specifically, if 

the bird tissue criterion element is 

exceeded, the criterion is not being 

attained for the applicable aquaticdependent wildlife designated uses, and 

if the fish tissue criterion element is 

exceeded (using the hierarchy for fish 

tissue), the criterion is not being 

attained for the applicable aquatic life 

designated uses. For aquatic-dependent 

wildlife, the bird egg tissue element 

supersedes the water column elements 

if both are measured. For aquatic life, 

the fish egg-ovary tissue criterion 

element supersedes the muscle or 

whole-body criterion elements and all 

fish tissue criterion elements supersede 

water column criterion elements. 

However, there is one exception to this 

hierarchy. When selenium is increasing 

due to new inputs, footnote 4 of the 

criterion specifies that the water column 

criterion elements must be used when 

steady-state fish or bird tissue data are 

not available for each respective use, as 

discussed further below. Also, the 

default water column criterion element 

applies for CWA purposes for each 

respective designated use unless sitespecific water column criterion 

elements are derived following the 

methodology described in the PBA, or 

site-specific water column criterion 

elements that do not follow the 

methodology prescribed by the PBA are 

adopted by California and approved by 

the EPA pursuant to CWA section 303(c) 

and the EPA’s implementing 

regulations. 


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16USEPA. 2021. 2021 Revision to: Aquatic Life 

Ambient Water Quality Criterion for Selenium– 

Freshwater 2016. EPA 822–R–21–006. U.S. 

Environmental Protection Agency, Office of Water, 

Washington, DC. https://www.epa.gov/system/files/ 

documents/2021-08/selenium-freshwater2016-2021- 

revision.pdf. 

17USEPA. 2024. Technical Support for Adopting 

and Implementing the EPA’s 2016 Selenium 

Criterion in Water Quality Standards. EPA–820–R– 

24–001. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. https://

www.epa.gov/system/files/documents/2024-03/ 

selenium-adopting-tsd.pdf. 

Selenium concentrations in fish and 

bird tissue are primarily a result of 

selenium bioaccumulation via dietary 

exposure. In both the EPA’s current 

national CWA section 304(a) 

recommended aquatic life criterion for 

selenium and this California selenium 

rulemaking, steady-state refers to 

conditions where sufficient time has 

passed after the introduction of a new 

or increased input of selenium into a 

waterbody or watershed of a waterbody 

such that fish tissue concentrations of 

selenium are no longer increasing in the 

long-term average or multi-year average. 

For a tissue measurement to be 

meaningful, the water from which the 

sample is taken should not be 

experiencing or have recently 

experienced new inputs of selenium. 

When there are new selenium inputs to 

a waterbody, fish tissue data and bird 

tissue data may not fully represent the 

potential effects on the aquatic 

ecosystem, making the use of the water 

column criterion elements more 

appropriate to protect the entire aquatic 

ecosystem. New inputs are defined as 

new anthropogenic activities resulting 

in the release of selenium into a lentic 

or lotic aquatic system.16 These ‘‘new 

inputs’’ are both new and increased 

inputs of selenium and are referring to 

the release of a substantial amount of 

additional selenium from either 

anthropogenic point or nonpoint 

sources into a waterbody or watershed. 

New inputs do not refer to seasonal 

variability of selenium that occurs 

naturally within a system (e.g., spring 

run-off events or precipitation-driven 

pulses) or de minimis inputs to a 

watershed or waterbody.17

The water column criterion elements 

take precedence over the fish tissue 

criterion elements and the bird egg 

tissue criterion element until tissue data 

have returned to a steady-state 

condition after a new input of selenium. 

In the interim, in systems with new 

inputs, the EPA recommends California 

sample tissue and water and use sitespecific data to gain a better 

understanding of the selenium 

bioaccumulation dynamics in a 

receiving water and to determine if and 

when steady-state conditions have been 

reached. 

California has flexibility to determine 

how to evaluate individual and 

composite samples for each taxon. 

Tissue data provide instantaneous point 

measurements that reflect integrative 

accumulation of selenium over time and 

space in fish or birds at a given site. 

This final selenium criterion provides 

California with flexibility in how the 

State can interpret a discrete bird egg or 

fish tissue sample to represent a given 

species’ population at a site. Generally, 

fish and bird egg tissue samples 

collected to calculate average tissue 

concentrations (often in composites) for 

a species at a site are collected during 

one sampling event, or over a short 

interval due to logistical constraints and 

the cost for obtaining samples. The State 

should clearly describe its decisionmaking process in its assessment 

methodology. 

NPDES Permitting 

Under the CWA, WQS are used to 

derive WQBELs in NPDES permits for 

point source discharges, thereby 

limiting the amount of pollutants that 

may be discharged into a waterbody to 

attain and maintain its designated uses. 

The EPA is promulgating the default 

water column criterion element and the 

option for California to use the PBA to 

translate tissue criterion elements into 

site-specific water column criterion 

elements, which can be used to facilitate 

implementation, e.g., NPDES 

permitting. However, these water 

column criterion elements would not 

prevent California from also using the 

tissue criterion elements for monitoring 

and regulating pollutant discharges 

where appropriate. 

As with assessments, all criterion 

elements are available for NPDES 

permitting. When multiple data types 

are available for making permitting 

decisions, the hierarchy of the criterion 

will determine which data type will 

take precedence. In addition, as 

described above, when selenium is 

increasing due to new inputs, footnote 

4 of the criterion specifies that the water 

column criterion elements must be used 

when steady-state fish or bird tissue 

data are not available. 

When implementing the selenium 

criterion under the NPDES permits 

program, California may need to 

establish additional implementation 

procedures due to the unique 

components of the selenium criterion. 

Where California uses a water column 

criterion element only (as opposed to 

using both the water column and fish 

tissue or bird tissue criterion elements) 

for conducting reasonable potential 

determinations and establishing 

WQBELs per 40 CFR 122.44(d), it may 

be appropriate for the State to evaluate 

existing implementation procedures for 

other water column aquatic life criteria. 

However, if California also decides to 

use the selenium fish tissue criterion 

elements and bird tissue criterion 

elements for NPDES permitting 

purposes, additional State WQS 

implementation procedures will likely 

be needed to determine the need for and 

development of WQBELs necessary to 

ensure that the tissue criterion 

element(s) are met. 

E. Incorporation by Reference 

The regulatory text incorporates one 

EPA document by reference, 

specifically, the EPA’s Method for 

Translating Selenium Tissue Criterion 

Elements into Site-specific Water 

Column Criterion Elements for 

California, Version 2, December 2024, 

discussed in section III.C of this 

preamble. The EPA has made, and will 

continue to make, this document 

available electronically at its website 

(https://www.epa.gov/wqs-tech/waterquality-standards-establishmentnumeric-criterion-selenium-freshwaters-california) and through 

www.regulations.gov at the docket 

associated with this rulemaking. 

IV. Endangered Species Act 

Section 7(a)(2) of the ESA requires 

that each Federal agency ensure that any 

action authorized, funded, or carried out 

by such agency is not likely to 

jeopardize the continued existence of 

any endangered or threatened species or 

result in the destruction or adverse 

modification of critical habitat. For this 

rule, the EPA transmitted a Biological 

Evaluation to NMFS and FWS on 

November 23, 2022. 

On June 21, 2024, the EPA received a 

final Biological Opinion from FWS that 

determined that the EPA’s action is 

likely to adversely affect but will not 

jeopardize the continued existence of 

bonytail, razorback sucker, Santa Ana 

sucker, tidewater goby, unarmored 

threespine stickleback, arroyo toad, 

California red-legged frog, foothill 

yellow-legged frog, light-footed 

Ridgway’s rail, Yuma Ridgway’s rail, 

and California least tern. FWS also 

concurred with the EPA that the action 

may affect but is not likely to adversely 

affect the other Federally listed species 

and designated critical habitats for all 

species that were included in the 

consultation, including the longfin 

smelt for which the FWS provided 

supplemental concurrence with the EPA 

on October 29, 2024, that the action may 


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18FWS proposed to list the San Francisco BayDelta distinct population segment of longfin smelt 

as an endangered species on October 7, 2022 (87 FR 

60957) and finalized the rule on July 30, 2024 (89 

FR 61029) with an effective date of August 29, 2024. 

The San Francisco Bay-Delta distinct population 

segment of longfin smelt had not been identified as 

part of the consultation in the EPA’s biological 

evaluation or the FWS’s Biological Opinion that the 

EPA received on June 21,2024, before the final rule 

was signed. As such, the EPA worked with FWS to 

address this species listing prior to signing the final 

rule. 

19For purposes of this rule, an Indian Tribe that 

obtains EPA approval to administer a WQS program 

under CWA section 303(c) for its reservation is 

referred to as an ‘‘authorized Tribe.’’ 

20 If a state or authorized Tribe adopts a new or 

revised WQS based on a use attainability analysis, 

affect but is not likely to adversely affect 

that species.18

On August 28, 2024, the EPA received 

a final Biological Opinion from NMFS 

that determined that the EPA’s action is 

likely to adversely affect but will not 

jeopardize the continued existence of 

Central California Coast coho salmon, 

Southern Oregon/Northern California 

Coast coho salmon, Southern California 

steelhead, Central Valley steelhead, 

Northern California steelhead, Central 

California Coast steelhead, SouthCentral California Coast steelhead, 

Sacramento River winter-run Chinook 

salmon, Central Valley spring-run 

Chinook salmon, Central California 

Coast Chinook salmon, the Southern 

distinct population segment of North 

American green sturgeon, nor is the 

proposed action likely to result in the 

destruction or adverse modification of 

critical habitat for these species. NMFS 

also concurred with the EPA that the 

action may affect but is not likely to 

adversely affect the other Federally 

listed species and the designated critical 

habitat for the other species that were 

included in the consultation. 

The EPA’s receipt of these final 

Biological Opinions and concurrences 

from the Services concludes the 

consultation for this rule under ESA 

section 7(a)(2). Documents associated 

with this ESA consultation are available 

in the docket associated with this rule 

(Docket ID: EPA–HQ–OW–2018–0056). 

V. Applicability of the EPAPromulgated Water Quality Standards 

This final rule for a chronic selenium 

freshwater criterion applies to certain 

waters of California in a manner 

consistent with the CTR where the 

protection of aquatic life and aquaticdependent wildlife are designated uses, 

which includes the waters of the San 

Luis National Wildlife Refuge and the 

Los Banos State Wildlife Refuge. 

The final rule does not apply to 

California waters where site-specific 

selenium criteria have been adopted, 

nor does it apply to California waters 

where selenium criteria have been 

promulgated in the NTR. In other 

words, this final rule does not apply to 

waters of the San Francisco Bay 

upstream to and including Suisun Bay 

and the Sacramento-San Joaquin Delta, 

the San Joaquin River from Sack Dam to 

Vernalis, Mud Slough (north), Salt 

Slough, or constructed and 

reconstructed water supply channels in 

the Grassland watershed listed in 

Appendix 40 of the Central Valley 

Regional Water Quality Control Board’s 

Basin Plan because these waters have 

applicable selenium criteria from the 

NTR and/or approved Central Valley 

Regional Water Quality Control Board 

site-specific objectives. 

Lastly, the final rule does not apply to 

surface waters that are tributaries to the 

Salton Sea because California adopted, 

and EPA-approved, site-specific water 

quality objectives for these waters. 

As noted previously, this action adds 

clarifying language to the regulatory 

provisions regarding applicability of the 

CTR based on the salinity level of the 

waterbody in paragraphs (c)(3)(ii) and 

(iii) of 40 CFR 131.38. The added 

language is not intended to affect the 

substance of those applicability 

provisions. 

The State of California has nine 

Regional Water Quality Control Boards 

(Regional Boards), each located in and 

overseeing different areas of the State. 

Each Regional Board has a regional 

water quality control plan (Basin Plan) 

that sets forth EPA-approved designated 

(beneficial) uses for the waterbodies it 

oversees. The criterion will become the 

applicable CWA-effective criterion for 

CWA implementation purposes by each 

of the Regional Boards after the effective 

date of this rule (i.e., 30 days after the 

date of publication of this rule in the 

Federal Register). 

VI. Conditions When Federal Standards 

Would Be Withdrawn 

Under the CWA, Congress gave states 

the primary responsibility for 

developing and adopting WQS for their 

waters (CWA section 303(a) through (c)). 

Although the EPA is promulgating a 

selenium criterion for the protection of 

aquatic life and aquatic-dependent 

wildlife for certain waters of California, 

California continues to have the option 

to adopt and submit to the EPA 

selenium criteria for the State’s waters 

consistent with CWA section 303(c) and 

the EPA’s implementing regulations at 

40 CFR part 131. 

If California adopts and submits 

selenium criteria for the protection of 

aquatic and aquatic-dependent wildlife 

for California (fresh water and/or salt 

water), the EPA will approve 

California’s criteria if those criteria meet 

the requirements of section 303(c) of the 

CWA and the EPA’s implementing 

regulation at 40 CFR part 131. If the 

EPA’s Federally promulgated criteria are 

more stringent than the State’s criteria, 

the EPA’s Federally promulgated 

criteria are and will be the applicable 

water quality standard for purposes of 

the CWA until the EPA withdraws those 

Federally promulgated standards. The 

EPA would expeditiously undertake 

such a rulemaking to withdraw the 

Federal criteria if and when California 

adopts and the EPA approves 

corresponding criteria. After the EPA’s 

withdrawal of Federally promulgated 

criteria, the State’s EPA-approved 

criteria would become the applicable 

criteria for CWA purposes. If the State’s 

adopted criteria are as stringent or more 

stringent than the Federally 

promulgated criteria, then the State’s 

criteria would become the CWA 

applicable WQS upon the EPA’s 

approval (40 CFR 131.21(c)). 

VII. Alternative Regulatory Approaches 

The EPA’s WQS regulation at 40 CFR 

part 131 provides several tools that 

California has available to use at its 

discretion when implementing or 

deciding how to implement this 

selenium criterion. Among other things, 

the EPA’s regulation: (1) specifies how 

states and authorized Tribes 19 establish, 

modify or remove designated uses; (2) 

specifies the requirements for 

establishing criteria to protect 

designated uses, including criteria 

modified to reflect site-specific 

conditions; (3) specifies the 

requirements for states and authorized 

Tribes to adopt WQS variances that 

provide time to achieve the applicable 

WQS; and (4) allows states and 

authorized Tribes to authorize the use of 

compliance schedules in NPDES 

permits to meet WQBELs derived from 

the applicable WQS. Each of these 

approaches are discussed in more detail 

in the next sections of this preamble. 

Designated Uses 

The EPA’s action applies to certain 

waters of California where the 

protection of aquatic life and aquaticdependent wildlife are designated uses. 

The regulation at 40 CFR 131.10 

provides information on establishing, 

modifying, and removing designated 

uses. If California removes designated 

uses such that no aquatic life or aquaticdependent wildlife uses apply to any 

particular waterbody or waterbody 

segment affected by this rule and adopts 

the highest attainable use,20 the State 


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then it must also adopt the highest attainable use 

(40 CFR 131.10(g)). Highest attainable use is the 

modified aquatic life, wildlife, or recreation use that 

is both closest to the uses specified in section 

101(a)(2) of the Act and attainable, based on the 

evaluation of the factor(s) in 40 CFR 131.10(g) that 

preclude(s) attainment of the use and any other 

information or analyses that were used to evaluate 

attainability. There is no required highest attainable 

use where the state demonstrates the relevant use 

specified in section 101(a)(2) of the Act and subcategories of such a use are not attainable (see 40 

CFR 131.3(m)). 

must also adopt criteria to protect the 

newly designated highest attainable use 

consistent with 40 CFR 131.11. It is 

possible that criteria other than the 

Federally promulgated criteria would 

protect the highest attainable use. If the 

EPA were to find removal or 

modification of the designated use and 

the adoption of the highest attainable 

use and criteria to protect that use is 

consistent with CWA section 303(c) and 

the implementing regulations at 40 CFR 

part 131, the EPA would approve the 

revised WQS. The EPA would then 

undertake a rulemaking to withdraw the 

corresponding Federally promulgated 

WQS for the relevant water(s). 

Site-Specific Criteria 

The regulation at 40 CFR 131.11 

specifies requirements for modifying 

water quality criteria to reflect sitespecific conditions. In the context of 

this rulemaking, a site-specific criterion 

(SSC) is an alternative value to the 

Federal selenium criterion that would 

be applied on an area-wide or 

waterbody-specific basis that meets the 

regulatory test of protecting the 

designated uses, being scientifically 

defensible, and ensuring the protection 

and maintenance of downstream WQS. 

In this context, as discussed in section 

III.C of this preamble, SSC are different 

than a site-specific water column 

criterion element developed through the 

PBA incorporated by reference in this 

final rule. A SSC may be more or less 

stringent than the otherwise applicable 

Federal criterion. A SSC may be called 

for when further scientific data and 

analyses indicate that a different 

selenium concentration (e.g., a different 

fish tissue or bird tissue criterion 

element) may be needed to protect the 

aquatic life and aquatic-dependent 

wildlife-related designated uses in a 

particular waterbody or portion of a 

waterbody. Any such state-adopted SSC 

will need to be submitted to the EPA for 

review and approval pursuant to CWA 

section 303(c) and the EPA’s 

implementing regulation at 40 CFR part 

131. 

WQS Variances 

California’s WQS provide sufficient 

authority to apply WQS variances when 

implementing a Federally promulgated 

criterion for selenium, as long as such 

WQS variances are adopted consistent 

with 40 CFR 131.14 and submitted to 

the EPA for review and approval under 

CWA section 303(c). The EPA’s 

regulation at 40 CFR 131.3(o) defines a 

WQS variance as a time-limited 

designated use and criterion, for a 

specific pollutant or water quality 

parameter, that reflects the highest 

attainable condition during the term of 

the WQS variance. WQS variances 

adopted in accordance with 40 CFR 

131.14 (including a public hearing 

consistent with 40 CFR 131.20(b)) 

provide a flexible but defined pathway 

for states and authorized Tribes to meet 

their NPDES permit obligations by 

allowing dischargers the time they need 

(as demonstrated by the state or 

authorized Tribe) to make incremental 

progress toward meeting WQS that are 

not immediately attainable but may be 

in the future. When adopting a WQS 

variance, states and authorized Tribes 

specify the interim requirements of the 

WQS variance by identifying a 

quantitative expression that reflects the 

highest attainable condition during the 

term of the WQS variance, establishing 

the term of the WQS variance, and 

describing the pollutant control 

activities expected to occur over the 

specified term of the WQS variance. 

WQS variances help states and 

authorized Tribes focus on improving 

water quality, rather than pursuing a 

downgrade of the underlying water 

quality goals through modification or 

removal of a designated use, as a WQS 

variance cannot lower currently attained 

water quality. NPDES permit limits can 

be written to comply with the WQS 

variance rather than the underlying 

WQS for the specified term of the WQS 

variance. If dischargers are still unable 

to meet the WQBELs derived from the 

applicable WQS once a WQS variance 

term is complete, the state or authorized 

Tribe may adopt a subsequent WQS 

variance if adopted consistent with 40 

CFR 131.14. 

Compliance Schedules 

The EPA’s regulation at 40 CFR 

122.47 allows permitting authorities to 

include compliance schedules in their 

NPDES permits, when appropriate and 

where authorized by the state or 

authorized Tribe. The EPA’s regulation 

at 40 CFR 131.15 requires that states and 

authorized Tribes that choose to allow 

the use of NPDES permit compliance 

schedules adopt specific provisions 

authorizing their use and obtain EPA 

approval under CWA section 303(c) to 

ensure that a decision to allow permit 

compliance schedules is transparent 

and allows for public input (80 FR 

51022, August 21, 2015). The EPA’s 

approval of a state or authorized Tribe’s 

permit compliance schedule authorizing 

provision as a WQS pursuant to 40 CFR 

131.15 ensures that any NPDES permit 

that contains a compliance schedule 

meets the requirement that the level of 

water quality to be achieved by the 

WQBEL derive from and comply with 

all applicable WQS (40 CFR 

122.44(d)(1)(vii)(A)). 

California is authorized to administer 

the NPDES program and has adopted 

several mechanisms to specify 

compliance schedules in NPDES 

permits. In 2008, California adopted a 

statewide compliance schedule 

authorizing provision that the EPA 

subsequently approved under CWA 

section 303(c), the Policy for 

Compliance Schedules in National 

Pollutant Discharge Elimination System 

Permits, State Water Resources Control 

Board Resolution No. 2008–0025, April 

15, 2008. This EPA-approved regulation 

authorizes the use of permit compliance 

schedules consistent with 40 CFR 

131.15, and is not affected by this rule. 

The compliance schedule authorizing 

provision will allow California, as the 

permitting authority, to specify 

compliance schedules in permits, as 

appropriate, for the purpose of 

achieving compliance with a WQBEL 

based on the selenium criterion 

promulgated in this final rule, which is 

more stringent than the existing criteria 

for California, as soon as possible. 

VIII. Economic Analysis 

To best inform the public of the 

potential impacts of this rule, the EPA 

evaluated the potential costs associated 

with State implementation of the EPA’s 

selenium criterion based on available 

information. This analysis is 

documented in Economic Analysis for 

the Final Selenium Water Quality 

Criterion for the State of California, 

which can be found in the docket for 

this rule. For this analysis, the EPA 

assumed that California fully 

implements its existing selenium 

criteria (i.e., ‘‘baseline criteria’’) and 

estimated the incremental impacts for 

compliance with the selenium criterion 

in this rule. To facilitate this analysis, 

the EPA interpreted the criterion as the 

default water column criterion element 

(i.e., a lentic and lotic value) from the 

EPA’s current CWA section 304(a) 

selenium criterion for fresh water. For 

point source costs, the EPA assumed 

any NPDES-permitted facility that 


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21 301(b), Timetable for achievement of objectives: 

In order to carry out the objective of the chapter 

there shall be achieved not later than July 1, 1977, 

any more stringent limitation, including those 

necessary to meet water quality standards, 

treatment standards, or schedules of compliance, 

established pursuant to any State law or regulations 

(under authority preserved by section 1370 of the 

title) or any other Federal law or regulation, or 

required to implement any applicable water quality 

standard established pursuant to the chapter. 

discharges selenium would have 

reasonable potential and would be 

subject to effluent limits and would 

incur compliance costs if it chose to 

continue discharging. The EPA also 

evaluated nonpoint sources that 

contribute selenium loadings to waters 

that would be considered impaired for 

selenium under the final criterion and 

evaluated whether they would incur 

incremental costs for additional best 

management practices. The total 

annualized cost of this final rule was 

estimated to range from $28.34 million 

to $44.84 million at a 2% discount rate. 

See Economic Analysis for the Final 

Selenium Water Quality Criterion for the 

State of California for a detailed 

summary of the information and 

assumptions the EPA relied on to 

estimate potential costs to implement 

the final rule. 

IX. Statutory and Executive Orders 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 14094 (Modernizing Regulatory 

Review) 

This action is not a significant 

regulatory action as defined in 

Executive Order 12866, as amended by 

Executive Order 14094, and was 

therefore not subject to a requirement 

for Executive Order 12866 review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information-collection burden under the 

PRA. This action does not directly 

contain any information collection, 

reporting, or record-keeping 

requirements. The Office of 

Management and Budget (OMB) has 

previously approved the information 

collection requirements contained in the 

existing regulations at 40 CFR part 131 

and has assigned OMB control number 

2040–0049. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. This action will not 

impose any requirements on small 

entities. 

The EPA-promulgated WQS are 

implemented through various water 

quality control programs, including the 

NPDES program, which limits 

discharges to navigable waters except in 

compliance with a NPDES permit. CWA 

section 301(b)(1)(C) 21 and the EPA’s 

implementing regulations at 40 CFR 

122.44(d)(1) introductory text and 

(d)(1)(i) provide that all NPDES permits 

shall include any limits on discharges 

that are necessary to meet applicable 

WQS. Thus, under the CWA, the EPA’s 

promulgation of WQS establishes 

standards that the State implements 

through the NPDES permit process. 

While the State has discretion in 

developing discharge limits, as needed, 

to meet the WQS, those limits, per the 

regulation at 40 CFR 122.44(d)(1)(i), 

‘‘must control all pollutants or pollutant 

parameters (either conventional, 

nonconventional, or toxic pollutants) 

which the Director determines are or 

may be discharged at a level that will 

cause, have the reasonable potential to 

cause, or contribute to an excursion 

above any [s]tate water quality standard, 

including [s]tate narrative criteria for 

water quality.’’ 

As a result of this action, the State of 

California must ensure that NPDES 

permits it issues include any limitations 

on discharges necessary to comply with 

the WQS established in the final rule. 

While California’s implementation of 

the rule may ultimately result in new or 

revised permit conditions for some 

dischargers, including small entities, the 

EPA’s action, by itself, does not impose 

any of these requirements on small 

entities; that is, these requirements are 

not self-implementing. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local, or 

Tribal governments or the private sector. 

E. Executive Order 13132 (Federalism) 

This action does not have federalism 

implications. The EPA believes, 

however, that this action may be of 

significant interest to state governments. 

Consistent with the EPA’s policy to 

promote communications between the 

EPA and state and local governments, 

the EPA consulted with California early 

in the process of developing this 

rulemaking to provide the State with an 

opportunity to provide meaningful and 

timely input. 

On several occasions starting in 

February 2018, the EPA discussed the 

development of this rule with the 

California State Water Resources 

Control Board and several Regional 

Water Quality Control Boards. Early in 

this process, the EPA clarified that if 

and when the State decides to develop 

and establish its own selenium 

standards, the EPA would assist the 

State in its process. During these 

discussions, the EPA also explained: the 

scientific basis for the fish and bird 

tissue elements of the selenium criterion 

and the methodologies for translating 

the tissue elements to water column 

values; the external peer review process 

and the comments the EPA received on 

the derivation of the criterion; the EPA’s 

consideration of those comments and 

responses; possible alternatives for 

criteria or a criterion matrix; the 

assumptions and data being used in the 

economic analysis associated with the 

rule; and the overall timing of the 

Federal rulemaking effort. The EPA took 

these discussions with the State into 

account during the drafting of this final 

rule. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This action does not have Tribal 

implications as specified in Executive 

Order 13175. This rule does not impose 

substantial direct compliance costs on 

federally recognized Tribal 

governments, nor does it substantially 

affect the relationship between the 

Federal Government and Tribes, or the 

distribution of power and 

responsibilities between the Federal 

Government and Tribes. Thus, 

Executive Order 13175 does not apply 

to this action. 

Consistent with the EPA Policy on 

Consultation and Coordination with 

Indian Tribes, during the development 

of this action, the EPA offered Tribal 

leaders of potentially affected Tribes in 

California government-to-government 

consultation on the proposed selenium 

rulemaking. The Torres Martinez Desert 

Cahuilla Indian Tribe responded, with 

questions and concerns about selenium 

monitoring in the tributaries to the 

Salton Sea. The tributaries to the Salton 

Sea have State-adopted and EPAapproved site-specific water quality 

criteria (objectives) in place that are not 

affected by this rule. 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 


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22 Von Stackelberg, K., et al. (2017). Results of a 

national survey of high-frequency fish consumers in 

the United States. Environmental Research 158, 

126–136. https://bgc.seas.harvard.edu/assets/ 

vonstackelberg2017.pdf. 

23https://www.census.gov/quickfacts/ 

orangecountycalifornia. 

24https://www.census.gov/quickfacts/ 

auburncitycalifornia. 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive order. Therefore, this action is 

not subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

This rule relates to protection of aquatic 

life and aquatic-dependent wildlife. 

Since this action does not concern 

human health, the EPA’s Policy on 

Children’s Health also does not apply. 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

This action is not a ‘‘significant 

energy action’’ because it is not likely to 

have a significant adverse effect on the 

supply, distribution, or use of energy. 

This action impacts water quality 

standards, which do not regulate the 

supply, distribution, or use of energy. 

I. National Technology Transfer and 

Advancement Act of 1995 

This rule does not involve technical 

standards. 

J. Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations) and Executive 

Order 14096 (Revitalizing Our Nation’s 

Commitment to Environmental Justice 

for All) 

The EPA believes that the human 

health and environmental conditions 

that exist prior to this action do not 

result in disproportionate and adverse 

effects on communities with 

environmental justice concerns. In the 

EPA’s Economic Analysis for the Final 

Selenium Water Quality Criterion for the 

State of California (economic analysis 

document), which can be found in the 

docket for this rule, Exhibit 5–2 

illustrates the geographic distribution of 

waters where available data indicate 

elevated levels of selenium. These 

waters are located throughout the State. 

An analysis of proximity to minority 

and low-income populations might or 

might not reveal patterns of association 

that differ from waters that are not 

impaired. However, making definitive 

connections between waters monitored 

for water quality and the effects of 

selenium from the use of these resources 

would likely depend on many other 

local factors, such as accessibility to and 

availability of alternative water sources. 

The EPA believes that this action is 

not likely to result in new 

disproportionate and adverse effects on 

communities with environmental justice 

concerns. The freshwater criterion for 

selenium in California does not address 

human health impacts, and only applies 

to aquatic life and aquatic-dependent 

wildlife uses. This rule will support the 

health and abundance of aquatic life 

and aquatic-dependent wildlife in 

California and will, therefore, not only 

benefit those species but also benefit all 

communities that rely on or use these 

ecosystems. The EPA finds that, as 

compared to higher-income 

populations, low-income populations 

tend to rely more on fishing as a food 

source,22 and therefore, this rule may 

benefit low-income communities. This 

and other EPA actions with goals of 

protecting fishing resources are a high 

priority for the EPA. The potential 

benefits associated with this final rule 

are also addressed in the economic 

analysis document. 

To achieve the benefits associated 

with a final rule, the EPA recognizes 

that some facilities may need to add 

pollution control measures and incur 

additional compliance costs over time to 

meet any WQBELs needed to achieve 

the promulgated selenium criterion. The 

EPA used the California Communities 

Environmental Health Screening Tool: 

CalEnviroScreen 4.0 tool developed by 

California Office of Environmental 

Health Hazard Assessment and 

determined that none of the facilities 

identified in the EPA’s Economic 

Analysis for the Final Selenium Water 

Quality Criterion for the State of 

California that would incur additional 

annual costs, are located in 

communities with elevated 

environmental justice concerns. This is 

one line of evidence that these 

communities would not bear a 

disproportionate share of the burden 

with promulgation of this rule. To 

further explore the anticipated impacts, 

the EPA analyzed two facilities 

identified in the EPA’s economic 

analysis that may incur additional 

compliance costs over time to meet any 

WQBELs needed to achieve the 

promulgated selenium criterion. For 

illustrative purposes, the EPA first 

analyzed the Michelson Water 

Reclamation Plant (WRP), which serves 

an area located in parts of Orange 

County. Using CalEnviroScreen 4.0, the 

EPA examined education level, poverty 

level, and unemployment level within 

the service area. Some areas showed low 

environmental justice concerns (high 

education, low poverty, and low 

unemployment), whereas other areas in 

the county had slightly higher 

environmental justice concerns 

(moderate education levels, poverty, 

and unemployment). There did not 

appear to be a clear pattern of 

disproportionate impacts to specific 

communities. As presented in the 

economic analysis document, the EPA 

estimates that pollution control 

upgrades to the Michelson WRP could 

potentially result in a total cost of 

$4,856,000. The population served by 

Michelson WRP is 331,500 people, 

which would result in a per-person 

increased cost of $14.65 per year. The 

average household size in Orange 

County (the area served by Michaelson 

WRP) is 3.01 23 people per household, 

resulting in an estimated additional 

average household cost of $44.09 per 

year, or $3.67 per month. This 

potentially modest increase in monthly 

sewerage bill of $3.67 per household per 

month appears unlikely to 

disproportionally impact low-income 

populations, populations with low 

education levels, and/or communities 

with low employment rates. 

The second facility that the EPA has 

included in this analysis for illustrative 

purposes may incur annual costs due to 

implementing pollution control 

upgrades is the Auburn Wastewater 

Treatment Plant (WWTP). The Auburn 

WWTP serves 13,800 people in the city 

of Auburn in Placer County. Using the 

CalEnviroScreen 4.0 tool, the EPA 

examined education level, poverty level, 

and unemployment level within the 

service area. Auburn showed relatively 

high education levels, moderate poverty 

levels, and moderate unemployment 

levels. There did not appear to be a clear 

pattern of disproportionate impacts to 

specific communities. As presented in 

the economic analysis document, the 

EPA estimates that pollution control 

upgrades to the Auburn WWTP could 

potentially result in a total cost of 

$491,000. The population served by the 

Auburn WWTP is 13,800 people, which 

would result in a per-person increased 

cost of $35.58 per year. The average 

household size in Auburn is 2.15 24

people per household, resulting in an 

estimated additional average household 

cost of $76.50 per year, or $6.37 per 

month. This potentially modest increase 

in monthly sewerage bill of $6.37 per 

household per month appears unlikely 

to disproportionally impact low-income 

populations, populations with low 

education levels, and/or communities 

with low employment rates. 

These examples show that while these 

communities only have moderate 

environmental justice concerns 


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101928 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

(according to CalEnviroScreen), the lowincome portions of these communities 

would not incur a significant burden as 

a result of this final rule. Overall, the 

EPA anticipates that the 

abovementioned benefits will ultimately 

outweigh these potential pass-through 

sewerage costs and that this rule will 

help address any environmental justice 

concerns by benefitting aquatic species 

and the communities that may rely on 

or use them. 

In addition to Executive Order 12898, 

and in accordance with Title VI of the 

Civil Rights Act of 1964, each Federal 

agency shall ensure that all programs or 

activities receiving Federal financial 

assistance that affect human health or 

the environment do not directly, or 

through contractual or other 

arrangements, use criteria, methods, or 

practices that discriminate on the basis 

of race, color, or national origin. With 

that directive in mind, in August 2011 

the Environmental Justice Interagency 

Working Group established a Title VI 

Committee to address the intersection of 

agencies’ environmental justice efforts 

with their Title VI enforcement and 

compliance responsibilities. While the 

EPA only has an oversight role for CWA 

implementation, if California receives 

Federal funds for CWA implementation, 

the State is legally prohibited from 

discriminating on the basis of race, 

color, or national origin under Title VI 

when engaging in CWA implementation 

activities. Additionally, and in 

compliance with Executive Order 

12898, the EPA expects that California 

will consider disproportionately high 

and adverse human health and 

environmental effects on minority and 

low-income populations when 

implementing this rulemaking under the 

CWA. 

The information supporting this 

Executive Order review is contained in 

the EPA’s Economic Analysis for the 

Final Selenium Water Quality Criterion 

for the State of California, the California 

Communities Environmental Health 

Screening Tool: CalEnviroScreen 4.0 

tool developed by California Office of 

Environmental Health Hazard 

Assessment, and the 2022 United States 

census data for Orange County, 

California and Auburn, California. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

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

List of Subjects in 40 CFR Part 131 

Environmental protection, 

Incorporation by reference, Indianslands, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Water pollution control. 

Michael S. Regan, 

Administrator. 

For the reasons set forth in the 

preamble, the EPA amends 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. 

■ 2. Amend § 131.38 by adding a 

heading for paragraph (b) and revising 

paragraphs (b)(1) and (c)(3)(ii) and (iii) 

to read as follows: 

§ 131.38 Establishment of numeric criteria 

for priority toxic pollutants for the State of 

California. 

* * * * * 

(b) Criteria. (1) Criteria for priority 

toxic pollutants in the State of 

California as described in table 1 to this 

paragraph (b)(1): 

Table 1 to Paragraph (b)(1) 

BILLING CODE 6560–50–P 


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A B C D 

Freshwater Saltwater Human health 

(10-6 risk for carcinogens) 

for consumption of: 

Number Compound CAS No. Criterion Criterion Criterion Criterion Water Organisms 

maximum continuous maximum continuous and only 

cone. d cone. d cone. d cone. d organisms 

(μg/L) (μg/L) 

(μg/L) (μg/L) (μg/L) (μg/L) 

D1 D2 

Bl B2 Cl C2 

1. Antimony 7440360 14 a,s 4300 a,t 

2. Arsenic b 7440382 340 i,m,w 150 i,m,w 69i,m 36 i,m 

3. Bery Ilium 7440417 n n 

4. Cadmium b 7440439 4.3 2.2 e,i,m,w 42i,m 9.3 i,m n n 

e,i,m,w,x 

5a. Chromium (III) 16065831 550 e,i,m,o 180 e,i,m,o n n 

5b. Chromium (VI) b 18540299 16 i,m,w 11 i,m,w 1100 i,m 50 i,m n n 

6. Copper b 7440508 13 9.0 e,i,m,w 4.8i,m 3.1 i,m 1300 

e,i,m,w,x 

7. Lead b 7439921 65 e,i,m,z 2.5 e,i,m,z 210 i,m 8.1 i,m n n 

8. Mercury b 7439976 [Reserved] [Reserved] [Reserved] [Reserved] 0.050 a 0.051 a 

9. Nickel b 7440020 470 52 e,i,m,w 74i,m 8.2 i,m 610 a 4600 a 

e,i,m,w 

10. Selenium b 7782492 p q,l 290 i,m 71 i,m n n 

11. Silver b 7440224 3.4 e,i,m 1.9 i,m 

12. Thallium 7440280 1.7 a,s 6.3 a,t 

13. Zinc b 7440666 120 120 e,i,m,w 90i,m 81 i,m 

e,i,m,w,x 

14. Cyanide b 57125 22 0 5.2 0 1 r 1 r 700 a 220,000 a,j 

15. Asbestos 1332214 7,000,000 

fibers/L 

k,s 

16. 2,3,7,8-TCDD (Dioxin) 1746016 0.0000000 0.000000014 

13 C C 

17. Acrolein 107028 320 s 780 t 

18. Acrylonitrile 107131 0.059 a,c,s 0.66 a,c,t 

19. Benzene 71432 1.2 a,c 71 a,c 

20. Bromoform 75252 4.3 a,c 360 a,c 

21. Carbon Tetrachloride 56235 0.25 a,c,s 4.4 a,c,t 

22. Chlorobenzene 108907 680 a,s 21,000 a,j,t 
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23. Chlorodibromomethane 124481 0.41 a,c,y 34 a,c 

24. Chloroethane 75003 

25. 2-Chloroethylvinyl 110758 

Ether 

26. Chloroform 67663 [Reserved] [Reserved] 

27. Dichlorobromomethane 75274 0.56 a,c,y 46 a,c 

28. 1,1-Dichloroethane 75343 

29. 1,2-Dichloroethane 107062 0.38 a,c,s 99 a,c,t 

30. 1,1-Dichloroethylene 75354 0.057 a,c,s 3.2 a,c,t 

31. 1,2-Dichloropropane 78875 0.52 a 39 a 

32. 1,3-Dichloropropylene 542756 10 a,s 1,700 a,t 

33. Ethylbenzene 100414 3,100 a,s 29,000 a,t 

34. Methyl Bromide 74839 48 a 4,000 a 

35. Methyl Chloride 74873 n n 

36. Methylene Chloride 75092 4.7 a,c 1,600 a,c 

37. 1,1,2,2- 79345 0.17 a,c,s 11 a,c,t 

Tetrachloroethane 

38. Tetrachloroethylene 127184 0.8 c,s 8.85 c,t 

39. Toluene 108883 6,800 a 200,000 a 

40. 1,2-Trans- 156605 700 a 140,000 a 

Dichloroethylene 

41. 1, 1, 1-Trichloroethane 71556 n n 

42. 1, 1,2-Trichloroethane 79005 0.60 a,c,s 42 a,c,t 

43. Trichloroethylene 79016 2.7 c,s 81 c,t 

44. Vinyl Chloride 75014 2 c,s 525 c,t 

45. 2-Chlorophenol 95578 120 a 400 a 

46. 2,4-Dichlorophenol 120832 93 a,s 790 a,t 

47. 2,4-Dimethylphenol 105679 540 a 2,300 a 

48. 2-Methyl-4,6- 534521 13.4 s 765 t 

Dinitrophenol 

49. 2,4-Dinitrophenol 51285 70 a,s 14,000 a,t 

50. 2-Nitrophenol 88755 

51. 4-Nitrophenol 100027 

52. 3-Methyl-4- 59507 

Chlorophenol 

53. Pentachlorophenol 87865 19 f,w 15 f,w 13 7.9 0.28 a,c 8.2 a,cj 
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54. Phenol 108952 21,000 a 4,600,000 

a,j,t 

55. 2,4,6-Trichlorophenol 88062 2.1 a,c 6.5 a,c 

56. Acenaphthene 83329 1,200 a 2,700 a 

57. Acenaphthylene 208968 

58. Anthracene 120127 9,600 a 110,000 a 

59. Benzidine 92875 0.00012 0.00054 a,c,t 

a,c,s 

60. Benzo(a)Anthracene 56553 0.0044 a,c 0.049 a,c 

61. Benzo(a)Pyrene 50328 0.0044 a,c 0.049 a,c 

62. Benzo(b )Fluoranthene 205992 0.0044 a,c 0.049 a,c 

63. Benzo(ghi)Perylene 191242 

64. Benzo(k)Fluoranthene 207089 0.0044 a,c 0.049 a,c 

65. Bis(2- 111911 

Chloroethoxy )Methane 

66. Bis(2-Chloroethyl)Ether 111444 0.031 a,c,s 1.4 a,c,t 

67. Bis(2- 108601 1,400 a 170,000 a,t 

Chloroisopropyl)Ether 

68. Bis(2- 117817 1.8 a,c,s 5.9 a,c,t 

Ethylhexyl)Phthalate 

69. 4-Bromophenyl Phenyl 101553 

Ether 

70. Butylbenzyl Phthalate 85687 3,000 a 5,200 a 

71. 2-Chloronaphthalene 91587 1,700 a 4,300 a 

72. 4-Chlorophenyl Phenyl 7005723 

Ether 

73. Chrysene 218019 0.0044 a,c 0.049 a,c 

74. Dibenzo(a,h)Anthracene 53703 0.0044 a,c 0.049 a,c 

75. 1,2 Dichlorobenzene 95501 2,700 a 17,000 a 

76. 1,3 Dichlorobenzene 541731 400 2,600 

77. 1,4 Dichlorobenzene 106467 400 2,600 

78. 3,3'-Dichlorobenzidine 91941 0.04 a,c,s 0.077 a,c,t 

79. Diethyl Phthalate 84662 23,000 a,s 120,000 a,t 

80. Dimethyl Phthalate 131113 313,000 s 2,900,000 t 

81. Di-n-Butyl Phthalate 84742 2,700 a,s 12,000 a,t 

82. 2,4-Dinitrotoluene 121142 0.11 c,s 9.1 c,t 

83. 2,6-Dinitrotoluene 606202 

84. Di-n-Octyl Phthalate 117840 
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85. 1,2-Diphenylhydrazine 122667 0.040 a,c,s 0.54 a,c,t 

86. Fluoranthene 206440 300 a 370 a 

87. Fluorene 86737 1,300 a 14,000 a 

88. Hexachlorobenzene 118741 0.00075 0.00077 a,c 

a,c 

89. Hexachlorobutadiene 87683 0.44 a,c,s 50 a,c,t 

90. 77474 240 a,s 17,000 aj,t 

Hexachlorocyclopentadiene 

91. Hexachloroethane 67721 1.9 a,c,s 8.9 a,c,t 

92. Indeno(l,2,3-cd) Pyrene 193395 0.0044 a,c 0.049 a,c 

93. lsophorone 78591 8.4 c,s 600 c,t 

94. Naphthalene 91203 

95. Nitrobenzene 98953 17 a,s 1,900 a,j,t 

96. N- 62759 0.00069 8.1 a,c,t 

Nitrosodimethylamine a,c,s 

97. N-Nitrosodi-n- 621647 0.005 a 1.4 a 

Propylamine 

98. N-Nitrosodiphenylamine 86306 5.0 a,c,s 16 a,c,t 

99. Phenanthrene 85018 

100. Pyrene 129000 960 a 11,000 a 

101. 1,2,4-Trichlorobenzene 120821 

102. Aldrin 309002 3g 1.3 g 0.00013 0.00014 a,c 

a,c 

103. alpha-BHC 319846 0.0039 a,c 0.013 a,c 

104. beta-BHC 319857 0.014 a,c 0.046 a,c 

105. gamma-BHC 58899 0.95 w 0.16 g 0.019 C 0.063 C 

106. delta-BHC 319868 

107. Chlordane 57749 2.4 g 0.0043 g 0.09 g 0.004 g 0.00057 0.00059 a,c 

a,c 

108. 4,4'-DDT 50293 1.1 g 0.001 g 0.13 g 0.001 g 0.00059 0.00059 a,c 

a,c 

109. 4,4'-DDE 72559 0.00059 0.00059 a,c 

a,c 

110. 4,4'-DDD 72548 0.00083 0.00084 a,c 

a,c 

111. Dieldrin 60571 0.24w 0.056 w 0.71 g 0.0019 g 0.00014 0.00014 a,c 

a,c 

112. alpha-Endosulfan 959988 0.22 g 0.056 g 0.034 g 0.0087 g 110 a 240 a 

113. beta-Endosulfan 33213659 0.22 g 0.056 g 0.034 g 0.0087 g 110 a 240 a 
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114. Endosulfan Sulfate 1031078 110 a 240 a 

115. Endrin 72208 0.086w 0.036 w 0.037 g 0.0023 g 0.76 a 0.81 aj 

116. Endrin Aldehyde 7421934 0.76 a 0.81 aj 

117. Heptachlor 76448 0.52g 0.0038 g 0.053 g 0.0036 g 0.00021 0.00021 a,c 

a,c 

118. Heptachlor Epoxide 1024573 0.52 g 0.0038 g 0.053 g 0.0036 g 0.00010 0.00011 a,c 

a,c 

119-125. Polychlorinated 0.014 u 0.03 u 0.00017 0.00017 c,v 

biphenyls (PCBs) c,v 

126. Toxaphene 8001352 0.73 0.0002 0.21 0.0002 0.00073 0.00075 a,c 

a,c 

Total Number of Criteria h 22 21 22 20 92 

a. Criteria revised to reflect the Agency q 1 * or RID, as contained in the Integrated Risk 

Information System (IRIS) as of October 1, 1996. The fish tissue bioconcentration factor (BCF) 

from the 1980 documents was retained in each case. 

b. Criteria apply to California waters except for those waters subject to objectives in Tables III2A and III-2B of the San Francisco Regional Water Quality Control Board's (SFRWQCB) 1986 

Basin Plan that were adopted by the SFRWQCB and the State Water Resources Control Board, 

approved by the EPA, and which continue to apply. For copper and nickel, criteria apply to 

California waters except for waters south of Dumbarton Bridge in San Francisco Bay that are 

subject to the objectives in the SFRWQCB's Basin Plan as amended by SFRWQCB Resolution 

R2-2002-0061, dated May 22, 2002, and approved by the State Water Resources Control Board. 

The EPA approved the aquatic life site-specific objectives on January 21, 2003. The copper and 

nickel aquatic life site-specific objectives contained in the amended Basin Plan apply instead. 

c. Criteria are based on carcinogenicity of 10 (-6) risk. 

d. Criteria Maximum Concentration (CMC) equals the highest concentration of a pollutant to 

which aquatic life can be exposed for a short period of time without deleterious effects. Criteria 

Continuous Concentration (CCC) equals the highest concentration of a pollutant to which aquatic 

life can be exposed for an extended period of time ( 4 days) without deleterious effects. ug/L 

equals micrograms per liter. 

e. Freshwater aquatic life criteria for metals are expressed as a function of total hardness (mg/L) 

in the water body. The equations are provided in matrix at paragraph (b)(2) of this section. 

Values displayed above in the matrix correspond to a total hardness of 100 mg/1. 

90 
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f. Freshwater aquatic life criteria for pentachlorophenol are expressed as a function of pH, and 

are calculated as follows: Values displayed above in the matrix correspond to a pH of 7.8. CMC 

= exp(l.005(pH)-4.869). CCC= exp(l.005(pH)-5.134). 

g. This criterion is based on 304(a) aquatic life criterion issued in 1980, and was issued in one of 

the following documents: Aldrin/Dieldrin (EPA 440/5-80-019), Chlordane (EPA 440/5-80-027), 

DDT (EPA 440/5-80-038), Endosulfan (EPA 440/5-80-046), Endrin (EPA 440/5-80-047), 

Heptachlor (440/5-80-052), Hexachlorocyclohexane (EPA 440/5-80-054), Silver (EPA 440/5-

80-071). The Minimum Data Requirements and derivation procedures were different in the 1980 

Guidelines than in the 1985 Guidelines. For example, a "CMC" derived using the 1980 

Guidelines was derived to be used as an instantaneous maximum. If assessment is to be done 

using an averaging period, the values given should be divided by 2 to obtain a value that is more 

comparable to a CMC derived using the 1985 Guidelines. 

h. These totals simply sum the criteria in each column. For aquatic life, there are 23 priority toxic 

pollutants with some type of freshwater or saltwater, acute or chronic criteria. For human health, 

there are 92 priority toxic pollutants with either "water + organism" or "organism only" criteria. 

Note that these totals count chromium as one pollutant even though the EPA has developed 

criteria based on two valence states. In the matrix, the EPA has assigned numbers 5a and 5b to 

the criteria for chromium to reflect the fact that the list of 126 priority pollutants includes only a 

single listing for chromium. 

i. Criteria for these metals are expressed as a function of the water-effect ratio, WER, as defined 

in paragraph (c) of this section. CMC = column Bl or Cl value x WER; CCC= column B2 or 

C2 value x WER. 

j. No criterion for protection of human health from consumption of aquatic organisms ( excluding 

water) was presented in the 1980 criteria document or in the 1986 Quality Criteria for Water. 

Nevertheless, sufficient information was presented in the 1980 document to allow a calculation 

of a criterion, even though the results of such a calculation were not shown in the document. 

k. The CWA 304(a) criterion for asbestos is the MCL. 

1. See paragraph (b )(1 )(i) of this section. 

m. These freshwater and saltwater criteria for metals are expressed in terms of the dissolved 

fraction of the metal in the water column. Criterion values were calculated by using the EPA's 

Clean Water Act 304(a) guidance values (described in the total recoverable fraction) and then 

applying the conversion factors in§ 131.36(b)(l) and (2). 
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n. The EPA is not promulgating human health criteria for these contaminants. However, permit 

authorities should address these contaminants in NPDES permit actions using the State's existing 

narrative criteria for toxics. 

o. These criteria were promulgated for specific waters in California in the National Toxics Rule 

("NTR"), at§ 131.36. The specific waters to which the NTR criteria apply include: Waters of the 

State defined as bays or estuaries and waters of the State defined as inland, i.e., all surface waters 

of the State not ocean waters. These waters specifically include the San Francisco Bay upstream 

to and including Suisun Bay and the Sacramento-San Joaquin Delta. This section does not apply 

instead of the NTR for this criterion. 

p. No acute criterion applies except as follows. A criterion of 20 μg/L was promulgated for 

specific waters in California in the NTR in the total recoverable form and still applies to waters 

of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin 

Delta; waters of Salt Slough; Mud Slough (north); and the San Joaquin River, Sack Dam to the 

mouth of Merced River. The State of California adopted and the EPA approved site-specific 

acute criteria that still apply to the San Joaquin River, mouth of Merced to Vernalis; Salt Slough; 

constructed and reconstructed water supply channels in the Grassland watershed listed in 

Appendix 40 of the State of California Central Valley Regional Water Quality Control Board 

Basin Plan; and all surface waters that are tributaries to the Salton Sea. 

q. The chronic criterion specified in paragraph (b)(l)(i) of this section applies except as follows. 

A chronic criterion of 5 μg/L was promulgated for specific waters in California in the NTR in the 

total recoverable form and still applies to waters of the San Francisco Bay upstream to and 

including Suisun Bay and the Sacramento-San Joaquin Delta; waters of Salt Slough; Mud Slough 

(north); and the San Joaquin River, Sack Dam to Vernalis. Paragraph (b )(1 )(i) does not apply 

instead of the NTR for these waters. The State of California adopted and the EPA approved a 

site-specific criterion for the Salt Slough, constructed and reconstructed water supply channels in 

the Grassland watershed listed in Appendix 40 of the State of California Central Valley Regional 

Water Quality Control Board Basin Plan, and all surface waters that are tributaries to the Salton 

Sea; therefore, paragraph (b)(l)(i) does not apply to these waters. 

r. These criteria were promulgated for specific waters in California in the NTR. The specific 

waters to which the NTR criteria apply include: Waters of the State defined as bays or estuaries 

including the Sacramento-San Joaquin Delta within California Regional Water Board 5, but 

excluding the San Francisco Bay. This section does not apply instead of the NTR for these 

criteria. 

s. These criteria were promulgated for specific waters in California in the NTR. The specific 
101936 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

(i) California Freshwater Selenium 

Ambient Chronic Water Quality 

Criterion for Protection of Aquatic Life 

and Aquatic-Dependent Wildlife. 

Table 2 to Paragraph (b)(1)(i) 


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waters to which the NTR criteria apply include: Waters of the Sacramento-San Joaquin Delta and 

waters of the State defined as inland (i.e., all surface waters of the State not bays or estuaries or 

ocean) that include a MUN use designation. This section does not apply instead of the NTR for 

these criteria. 

t. These criteria were promulgated for specific waters in California in the NTR. The specific 

waters to which the NTR criteria apply include: Waters of the State defined as bays and estuaries 

including San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San 

Joaquin Delta; and waters of the State defined as inland (i.e., all surface waters of the State not 

bays or estuaries or ocean) without a MUN use designation. This section does not apply instead 

of the NTR for these criteria. 

u. PCBs are a class of chemicals which include aroclors 1242, 1254, 1221, 1232, 1248, 1260, 

and 1016, CAS numbers 53469219, 11097691, 11104282, 11141165, 12672296, 11096825, and 

1267 4112, respectively. The aquatic life criteria apply to the sum of this set of seven aroclors. 

v. This criterion applies to total PCBs, e.g., the sum of all congener or isomer or homolog or 

aroclor analyses. 

w. This criterion has been recalculated pursuant to the 1995 Updates: Water Quality Criteria 

Documents for the Protection of Aquatic Life in Ambient Water, Office of Water, EP A-820-B96-001, September 1996. See also Great Lakes Water Quality Initiative Criteria Documents for 

the Protection of Aquatic Life in Ambient Water, Office of Water, EPA-80-B-95-004, March 

1995. 

x. The State of California has adopted and the EPA has approved site specific criteria for the 

Sacramento River (and tributaries) above Hamilton City; therefore, these criteria do not apply to 

these waters. 

y. The State of California adopted and the EPA approved a site-specific criterion for New Alamo 

Creek from Old Alamo Creek to Ulatis Creek and for Ulatis Creek from Alamo Creek to Cache 

Slough; therefore, this criterion does not apply to these waters. 

z. The State of California adopted and the EPA approved a site-specific criterion for the Los 

Angeles River and its tributaries; therefore, this criterion does not apply to these waters. 
Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 101937 

BILLING CODE 6560–50–C 

(ii) Priority toxic pollutants. Table 1 to 

this paragraph (b)(1) lists all of the 

EPA’s priority toxic pollutants whether 

or not criteria guidance are available. 

Blank spaces indicate the absence of 

national criteria guidance under CWA 

section 304(a). Because of variations in 

chemical nomenclature systems, this 

listing of toxic pollutants does not 

duplicate the listing in appendix A to 40 

CFR part 423. The EPA has added the 

Chemical Abstracts Service (CAS) 

registry numbers, which provide a 

unique identification for each chemical. 

(iii) Criteria recommendations not 

included in table 1 to this paragraph 

(b)(1). The following chemicals have 

organoleptic-based criteria 

recommendations that are not included 


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8.5 mg/kgdw 

whole-body 

1.5 μg/L in lentic 

or aquatic systems WQCint = 15.1 mg/kg dw 

11.3 mg/kg dw 3 .1 μg/L in lotic WQC30-day - cbkgrnd(l - lint) muscle aquatic systems 

lint (skinless, 

boneless filet) 

Instantaneous Instantaneous Instantaneous 30 days Number of days/month with an 

measurement7 measurement7 measurement7 elevated concentration 

Not to be Not to be Not more than Not more than once in three years once in three exceeded exceeded exceeded on average years on average 

1. Fish tissue criterion elements are expressed as steady-state. 

2. Fish egg-ovary supersedes any whole-body, muscle, or water column criterion elements for aquatic life when fish egg-ovary are 

measured, except as noted in footnote 4. Bird egg supersedes water column criterion elements for aquatic-dependent wildlife when 

bird eggs are measured, except as noted in footnote 4. The bird tissue criterion element is independently applicable from and 

equivalent to the fish tissue criterion elements. 

3. Fish whole-body or muscle tissue supersedes the water column criterion elements when both fish tissue and water concentrations 

are measured, except as noted in footnote 4. 

4. Water column criterion elements are based on dissolved total selenium in water and are derived from fish tissue and bird tissue 

criterion elements via bioaccumulation modeling. When selenium inputs are increasing, water column criterion elements are the 

applicable criterion elements in the absence of steady-state condition fish tissue or bird tissue data. 

5. The water column criterion element, which applies independently to the respective aquatic life and aquatic-dependent wildlife uses, 

is applicable for all CW A purposes and consists of a water column value of 1.5 μg/L in lentic aquatic systems and 3 .1 μg/L in lotic 

aquatic systems unless or until a site-specific water column criterion element is derived for a particular waterbody following the 

methodology described in Method for Translating Selenium Tissue Criterion Elements into Site-specific Water Column Criterion 

Elements for California, Version 2, December 2024. This publication is incorporated by reference into this section with the 

approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available at 

EPA, OW Docket, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC, 20004; phone: (202) 566-2426; website: 

https://www.epa.gov/wqs-tech/water-quality-standards-establishment-numeric-criterion-selenium-:fresh-waters-california. It is also 

available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this 

material at NARA, visit www.archives.gov/federal-registerlcfr/ibr-locations or emailfr.inspection@nara.gov. 

6. Where WQC3o-day is the applicable water column monthly criterion element, Cbkgrnd is the average background selenium 

concentration, and fint is the fraction of any 30-day period during which elevated selenium concentrations occur, with fint assigned a 

value 2':0.033 (corresponding to 1 day). 

7. Fish tissue and bird tissue data provide instantaneous point measurements that reflect integrative accumulation of selenium over 

time and space in bird or fish population(s) at a given site. 
101938 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

in table 1: zinc, 3-methyl-4- 

chlorophenol. 

(iv) Freshwater and saltwater aquatic 

life criteria. Freshwater and saltwater 

aquatic life criteria apply as specified in 

paragraph (c)(3) of this section. 

* * * * * 

(c) * * * 

(3) * * * 

(ii) For waters in which the salinity is 

equal to or greater than 10 parts per 

thousand 95% or more of the time, the 

applicable criteria are the saltwater 

criteria in column C, except for 

selenium in waters of the San Francisco 

Bay upstream to and including Suisun 

Bay and the Sacramento-San Joaquin 

Delta where the applicable criteria are 

the freshwater criteria in column B of 

the National Toxic Rule (‘‘NTR’’) at 

§ 131.36. 

(iii) For waters in which the salinity 

is between 1 and 10 parts per thousand 

as defined in paragraphs (c)(3)(i) and (ii) 

of this section, the applicable criteria 

are the more stringent of the freshwater 

or saltwater criteria, except for selenium 

in waters of the San Francisco Bay 

upstream to and including Suisun Bay 

and the Sacramento-San Joaquin Delta 

where the applicable criteria are the 

freshwater criteria in column B of the 

NTR. However, the Regional 

Administrator may approve the use of 

the alternative freshwater or saltwater 

criteria if scientifically defensible 

information and data demonstrate that 

on a site-specific basis the biology of the 

water body is dominated by freshwater 

aquatic life and that freshwater criteria 

are more appropriate; or conversely, the 

biology of the water body is dominated 

by saltwater aquatic life and that 

saltwater criteria are more appropriate. 

Before approving any change, the EPA 

will publish for public comment a 

document proposing the change. 

* * * * * 

[FR Doc. 2024–29483 Filed 12–16–24; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 174 

[EPA–HQ–OPP–2022–0231; FRL–12399–01– 

OCSPP] 

Brevibacillus Laterosporus 

Mpp75Aa1.1 and Bacillus 

Thuringiensis Vpb4Da2 Proteins; 

Exemptions From the Requirement of 

a Tolerance 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This regulation establishes 

exemptions from the requirement of a 

tolerance for residues of the 

Brevibacillus laterosporus Mpp75Aa1.1 

and Bacillus thuringiensis Vpb4Da2 

proteins (hereafter Mpp75Aa1.1 and 

Vpb4Da2 proteins) in or on the food and 

feed commodities of corn: corn, field; 

corn, sweet, and corn, pop when used 

as plant-incorporated protectants (PIP) 

in corn. Bayer CropScience LP., 

submitted a petition to EPA under the 

Federal Food, Drug, and Cosmetic Act 

(FFDCA), requesting these exemptions. 

These regulations eliminate the need to 

establish maximum permissible levels 

for residues of Mpp75Aa1.1 and 

Vpb4Da2 proteins. 

DATES: This regulation is effective 

December 17, 2024. Objections and 

requests for hearings must be received 

on or before February 18, 2025, and 

must be filed in accordance with the 

instructions provided in 40 CFR part 

178 (see also Unit I.C. of the 

SUPPLEMENTARY INFORMATION). 

ADDRESSES: The docket for this action, 

identified by docket identification (ID) 

number EPA–HQ–OPP–2022–0231, is 

available at https://

www.regulations.gov. Please review the 

visitor instructions and additional 

information about the docket available 

at https://www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Madison Le, Biopesticides and Pollution 

Prevention Division (7511M), Office of 

Pesticide Programs, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave. NW, Washington, DC 20460–0001; 

main telephone number: (202) 564– 

5754; email address: BPPDFRNotices@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does this action apply to me? 

You may be potentially affected by 

this action if you are an agricultural 

producer, food manufacturer, or 

pesticide manufacturer. The following 

list of North American Industrial 

Classification System (NAICS) codes is 

not intended to be exhaustive, but rather 

provides a guide to help readers 

determine whether this document 

applies to them. Potentially affected 

entities may include: 

• Crop production (NAICS code 111). 

• Animal production (NAICS code 

112). 

• Food manufacturing (NAICS code 

311). 

• Pesticide manufacturing (NAICS 

code 32532). 

B. How can I get electronic access to 

other related information? 

You may access a frequently updated 

electronic version of 40 CFR part 174 

through the Office of the Federal 

Register’s e-CFR site at https://

www.ecfr.gov/current/title-40/chapter-I/ 

subchapter-E/part-174. 

C. How can I file an objection or hearing 

request? 

Under FFDCA section 408(g), 21 

U.S.C. 346a(g), any person may file an 

objection to any aspect of this regulation 

and may also request a hearing on those 

objections. You must file your objection 

or request a hearing on this regulation 

in accordance with the instructions 

provided in 40 CFR part 178. To ensure 

proper receipt by EPA, you must 

identify docket ID number EPA–HQ– 

OPP–2022–0231, in the subject line on 

the first page of your submission. All 

objections and requests for a hearing 

must be in writing and must be received 

by the Hearing Clerk on or before 

February 18, 2025. Addresses for mail 

and hand delivery of objections and 

hearing requests are provided in 40 CFR 

178.25(b). 

In addition to filing an objection or 

hearing request with the Hearing Clerk 

as described in 40 CFR part 178, please 

submit a copy of the filing (excluding 

any Confidential Business Information 

(CBI)) for inclusion in the public docket. 

Information not marked confidential 

pursuant to 40 CFR part 2 may be 

disclosed publicly by EPA without prior 

notice. Submit the non-CBI copy of your 

objection or hearing request, identified 

by docket ID number EPA–HQ–OPP– 

2022–0231, by one of the following 

methods: 

Federal eRulemaking Portal: https://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Do not submit electronically any 

information you consider to be CBI or 

other information whose disclosure is 

restricted by statute. 

Mail: OPP Docket, Environmental 

Protection Agency Docket Center (EPA/ 

DC), (28221T), 1200 Pennsylvania Ave. 

NW, Washington, DC 20460–0001. 

Hand Delivery: To make special 

arrangements for hand delivery or 

delivery of boxed information, please 

follow the instructions at https://

www.epa.gov/dockets/where-sendcomments-epa-dockets. 

Additional instructions on 

commenting or visiting the docket, 

along with more information about 

dockets generally, is available at https:// 

www.epa.gov/dockets. 


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