EPA-8Z3-E-85-160
Tuesday
Movernber 8, 1983
Part
f
Waiter Quality Standards Regulation
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51400 Federal Register / Vol. 48, No. 217 / Tuesday, November 8, 1983 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 35,120, and 131
[WH-FRL 2466-3]
Water Quality Standards Regulation
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: This Regulation revises and
consolidates in a new Part 131 the
existing regulations now codified in 40
CFR Parts 120 and 35 that govern the
development, review, revision and
approval of water quality standards
under Section 303 of the Clean Water
Acl (the Act). The Regulation was
revised to reflect the experiences gained
in the program by both EPA and the
States. More explicit information is
Included in the Regulation on what EPA
expects as part of State water quality
standards reviews. The Regulation also
clarifies that in promulgating Federal'
standards.JSPA is subject to the same
requirements as the States.
EFFECTIVE DATE: December 8,1983.
FOR FURTHER INFORMATION CONTACT:
David K. Sabock, Environmental
Protection Agency, Chief, Criteria
Branch (WH-585), 401M Street SW.,
Washington, 20460 (202) 245-3042.
SUPPLEMENTARY INFORMATION: The
Environmental Prptection Agency (EPA)
proposed changes to 40 CFR 120 and 35
on October 29,1982 (47 FR 49234) and
invited co.mments until February 10,
1983. Eleven public meetings were held
nationwide on the proposed revisions.
Nine hundred twenty people attended
those meetings. EPA received 1405
letters and statements on the proposal
prior to the closing of the public
comment period. Comments received on
the proposed Regulation may be
inspected 'at the Environmental
Protection Agency, Room 2818M, 401M
Street, SW., Washington, D.C. 20460
during the Agency's normal working
hours of 8:00 a.m. to 4:30 p.m. For further
Information contact the individual listed
above.
Information in this preamble is
organized as follows:
A. Major changes made? in the Proposed Rule
B, Regulatory Impact Analyses, Regulatory
Flexibility Act and Paperwork Reduction.
Act Requirements
C. Us! of Subjects in 40 CFR 131
Appendix AResponse to Public Comments
A. Major Changes Made in the Proposed
Regulation
The major additions and deletions
made in the proposed Rule are
discussed in this section. We have also
included a table summarizing all the
changes.
Commitment to the Goals of the Clean
Water Act
Several changes were made in the
Regulation to reassure the public that
EPA is committed to achieving the goals
of the Act. EPA accepted the
recommendations for including
regulatory language explicitly affirming
EPA's commitment to have standards
move toward the Section 101(a)(2) goals
of the Act and to use standards as a
basis of restoring and maintaining the
integrity of the Nation's waters.
A "Purpose" section (§ 131.2) has
been added to the Regulation. The
Purpose states that standards are to
protect public health or welfare,
enhance the quality of water and
provide water quality for the protection
and propagation of fish, shellfish and
wildlife and recreation in and on the
water, as well as for agricultural and
industrial purposes and navigation. In
addition, this section describes the dual
role of water quality standards in
establishing the water quality goals for a
specific water body and in serving as
the regulatory basis for the
establishment of water quality based
treatment controls and strategies
beyondHhat level of treatment required
by sections 301(b) and 306 of the Act.
The final regulation also clarifies that
when a State changes the designated
uses of its waters such that the uses of
the water body do not include the uses
. specified in the Section 101(a)(2) goals
of the Act (i.e., the protection and
propagation of fish, shellfish, and
wildlife and recreation in and on the
water), the State will have to
demonstrate, through a use attainability
analysis, that these uses are not
attainable based on physical,,chemical,
biological or economic factors. This use
attainability analysis is required for-
future changes that the State may make
and for previous actions that the State
took, to designate uses for a water body
which did not include the uses specified
in Section 101(a)(2). Where water
quality improvements result in new
uses, States must revise their standards
to reflect these new uses (See
§ 131.10{i)). This provision continues an
existing EPA requirement although it
was omitted from the proposed
Regulation. ,
In addition, as discussed below, we
have revised the proposed .
Antidegradation Policy to provide
special protection for high quality
waters and waters which constitute an
.outstanding National resource (See
§ 131.12) and we have eliminated the
benefit-cost analysis.
We believe that these and other
changes and clarifications in the Final
Rule demonstrate EPA's commitment to
the objectives, goals and spirit of the
Clean Water Act.
Changes in Uses
The provisions included in
§ 131.10(h)(l)-(6) of the proposed
Regulations, which dealt with
circumstances under which uses could
be changed, received substantial
comment. Many commenters objected
that the change in the phrase "States
must demonstrate" to "States must
determine" that certain conditions exist
would mean that EPA would require less
rigorous analyses for changing a use.
They indicated that "determine" merely
connotates a political process whereas
"demonstrate" implies substantial proof
supported by exacting analyses. EPA
believes that structure'd scientific and
technical analyses should be required to
justify removing or modifying
designated uses that are included in
Section 101(a)(2) of the Act or to justify
continuation of standards which do not
include these uses, EPA agrees that the
word "demonstrate" better reflects
Agency policy and has made that
change (see § 131.10(g)).
Some commenters asked whether
modifications, in water quality
standards, such as defining a level of
protection for aquatic life or setting
seasonal standards, .were changes in
standards subject to the public
participation requirements of § 131.20(b)
of the regulation. Yes, any modification
or change that a State makes in its
standards is subject.to those
requirements.
Many commenters also objected to
the inclusion of a benefit-cost
assessment in justifying changes in uses.
Historically, economic considerations
have been a part of water quality
standards decisions. Senate Report No.
10 on the Federal Water Pollution
Control Amendments of 1965, 89th
Congress, 1st Session, included the
statement that "Economic, health,
esthetic, and conservation values which
contribute to the social and economic
welfare of an area must be taken into
account in determining the most
appropriate use or uses of a stream".
Section 303(c)(2) of the Act provides that
". .,. standards shall be established
taking into consideration their use and
value for . . ." various water uses.
Under the 1975 regulation governing' the
establishment of standards in Part
§ 35.1550{c)(l), States were to ". . . take
into consideration environmental.
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Federal Register / Vol. 48, No. 217 /-Tuesday, November 8, 1983 / Rules and Regulations 51401
technological, social, economic, and
institutions) factors" in determining the
attainability of standards for any'"" '" \
particular water segment. In addition,, ' ,
there is and has been an economic '
consideration in the antidegrad&H'bh
policy; The Agency recognizes that there
are inherent difficulties in a balancing of
the benefits of achieving the .Section
101(a)(2) goals of the Act with the costs.
As a result, the Agency was persuaded '
that the provision in the existing rule
allowing changes in designated-uses
where there would be substantial and
widespread economic impact better :
reflected the process required by the
Act. For these reasons, the wording of ,
the existing regulation has been
retained. ,
Several commeriters objected to
proposed § 131.10(h)(5) which allowed ;
States to remove or to modify
designated uses which are not
attainable based on physical factors.
After considering the comments, the
Agency decided to limit the reference to
physical factors to aquatic life
protection uses and to clarify the
existing policy.
Physical factors may be important in
evaluating whether uses are attainable.
However, physical limitations of the
stream may not necessarily be an
" overriding factor. Common sense and
good judgment play an important role in
setting appropriate uses and criteria. In
setting criteria and uses, States must
assure the. attainment of downstream
standards. The downstream uses.may
not be affected by the same physical
limitations as the upstream uses. There
are instances where non-water quality.
related factors preclude the attainment
of uses regardless of improvements in
water quality. This is particularly true
for fish and wildlife protection^uses
where the lack of a proper substrate
may preclude certain forms of aquatic
life from using the stream for ..
propagation, or the lack of cover, depth,
flow, pools, riffles or impacts from, . '
channelization, dams,jdiversi|ns,,may '
preclude particular forms of aquatic life
from the stream altogether. EPA
recognizes that while physical factors
also affect the-recreational uses
appropriately designated for a water
body. States need to give consideration
to the incidental uses which inay be
made of the water body. Eye|Hhough it
may not make sense to encotitage use of ;
a stream for swimming because of the
flow, depth or the velocity of the water,
the States and EPA must recognize that
swimming and/or wading may occur
anyway.-In order to protect public.
health, States must set criteria to reflect
recreational uses if it appears that
recreation will in fact occur iri the.
stream.. \ ,!":..
In keeping with the purposes of the
Act, the wording of § 131.iO{h)(4) of the
proposed Rule (now § 131.10(g)(4}) was
modified so that changes in uses could ;
only occur if dams, diversions! or other
types of hydrologic modifications
preclude rather than just interfere with
the attainment of the,designated uses. It
should also be pointed out theit if . ;
physical limitations of the water body .
were used as the basis of not including
uses for a water body that are; specified
in Section 101(a}(2) of the Act; those
physical factors must be reviewed every
three, years. i
While many commenters objected to
the number of reasons the States could
use in justifying changes in uses, the
Agency decided to keep the six factors,
with the changes described above,
because they better explain when
changes may be made. The te^se
wording of the existing Rule does not
adequately explain when changes can
be made. . " !
A number of comments related to use
attainability.analyses. In demonstrating
that a use" is hot attainable, States will
be required to prepare and submit to
EPA a use attainability analysiis. A use
attainability analysis is a multi-step
scientific assessment of the physical,
. chemical, biological and economic
factors affecting the attainment of a use.
It includes a water body survey and
assessment, a wasteload allocation, and
an economic analysis,1 if appropriate.
A water body survey and assessment
examines the physical, chemical and
biological characteristics of the water
body to: identify and define the existing
uses of that water body; determine
whether the designated uses in the State
water quality standards are impaired,
and the reasons for the impairment; and
. assist States in projecting the potential
uses that the water body could support
in the absence of pollution. A wasteload
allocation utilizes mathematical models
to predict the amount of reduction
necessary in pollutant loadings to
.achieve the designated use. Economic
analyses are appropriate in deiterminirig
whether the more stringent requirements
would cause substantial and ,
widespread economic and social impact.
These analyses should address the
, incremental effects of water quality
standards beyond technology-based or
other State requirements. The Agency's '
guidance suggests that States consider
effects due to compliance by FJrivate and
municipal dischargers. If the
requirements are not demonst ated to
have a substantial and widesp read
impact on the affected community, the
standard must be maintained or made
qdmpatible with the goals of the Act.; ;
There was considerable comment on
whether the use attainability analyses
should be required, and if so when. In
keeping with section 510 of the Act, EPA
is not requiring States .to conduct and
submit a use attainability analysis if
adding a use specified in Section
l01(a)(2J of the Act or a use requiring
more stringent criteria. In the final rule,
EPAis requiring that States conduct and
submit to EPA a use attainability
analysis if the State (a) is designating
uses for the water body such that the ,
water body will not have all uses which
are included in Section. 101 (aj(2) of the
. Act, (b) maintaming'uses for the water
body which do not include all of the
uses in Section 101[a)(2) of the Act, (c)
removing a use included,in Section
101(a) (2) of the Act or (d) modifying a.
use included in Section 101(a)[2) of the
Act to require less stringent criteria. A
State need only conduct a use :
attainability once for a given water
body and set of uses. During subsequent
triennial review, .States will be required
to review the basis of not including uses
for-the water body that are specified in
Section 101(a)(2) of the Act to show that
circumstances have not changed and
that protection and propagation of fish,
shellfish and Wildlife and/or recreation
in and on the water'remain
unattainable. If such uses have become
attainable, the standard must be revised
accordingly (See § 131.20(a)}; However,
States may wish to conduct a use
attainability analysis, even where not
required, if they believe that there will .
be questions as to whether the
protection and propagation of fish,
shellfish and wildlife and recreation in
and on the water is, in fact, attainable.
The guidance on conducting the water
body survey and assessment is included
in the Water Quality Standards ;
Handbook. The earlier draft of the
Handbook has been revised and
expanded. Test cases illustrating the
water body survey and assessment
guidance have been completed and are
included in the Handbook. In addition,
the Agency has published a Technical
Support Manual: Water Body Surveys
and Assessments for Conducting a Use
Attainability Analyses. These ~
publications may be obtained by writing
or calling David K. Sabock at the
address and phone number listed under
FOR FURTHER INFORMATION CONTACT.
By publishing guidance on conducting
use attainability analyses, EPA is not .-
requiring that specific approaches,
methods or procedures be used. Rather,
States are encouraged to consult with
EPA early in the process to agree on
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Federal Register / Vol. 48. No. 217 / Tuesday, November 8, 1983 / Rules and Regulations
appropriate methods and procedures for
conducting any of the analyses before
the analyses are initiated and carried
out. States will have the flexibility of
tailoring the analyses to the specific
water body being examined-as long as
the methods used are scientifically and
technically supportable.
EPA will review the adequacy of the
data, the suitability and appropriateness,
of the analyses and how the analyses
were applied. In cases where the
analyses are inadequate, EPA will
identify how the analyses need to be
improved and will suggest the type of
evaluation or data needed. When the
State has initially consulted EPA on the
analyses to be used, EPA will be able to
expedite its review of the State's
analyses of any new or revised State
standard.
Criteria
EPA has revised the sectiop Qn
criteria (§ 131.12 in the proposal;
renumbered to § 131.11 in the final rule)
in several respects. First, EPA has
accepted the recommendation that the
phrase "criteria are compatible with"
protecting a designated use is confusing,,
and unnecessary and should be
removed. The provision now reads:
"States must adopt those water quality
criteria that protect the designated use."
In addition, EPA consolidated parts of
the provisions and stated more
concisely the basis of EPA's review of
the appropriateness of State criteria.
Section 131.11(a) now reads: "Such
criteria must be based on sound
scientific rationale and must contain
sufficient parameters or constituents to
protect the designated use. For waters
with multiple use designations, the
criteria shall support the most sensitive
use," eliminating the need for proposed
5 131,12(c) (l)-{3).
A number of comments concerned
criteria for toxic pollutants. Some
questioned EPA's commitment to
controlling toxic pollutants based on the
fact that EPA was not "requiring" States
to adopt specific numerical toxic
pollutant criteria. EPA has made a
number of changes to more clearly
reflect our commitment. For example,
EPA Has tried to restructure
§ 131.11(a){2) on toxic pollutants to
assist States in providing the most
effective control of toxic pollutants as
possible. All States have a requirement
in their standards that their waters be
free from toxic pollutants in toxic
amounts. States are to review their
water quality data and information on
discharges to identify specific water
bodies where toxic pollutants may be
adversely impacting water quality or the
designated uses or where the level of a
toxic pollutant in the water is at a level
to warrant concern. States are expected
to conduct such reviews beginning with
an in-depth analysis of water bodies
with known toxic pollutant problems.
States are to adopt numerical or
narrative criteria for those toxic
pollutants of concern. Numerical criteria
are appropriate where a few specific
pollutants have been identified as the
concern, or where human health rather
than aquatic life is the controlling factor.
To implement such criteria, models are
used to translate the specific criterion
on a chemical-by-chemical basis into a
wasteload allocation to obtain a specific
permit limit.
However, where the effluent or
ambient conditions are complex, due to
multiple dischargers or multiple
pollutants, toxic pollutant limits may be
more appropriately, set through narrative
criteria (such as the "free from
statements"). Where narrative criteria
are adopted, the State should indicate as
part of its water quality standards
submission, how it intends to regulate
the discharge of the toxic pollutants.
Biological monitoring is one mechanism
to test compliance with "free from"
narrative criteria. Biological monitoring
may include periodic sampling of the
ecosystem, trend monitoring and/or
periodic bioassays using the effluent.
Acute and chronic tdxicity testing
methods have been developed that
enable a permit writer to ensure that the
discharge will not be toxic to aquatic
life. When using biological monitoring to
test compliance with narrative criteria,
reference should be made to the
maximum acceptable levels of toxicity
and the basic means by which these
levels are to be measured or otherwise
determined.
Both the pollutant-by-pollutant and
biological methods are being refined and
need to be applied in a conservative
fashion. They hold great promise and
are relatively inexpensive. In many
cases a combination of biological
monitoring and a chemical-by-chemical
approach will provide the best toxic
pollutant control.
Finally, a number of comments dealt
with site-specific criteria. It was x
apparent from the comments that some
commenters had the mistaken
impression that EPA was advocating
that States use site-specific criteria
development procedures for setting all
criteria as opposed to using the national
Section 304{a) criteria. Site-specific
criteria development procedures are not
needed in all situations. Many of the
procedures are expensive. Site-specific
criteria development appears most
appropriate on water quality limited
water bodies where:
Background water quality
parameters, such as pH, hardness
temperature, suspended solids, etc.,
appear to differ significantly from the
laboratory water used in developing the
Section 304(a) criteria; or
The types of local aquatic
organisms in the region differ
significantly from those actually tested
in developing the Section 304(a) criteria.
The protocols for establishing site-,
specific criteria, as well as the test cases
illustrating use of the protocols, are
includedJn the Water Quality
. Standards Handbook. EPA also has a
limited number of copies of
Recalculation of State Toxic Criteria
using the family recalculation procedure.
These publications may be obtained by
writing or calling David K. Sabock at the
address and phone number listed under
FOR FURTHER INFORMATION CONTACT at
the beginning of this Rule.
Antidegradation Policy
The preamble to the proposed rule
discussed three options for changing the
existing antidegradation policy. Option
1, the proposed option, provided simply
that uses attained would be maintained.
Option 2 stated that not only would uses
attained be maintained but that high
quality waters, i.e. waters with quality
better than that needed to protect fish
and wildlife; would be maintained (that
is, the existing antidegradation policy
minus the "outstanding natural resource
waters" provision). Option 3 would have
allowed changes in an existing use if
maintaining that use would effectively
prevent any future growth in the
community or if the benefits of
maintaining the use do not bear a
reasonable relationship to the costs.
Although there was support for
Option 2, there was greater support for
retaining the full existing policy,
including the provision on outstanding
National resource waters. Therefore,
EPA has retained the existing
antidegradation policy (Section 131.12)
because it more accurately ^reflects the
degree of water quality protection
desired by the public, and is consistent
with the goals and purposes of the Act.
In retaining the policy EPA made four
changes. First, the provisions on
maintaining and protecting existing
instream uses and high quality waters
were retained, but the sentences stating
that no further water quality
degradation which would interfere with
or become injurious to existing instream
uses is allowed were deleted. The
deletions were made because the terms
"interfere" and "injurious" were subject
to misinterpretation as precluding any
activity which might even momentarily
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add pollutants to the water, Moreover,
. we believe the deleted sentenqe was
intended merely as a restatement of the
basic policy. Since the rewritten
provision, with the addition of a phrase
on water quality described hi the next
sentence, stands alone as expressing the
basic thrust and intent of the
antidegradation policy, we deleted the
confusing phrases. Second, in
§ 131.12(a)(l) a phrase was added
- requiring that the level of water quality
necessary to protect an existing use be
maintained and protected. The previous
policy required only that an existing use
be maintained. In § 131.12(a)(2) a phrase
was added that "In allowing such
degradation or lower water quality, the
State shall assure water quality
adequate to protect existing uses fully".
This means that the full use must
continue to exist even if some change in
water quality may'be permitted. Third,
in the first sentence of § 131.12(a)(2) the
wording was changed from "...
significant economic or social
development. . ." to ". . . important
economic or social development. . . '."
In the context of the antidegradation
policy the word "important" strengthens
the intent of protecting higher quality
waters. Although common usage of the
words may imply otherwise, the correct
definitions of the two terms indicate that
the greater degree of environmental
protection is afforded by the word
"important."
Fourth, § I31.12(a)(3) dealing with the
designation of outstanding National
resource waters (ONRW) was changed
to provide a limited exception to the
absolute "no degradation" requirement.
EPA was concerned that waters which
properly could have been designated as
ONRW were not being so designated
because of the flat no degradation
provision, and therefore were not being
given special protection. The no
degradation provision was sometimes
interpreted as prohibiting any activity
{including temporary or short-term) from
being conducted. States may allow some
limited activities which result in
temporary and short-term changes in
water quality. Such activities are
considered to he'cpnsistent with the ,
intent and purpose of an ONRW.
Therefore, EPA has rewritten the
provision to read -". . . that water
quality shall be maintained and
protected," and removed the phrase "No
degradation shall be allowed. . . ."
In its entirety, the antidegradation . '
policy represents a three-tiered
approach to maintaining and protecting
various levels of water quality and uses.
At its base (Section 131ti2{a)(l)), all
existing uses and the level of water
quality necessary to proteclffhose uses
must be maintained and protected. This
provision establishes the absolute floor
of water quality in all waters :of the
United States." The second level (Section
131.12(a)(2)) provides protection of
actual water quality in area's where the,
quality of the waters exceed levels
necessary to support propagation of fish,
shellfish, and wildlife and recreation in
and on the water ("fishable/
swimmable"). There are provisions
contained in this subsection' to allow
some limited water quality degradation
after extensive public involvement, as
long as the water quality remains
adequate to be "fishable/swimmable."
Finally § 131.23(a)(3) provides special
protection of waters for which the
ordinary use classifications and water -
quality criteria dp not suffice, denoted
"outstanding National resource water."
Ordinarily most people view this
subsection as protecting ami
maintaining the highest quality waters
of the United States: that is clearly the
thrust of the provision. It does, however,
also offer special protection for waters
of "ecological significance." These are
water bodies which are important,
unique, or sensitive ecologically, but
whose water quality as measured by the
traditional parameters (dissolved
oxygen, pH, etc.) may not be particularly
high or whose character cannot be
adequately described by these
parameters. _ ;
General Policies - j~ ' ;
Except for a general statement that
States may adopt policies affecting the
application and implementation of
standards and that such policies are
subject to EPA review and approval, all
other elements of proposed Section
131.13 have been deleted, including the
detailed statements on mixing zones,
low flow exemptions, and variances.
Specific subsections on mixing zones,
low flow exemptions and variances
were deleted because, as the public
comments suggested, they were not
regulatory in nature and therefore were
more appropriately addressed in
guidance. More detailed information on
these subjects is included as guidance in
the Water Quality Standards -
Handbook. ]..
Many objected to the temporary
variance policy because it appeared to
be outside the normal water quality
standards setting process and because
the test for granting a variance was
different from that applied to changing a
designated use. While a variance does
not change a standard perse1, there was
concern that such a policy would
stimulate "pollution shopping" or would
unfairly penalize firms that ha.d
managed their operations to maintain a
profit While installing pollution control
equipment, to the advantage of those -
thathadnot. : " ; '. '
EPA has approved State-adopted
variances in the past and will continue
to do so if: each individual variance is
included as part of the water quality
standard, subject to the same public
review as other changes in water quality
standards and if each individual
variance is granted based on a
demonstration that meeting the standard
would cause substantial and
widespread economic and social impact,
the same test as if the State were
changing a use based on substantial and
widespread social and economic impa.ct.
EPA. will review for approval individual
variances, not just an overall State
variance policy. A State may wish to
include a variance as part of a water
quality standard rather than change the
standard because the State believes that
the standard ultimately can be attained.
By maintaining the standard rather than
changing it, the State will assure further,
progress is made in improving water
quality and attaining the standard. With
the variance provision, NPDES permits
may be written such that reasonable
progress is made toward attaining the '
standards without violating Section
402(a)(l) of the Act which states that
NPDES permits must meet the
applicable water quality standards.
State Review
Section 131.20(a) was changed from
the proposal in several respects. These
changes were made in response to the
public's concern that the language, in the
proposed regulation either removed or
diluted the Act's requirement to review
all standards every three years and that
- EPA's proposed regulatory language did
not provide adequate recognition of the
goals of the Act. First, the language on
the 3-year review requirement was '
changed tq read exactly as the Act. It
now reads that "the State shall, from
time to, time, but at leastonee every
three years, hold public hearings for the
purpose of reviewing applicable water
quality standards and, as appropriate,
modifying and adopting standards."
Second, a mandatory review and
upgrading requirement has been added.
On segments with water quality
standards that do not include all of the
uses specified in Section 101(a)(2) of the
Act, States must reexamjne the-basis of
that decision every three years to-
determine whether any new
information, technology, etc. has
become available that would warrant
adding the protection and propagation
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Federal Register / Vol. 48, No. 217 / Tuesday, November 8, 1983 /Rules and Regulations
of fish, shellfish and wildlife and/or
recreation in and on the water.
Third, EPA has retained the concept
of allowing a State to select specific
water bodies for an in-depth review of
the appropriateness of the water quality
standard. This was done in order to
moke maximum use of limited resources
and ensure that the most critical
environmental problems are addressed.
This review could include an
examination of the use, the existing
water quality criteria, and the need for
revised or additional criteria on
segments where the standards are not
projected to be achieved with
implementation of the technology-based
requirements of the Act. Factors which
may cause a State to select a water
body for review include areas where
advanced treatment and combined
sewer overflow funding decisions are .
pending, major water quality-based
permits are scheduled for issuance or
renewal, toxic pollutants have been
identified or are suspected of precluding
the attainment of water quality
standards. This list is not meant to be all
inclusive, and a State may have other
reasons for examining a particular
standard. The procedures established
for identifying and reviewing such water
bodies should be incorporated into the
State's Continuing Planning Process.
There were numerous comments
either advocating mechanisms to ensure
the right of dischargers to petition the
State .to review particular standards or
advocating the burden of proof be on the
discharger to justify any changes in
standards. EPA does not believe that it
should dictate particular administrative
mechanisms that States use to initiate
the review of standards on particular
water bodies. However, we do believe
that whatever mechanism the State
uses, it should be .made known to the
public and included in the State's
Continuing Planning Process document..
SUMMARY OF THE CHANGES MADE IN THE PROPOSED REGULATION
Session
No. *
m«
proposed
regwrtiofi
131.1
131,2
131,3
131.4
.
1315
131 10
131 11
131 12
131 13
U120
Section
No m
the final
regulator)
131.1
131,2
131,3
131.4
131.5
131,6
131.10
, . .,,..., ,.,..
131,11
131,12
13113
13120
Title
Scope
Purpose .«~M...-~.
*
Definitions,.., .,..
State Authority
EPA Authority. ..
Minimum
" Requirements
for Water
Quality Stds.
Submissions.
Designation of
Uses,
Analyses for
Changing or
Modifying Uses.
Criteria ........._....
Antidegradation
Policy,
General Policies
State Review and
Revision of
Water Quality
Standards.
Summary of changes
No change made.
New section Purpose, Defines the dual purpose of water quality standards. Standards establish the water quality goals for a specific water body
and serve as a regulatory basis for the establishment of water quality based controls beyond the technology requited under the Act consistent
with Section 101 (a)(2) and 303(c) of the Act
Minor changes made in the definitions of "criteria", "Section 304 (a) criteria" and "water quality standards". Definition of "uses" and "attain" were
removed. A definition of a "Use Attainability Analysis" was added.
Word "reviewing" added to sentence "States are responsible for reviewing, establishing and revising water quality standards.
The wording of this section has been slightly revised to show that EPA mafes a determination of "whether" State standards meet the five criteria.
Subsection (c) revised to read "whether the State has followed its legal procedures for revising or adopting standards.
Subsection (d) modified to read "whether the State standards are based on appropriate technical and scientific data and analyses" rather than
whether the decision making process is based on appropriate technical and scientific data and analyses. ' .
Subsection (e) added to Include minimum requirements for State submission.
Under (d) the statement now reads: "An Antidegradation policy consistent with § 131.12."
Under (e) after Attorney General the phrase "or other appropriate legal authority within the State" was added
Statement added to (a) prohibiting designating a stream for waste transport or assimilation.
Added a new (b) that in designating uses of a water body and the appropriate criteria. States are to ensure the attainment and .maintenance o>.
downstream standards.
Removed (c). The Antidegradation Policy is now described In §-131.12.
Section (b) renumbered (c). removed (e), Section (0 renumbered (e), and Section (g) renumbered (f).
Paragraph (h) now (g) has been changed. It now requires that a State must demonstrate that the designated use, which is not an existing use. is
not attainable. Items 4 and 6 were also reworded. Item 4 now reads that changes in uses can be justified if dams, diversions or other types of
hydrologlc modifications preclude the attainment of a use rather than just interfere with the attainment of a use. Item 5 limits the consideration
of physical factors to aquatic life protection uses. Item 6 has been totally changed. It now reads that changes in uses can be made if controls
more stringent than those required by Section 301 (b) and 306 of the Act would result in substantial and widespread economic and social impact.
In paragraph (i) now (h), (2) and (3) are consolidated. Subparagraph (4) has been eliminated because of the revision to the Antidegradation Policy
(see § 131.12). Subparagraph (5) now appears in § 131.6(b).
Now paragraph (i) requires States to revise their standards to reflect improvements in water quality.
In paragraph (j). EPA has defined that States must conduct a, Use Attainability Analysis if designating uses not specified in Section 101(a)(2) of the
Act. when removing a use specified in Section 101(a)(2) or if modifying uses specified in Section 101(a)(2) by requiring less stringent criteria.
Paragraph (k) clarifies that States are not required to conduct a Use Attainability Analysis when designating uses specified in Section 101(a)(2)
of the Act
EBmated.
\ . " ' -\
~ .
Eliminated, .'.,',
Under (a)(1) the phrase "are compatible with" has been removed and following the first sentence the following has been added: "Sjch criteria
must be based on sound scientific rationale and must contain sufficient parameters or constitutents to protect the designated use. For water
with multiple use designations, the criteria shall support the most sensitive use." '
Subparagraph (a){2) has-been revised to read that States must review water quality data and information and where toxic pollutants may be-
adversely affecting the attainment of the water quality or the attainment of the designated use or where the levels of toxic pollutants are at 3,
level to warrant concern must adopt criteria for the toxic pollutants. Where States adopt narrative criteria for toxic pollutants, the State must
adopt a policy indentifying the method by. which the State intends to regulate point source discharges based on such narrative criteria.
Subparts (b)(2) and (3) were combined.
Paragraph (c) has been removed because the concepts are now included in paragraph (a).
The Antidegradation Policy found in the former 40 CFR 35.1550{e) has been adopted into the final Regulation with several modifications. The
phrase "interfere with or become injurious to" was removed, a phrase was added in (a)(1), (2), and (3) to maintain and protect instream water
quality to protect existing uses. In (a){2) "important" replaces "significant" In the phrase on economic and social development, and "no
degradation" was deleted from (a){3'&. , . ,
Paragraph (a) revised to darily that General Policies if adopted are to be included in a State's water quality standards and are subject to EPA
review and approval. ' -
Subsections (b){c){d) removed. ( .
Paragraph (a) State Review has been rewritten to track the wording in the Act on the three year review of water quality standards. States are
required to review every three years State standards on segments that do not include uses specified in Section 101(a){2) of the Act to
. determine whether these standards are still appropriate. Finally a statement has been added that procedures States use to identify water bodies
for review should be Incorporated into their. Continuing Planning Process document. . , . *
Under paragraph, (c) after 30 days we added a phrase, "of the firjal State action to adopt and certify" to clarify when the 30 day time period starts
-------
/ Vol. 48, No. 217 / Tuesday. November 8, 1983 /Rules and Regulations 52405
SUMMARY OF THE CHANGES MADE IN THE PROPOSED REGULATIONContinued
Section
No in
the
proposed
regulation
' 131.21
1 131.22
Section
;.Nd.in
. the lirial; ,
regulation'
131.21
,131.22
'
Title '. ;.
EPA Revtew and
Approval of
Water- Qualify
. Standards. .
EPA 'Promulgation
of Water Quality
Standards.
'
1 ': , ' ': . ;.. ' -rl i
;r v Summary of changes ,
No Change.
Paragraphs (a) and (b) were clarified to indicate. Administrator .may, promulgate as well as just propose standards.
Under paragraph (o). a requirement was added 'that EPA Srprbmulgating water quality standards is also subject to 'the pubiic participation
requirements of this Regulation. .'- ,1 ',;,-: .; ,-,' , , ' ~. -,"
. B. Regulatory Impact Analysis and
Regulatory Flexibility Analysis and
Paperwork Reduction"Act Requirements
Under Executive Order 12291, EPA
must judge whether a Regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
Analysis. It is difficult for EPA to assess
the likely net cost of this Regulation
because of the offsetting character of its
basic provisions; The Regulation does
establish, new obligations on the States
fdr control of toxic pollutants. However,
the Regulation also increase the ability
of the States" to determine the
attainability of stream uses, to set site-
specific criteria sufficient to protect
those uses, and to focus limited State
and Federal resources on reviewing
standards for priority water quality
limited segments. These changes are
designed to enable States to better use
water quality standards as a pragmatic
tool in improving water quality where .
necessary to protect water uses. For
these reasons the Agency judges this not
to be a major Regulation under
Executive Order 12291,
This notice was submitted to the
Office of Management and Budget
(OMB) for review as required by
Executive Order 12291. Any.cpfnmerits
from OMB to EPA and any EPA
response to those comments are
available for public inspection through
contracting the person listed at the
beginning of this notice.
. Under the Regulatory Flexibility Act, 5
U.S.C. Section 601 et seq., EPA must
prepare a Regulatory Flexibility
Analysis for all proposed regulations
that have a significant impact on a
substantial number of small entities.
EPA has determined that, for reasons
discussed above, this Rule does not
have significant adverse impact on
small entities. ".
The information collection provisions
in this rule have been approved by OMB
under the Paperwork Reduction Act of
1980, 44 U.S.C. 3501 et seq,, and have
been assigned-contrpl number 2040-
0049.
List of Subjects
40CFRPart35 1
Water pollution control. ,.
40CFRPartl20 ^-. J
, Water pollution control, .j ,
40 CFRPart 131 . ^
Water pollution control, .'
Intergovernmental relations, L
Administrative practices and
procedures, Reporting and record
keeping. j' ." ',; ..-
. Dated: November 2,1983. ' . "
William D. Ruckelshaus,
Administrator, ."-
PART 35STATE AND LOCAL
ASSISTANCE ;
§35.1550 [Removed] j '"
1. Section 35.1550 is removfed.
PART 120WATER QUALITY
STANDARDS i
§§120.1-120.3 [Removed] J.
2. Sections 120.1 through 120.3 are
removed. -'.<_,. j
§§120.27 and 120.43 [Removed]
' 3. Sections 120.27 and 120.43 are
removed. ' j
4. Part 131 is added as set forth below:
4A. Subparts A, B, and C afe added as
follows: . i
PART 131WATER QUALITY
STANDARDS
Subpart AGeneral Provisions
Sec. -.,.." . . . . "| : ,
131.1 Scope. I' .
131.2 Purpose.
131.3 Definitions. > .'.-'-
.1-31.4 State authority.
131.5 EPA authority. ;
131.8 Minimum requirements for water
quality standards submission. '
Subpart BEstablishment of Water Quality
Standards
131.10 Designation of uses.
131.11 Criteria. "' ; "
131.12 Antidegradation policy. I
131.13 General policies. .1
Subpart CProcedures for Review and
Revision of Water Quality Standards
Sec. "*
131.20 State Review and Revision of Water
Quality Standards..
131.21 EPA Review and. Approval of Water
Quality Standards.
131.22 EPA Promulgation of Water Quality
' Standards;
Authority: Clean Water Act, P.L. 92-500, as
amended: 33 U.S.C. 1251 et seq. ~ ,
Subpart AGeneral Provisions
§131.1 Scope.
This part describes the requirements
and procedures for developing,
reviewing, revising and approving water
quality standards by the States as '
authorized by Section 303(c) of the
Clean Water Act. The reporting or
recordkeeping (information) provisions
in this rule were approved by the Office
of Management and Budget under
3504(b) of the Paperwork Reduction Apt
of 1980, U.S.C. 3501 etseq. (approval
number 2040-0049). .
§131.2 Purpose.
.A water quality standard defines the
water quality goals of a water body, or
. portion thereof, by designating the use
or uses to be made of the water and by
'setting criteria necessary to protect the
uses. States adopt water quality
standards to protect public health or
welfare, enhance the quality of water
and serve the purposes of the Clean .
Water Act (the Act). "Serve the
purpose's of the Act" (as defined in
Sections 101(a)(2) and 303(c) of the-Act)
means that water quality standards
should, wherever attainable, provide
water quality for the protection and
propagation of fish, shellfish and
wildlife and for recreation in and on the
water and take fntq consideration their
use and value of public water supplies, ,
propagation of fish, shellfish, and
wildlife, recreation in and'on the water
and agricultural, industrial, and other
purposes including navigation.
Such standards serve the dual
purposes of establishing the water
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51406 Federal Register / Vol. 48. No. 217 / Tuesday, November 8, 1983 / Rules and Regulations
quality goals for a specific water body
and serve as the regulatory basis for the
establishment of water-quality-based
treatment controls and strategies
beyond the technology-based levels of
treatment required by sections 301(b)
and 306 of the Act.
5 131.3 Definitions.
(a) The Act means the Clean Water
Act (Public Law 92-500, as amended, (33
U.S.C. 1251 et seq.)).
(b) Criteria are elements of State
water quality standards, expressed as
constituent concentrations, levels, or
narrative statements, representing a
quality of water that supports a
particular use. When criteria are met,
water quality will generally protect the
designated use.
(cf Section 304(a) criteria are
developed by EPA under authority of
Section 304(a) of the Act based on the
latest scientific information on the
relationship that the effect of a
constituent concentration has on
particular aquatic species and/or human
health. This information is issued
periodically to the States as guidance
for use in developing criteria.
(d) Toxic pollutants are those
pollutants listed by the Administrator
under Section 307(a) of the Act.
(e) Existing uses are those uses
actually attained in the water body on
or after November 28,1975, whether or
not they are included in the water
quality standards.
(f) Designated uses are those uses
specified in water quality standards for
each water body or segment whether or
not they are being attained.
(g) Use Attainability Analysis is a
structured scientific assessment of the
factors affecting the attainment of the
use which may include physical,
chemical, biological, and economic
factors as described in § 131.10(g).
(h) Water quality limited segment
means any segment where it is known
that water quality does not meet
applicable water quality standards,
and/or is not expected to meet
applicable water quality standards,
even after the application of the
technology-bases effluent limitations
required by Sections 301 (b) and 306 of
the Act.
(i) Water quality standards are
provisions of State or Federal law which
consist of a designated use or uses for
the waters of the United States and
water quality criteria for such waters
based upon such uses. Water quality
standards are to protect the public
health or welfare, enhance the quality of
waterand serve the purposes of the Act
(j) States include: the 50 States, the
District of Columbia, puam, the
Commonwealth of Puerto Rico, Virgin
Islands, American Samoa, the Trust
Territory of the Pacific Islands, and the"
Commonwealth of the Northern Mariana
Islands.
§ 131.4 State authority.
States are responsible for reviewing,
establishing and revising water quality
standards. Under Section 510 of the Act,
States may develop water quality
standards more stringent than required
by this regulation.
§131.5 EPA authority.
Under Section 303(c) of the Act, EPA
is to review and to approve or
disapprove State-adopted water quality
standards. The review involves a
determination of: (a) Whether the State
has adopted water uses which are
consistent with the requirements of the
Clean Water Act; (b) whether the state
has adopted criteria that protect the
designated water uses; (c) whether the
State has followed its legal procedures
for revising or adopting standards; (d)
whether the State standards which do
not include the uses specified-in Section
101(a)(2) of the Act'are based upon
appropriate technical and scientific data
and analyses, and (e) whether the State
submission meets the requirements
included in Section 131.6 of this part. If
EPA determines that State water quality
standards are consistent with the
factors listed in (a)(e) of this
subsection, EPA approves the standards^
EPA must disapprove the State water
quality standards and promulgate
Federal standards under Section
'303(c)(4) of the Act, if State adopted
standards are not consistent with the
factors listed in (a)(e) of this
subsection. EPA may also promulgate a
new or revised standard where
necessary to meet the requirements of
the Act.
§131.6 Minimum requirements for water
quality standards submission.
The following elements must be
included in each State's water quality
standards submitted to EPA for review:
(a) Use designations consistent with
the provisions of Sections 101(a)(2) and
303(c)(2) of the Act. *
(b) Methods used and analyses
conducted to support water quality
standards revisions.
,(c) Water quality criteria sufficient to
protect the designated uses.
(d) An antidegradation policy
consistent with § 131.12.
(e) Certification by the State Attorney
General or other appropriate legal
authority within the State that the water
quality standards were duly adopted
pursuant to State law.
(f) General information which will aid
the Agency in determining the adequacy
of the scientific basis of the standards
which do not include the-.uses^specified
in Section 101(a)(2) of the Act as well as
information on general policies
applicable to State standards which
may affect their application and
implementation.
Subpart BEstablishment of Water
Quality Standards
§ 131.10 Designation of uses.
(a) Each State must specify
appropriate water uses to be achieved
and protected. The classification of the
waters of the State must take into
consideration the use and value of water
for public water supplies, protection and
propagation of fish, shellfish and
wildlife, recreation in and on the water,
agricultural, industrial, and other
purposes including navigation. In no
case shall a State adopt waste transport
or waste assimilation as a designated
use for any waters of the United States.
(b) In designating uses of a water
body and the appropriate criteria for
those uses, the State shall take into
consideration the water quality
standards of downstream waters and
shall ensure that its water quality
standards provide for the attainment
and maintenance of the water quality
standards of downstream waters.
(c) States may adopt sub-categories of
a use and set the appropriate criteria to
reflect varying needs of such sub-
categories of uses, for instance, to
differentiate between cold water and
warm water fisheries.
(d) At a minimum, uses are deemed
attainable if they can be achieved by the
imposition of effluent limits required
under Sections 301(b) and 306 of the Act
and cost-effective and reasonable best
management practices for nonpoint
source control.
(e) Prior to adding or removing any
use, or establishing sub-categories of a
use, the State shall provide notice and
an opportunity for a public hearing
under § 131.20(b) of this regulation.
(f) States may adopt seasonal uses as
an alternative to reclassifying a water
body or segment thereof to uses
requiring less stringent water quality
criteria. If seasonal uses are adopted,
water quality criteria should be adjusted
to reflect the seasonal uses, however, *
such criteria shall not preclude the
attainment and maintenance of a more
protective use in another season.
(g) States may remove a designated
use which is not an existing use, as
defined in § 131.3, or establish sub-
categories of a use if the State can
-------
Federal Register / Vol. 48, No. ,217. /.Tuesday; November 8, 1983 /Rules and Regulations. 51407
demonstrate that attaining the
designated use is not feasible because:
(1) Naturally occurring pollutant "
concentrations prevent the attainment of
the use; or .''"'.
(2) Natural, ephemeral, intermittent or
low flow conditions^ water levels
prevent the, attainment of the use, unless
these conditions may be compensated
for by the discharge of sufficient volume
of effluent discharges without violating
State water conservation requirements
to enable uses to be met; or '
(3) Human caused conditions or
sources of pollution prevent the
attainment of the use and cannot be
remedied or would cause more
environmental damage to correct than to
leave in place; or ,
(4) Dams, diversions or .other types of
hydrologic modifications preclude the
attainment of the use, and it is not
feasible to restore the water body to its
original condition or to operate such
modification in.a way that would result
in the attainment of the Use; or
(5] Physical conditions.related to the
natural features ofthe water body, such
-as the lack of a proper substrate, cover,
flow,,depth, pools, riffles, and the like,
unrelated to water quality, preclude
attainment of aquatic Ijfe protection
*tses; or . ,
(6) Controls more stringent than those :
required by Sections 301(b) and 30? of
the Act would result in substantial and
widespread economic and social impact.
(h) States may not remove designated
uses if: -,-.-
[1) They are existing uses,'as defined .
in Section 131.3, unless a use requiring
more stringent criteria is added; or
(2) Such uses will be attained by
implementing effluent limits required
under Sections 301 (b) and 306 of the Act
and by implementing cost-effective and -
reasonable best management practices
for nonpoint source control.
(i) Where existing water quality
standards specify designated uses less
than those which are presently being
attained, the State shall revise its
standards to reflect the uses actually
being attained. ,...<:.
(j) A State must conduct a use
attainability analysis as described in
§ 131.3[g) whenever: ,. ,
(1) The State designates or has
designated uses that do not include the
uses specified in Section 101 [a){2] ofthe .
Act, or. , ..
[2) The State wishes to remove a
.designated use that is specified in
Section 101(a)(2) of the Act or to adopt
subcategories of uses specified in
Section 101(a)(2) of the Act which .-.
require les's stringent criteria. ; -,-
(k) A State is not required to conduct
a use attainability analysis under this .
Regulation whenever designating uses
which include those specified in Section.
101(aj[2) of the Act. ,"'' ^-~. .;,_
§131.11 Criteria. ;U
(a) Inclusion of pollutants: ' "
(1) States must adopt those:! water
quality criteria that protect the
designated use. Such criteria taust be
based oh sound scientific rationale and
must contain sufficient parameters or
constituents to protect the designated ,
use. For waters'with multiple [use V;
designations, the criteria shall support
the most sensitive use. ; " :
(2) Toxic PollutantsStates must
review water quality data and .
information on discharges to identify .
specific water bodies where toxic
pollutants may be adversely affecting
water quality or the attainment of the
designated water use or where the
levels of toxic pollutants are at a level to
warrant .concern arid must adopt criteria
for such toxic pollutants applicable to
the water- body sufficient to protect the
designated use. Whefce a State adopts
narrative criteria for toxic pollutants to
protect designated uses, the State must
provide information identifyingthe
method by which the State intends to
regulate point source discharges of toxic
.pollutants on water quality limited
segments based on such narraitiye
criteria. Such information may be
included as part of the standards or may
be included in documents generated by
the State in response to the Water ,"
Quality Planning and Management
Regulations (40 CF^L Part 3&).
(b) Form of criteria: In establishing
criteria, States should: .i "
[1] Establish numerical values based
on: ;-/. ,. i. " '" ' ,'-
Ci) 3Q4(a) Guidance; or j ;
(ii) 304(a) Guidance modified to reflect
site-specific conditions; or;;
(iii) other scientifically defensible
methods; ..". L
(2) establish narrative criteria or
criteria based upon biomonitoring
methods where, numerical criteria
cannot be established or to supplement
numerical criteria. .';,. .
§131.12 Antidegradation policy.
(a) The State shall develop and adopt
a statewide antidegradation policy and
identify the methods for implementing
such policy pursuant to this subpart. The
antidegradation policy and ;
implementation methods shall; at a
minimum, be consistent with the
following: . i , , ,
(1) Existing iristream water Uses and
the level of water quality necessary to
protect the existing uses shall be
maintained and protected. i
(2) Where-the quality ofthe waters ,
exceed levels necessary to support
propagation of fish, shellfish, artd
wildlife and recreation in and on the
. water, that quality shall be maintained
and protected unless the State finds,
after full satisfaction of the' ,
intergovernmental coordination and:,:
public participation provisions of the
State's continuing planning process, that
allowing Idwer water-quality is ;
necessary to accommodate important
economic or social development in the
area in which the waters are located. Iri
allowing such degradation or lower
.water' quality, the State shall assure
water quality adequate to protect
existing uses fully. Further,' the State :
shall assure that there shall be achieved =
the highest statutory and regulatory
requirements for all hew arid existing
'-. point sources arid all cost-effective and
reasonable best management practices
for nonpoint source control. /
(3) Where high quality waters
constitute an outstanding Rational
resource, such as waters, of National and
State parks arid wildlife refuges and
waters of exceptional recreational or-
ecological significance, that water
quality shall be maintained and ,
protected. , ,
(4) In those cases where potential
water quality impairment associated
with a .thermal discharge is involved, the
antidegradation policy and
implementing method shall be .
, consistent with section 316 of the Act.
§ 131.13 General policies.
States may,,at .their discretion, include-
in their State standards, policies
generally .affecting their application and
implementation, such as mixing zones,: '
low flows and variances.-Such policies
are.subject to EPA review and approval.
Subpart CProcedures for Review
and Revision of Water Quality
Standards
§ 131.20 State review and revision of
water quality standards.
(a) State Review: The State shall from
time to time, but at least once every -
three years, hold public.hearings for the
purpose of reviewing applicable water .
quality standards and, as appropriate,
modifying and adopting standards. Any
water body segment with water quality
standards that do not .include the uses
specified in Section l6l(a}(2) of the"Act
shall be re-examined every three years
to determine if any new information has
become available. If such new
information indicates that the uses
specified in Section 101(a}(2) of the Act
are attainable, the State shall revise its -
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51408 Federal Register / Vol. 48. No. 217 / Tuesday, November 8, 1983 / Rules and Regulations
standards accordingly. Procedures
States establish for identifying and
reviewing water bodies for review
should be incorporated into their
Continuing Planning Process.
(b) Public Participation: The State
shall hold a public hearing for the
purpose of reviewing water quality
standards, in accordance with
provisions of State law, EPA's water
quality management regulation (40 CFR
130.3{b)(0)) and public participation
regulation (40 CFR Part 25). The
proposed water quality standards '
revision and supporting analyses shall
be made available tq, the public prior to
the hearing.
(c) Submittal to EPA: The State shall
submit the results of the review, any
supporting analysis for the use
attainability analysis, the methodologies
used for site-specific criteria
development, any general policies
applicable to water quality standards
and any revisions of the standards to
the Regional Administrator for review
and approval, within 30 days of the final
State action to adopt and certify the
revised standard, or if no revisions are
made as a result of the review, within 30
days of the completion of the review.
§131.21 EPA review and approval of water
quality standards.
(a) After the State submits its
officially adopted revisions, the
Regional Administrator shall either:
(1) notify the State within 60 days that
the revisions are approved, or
(2) notify the State within 90 days that
the revisions are disapproved. Such
notification of disapproval shall specify
the changes needed to assure
compliance with the requirements of the
Act and this regulation, and shall
explain why the State standard is not in
compliance with such requirements. Any
new or revised State standard must be
accompanied by some type of
supporting analysis.
(b) The Regional Administrator's
approval or disapproval of a State water
quality standard shall be based on the
requirements of the Act as described in
§§131.5, and 131.6.
(c) A Stale water quality standard
remains in effect, even though
disupproved by EPA, until the State
revises it or EPA promulgates a rule that
supersedes the State water quality
standard.
(d) EPA shall, at least annually,
publish in the Federal Register a notice
of approvals under this section.
1131.22 EPA promulgation of water
quality standards.
(a) If the State does not adopt the
changes specified by the Regional
Administrator within 90 days after
notification of the Regional
Administrator's disapproval, the
Administrator shall promptly propose
and promulgate such standard.
(b) The Administrator may also
propose and promulgate a regulation,
applicable to one or more States, setting
forth a new or revised standard upon
determining such a standard is
necessary to meet the requirements of
the Act.
(c) In promulgating water quality
standards, the Administrator is subject
to the same policies, procedures,
analyses, and public participation
requirements established for States in
these regulations.
§§ 120.12 and 120.34 [Redesignated as
§§131.31 and 131.33]
4B. Sections 120.12 and 120.34 are
redesignated as §§131.31 and 131.33
respectively and constitute Subpart D, of
new Part 131. The heading of new
§ 131.31 is revised to read "§131.31
Arizona". The tablejof contents for new
Subpart D is set forth below:
Subpart DFederally Promulgated Water
Quality Standards
131.31 Arizona
131.33 Mississippi.
Authority: Clean Water Act, Pub. L. 92-500,
as amended; 33 U.S.C. 1251 etseq,
5. The heading for Part 120 is removed
and reserved.
(Note.Appendix A will not appear in the
CFR.]
Appendix AResponse to Public
Comments
The public comments and statements
submitted to EPA on the proposed
Water Quality Standards Regulation
before the close of the comment period
are summarized in a separate
publication, "Summary of Public
Comments on the Proposed Water
Quality Standards Regulation," March
11,1983. Limited numbers of the
Summary are available from David K.
Sabock at the address listed under
FOR FURTHER INFORMATION CONTACT.
This appendix describes EPA's
response to the recommendations for
changes in the proposed Regulation.
Similar recommendations have been
grouped together. Major additions and
deletions made in the Rule in response
to public comments are described in
greater detail in the Preamble. Subjects
discussed in the Preamble, along with
EPA's rationale for accepting or
rejecting the public's suggestions
include: commitment to the goals of the
Clean Water Act, changes in uses
(including comments on benefit-cost
assessments), criteria, the
antidegradation policy, general policies,
and State review.
Definitions .-
Several commenters asked what
waters were included in the Standards
program. We changed the term
"navigable waters" to "waters of the
United States" in the Regulation to
avoid confusion. The CWA defines
"navigable waters" as "waters of the
United States," a broader class of
waters than considered "navigable"
under some other statutes.
A number of recommendations were
made to improve the series of
definitions relating to uses. The terms
"uses" and "attain" were removed from
the list of definitions as being
unnecessary to define. A definition of
"Use Attainability Analysis" was added
as a means of providing a common basis
for understanding this analysis. This
definition is derived from the language
of the existing Regulation. The
recommendation that the definition of
"water quality limited segment" be
moved from the Preamble of the
proposed Rule to the definition section
of the final Rule was accepted. The
definition is important to understanding
certain provisions of the Rule and is,
therefore, logically part of the Rule.
Several suggestions were .offered
regarding the definition of "criteria"
which resulted in the addition of "or
narrative statement" after
"concentration or level" and the
deletion of the final sentence to remove
the erroneous implication that only
numerical values may be established.
However, we rejected the suggestion
that we include in the definition of
criteria a statement that criteria are
purely scientific determinations and do
not consider the availability of
treatment technology or the costs or
economic impact of such treatment
requirements, because to do so would be
misleading. Section 304(a) criteria
developed by EPA are purely scientific
determinations, published as guidance
for the State's use. They are not
enforceable. Criteria adopted as part of
State water quality standards are set
taking into consideration the protection
of a particular designated use, and thus
may indirectly reflect a judgment as to
the availability of treatment
technologies needed to attain that use
and the associated economic impacts.
Such criteria, adopted as part of a State
standard, are enforceable.
State Review of Water Quality
Standards
There was considerable public
comment on the subject of State Review
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FederalJRefflster,/ 8/1983 / Rules and Regulations ' 51409
of Water Quality Standards, primarily
directed to the apparent lack of EPA's
commitment to the goals and philosophy
of the Clean Water Act and the
substitution of a review of standards for
a limited number of priority water
bodies in lieu of a Statewide review of
standards at least once every 3 years.
These concerns were addressed in detail
in the Preamble and will only be briefly
discussed here. ,,
Because of the overwhelming support
for the Section 101(a)(2) goals of the Act,
EPA added a requirement that any
stream segment with uses not specified
in Section 101(a)(2) of the Act be.re-
examined every 3 years by the State to .
determine if new information has
become available. If such new ,
information indicates that the uses
specified in Section 101(a)(2) are
attainable, the State shall revise its
standards accordingly. This provision in
effect established a mandatory.,
requirement to "upgrade" water quality
standards as a balance to the'provisions
allowing the "downgrading" of
standards. This policy also removes
problems dealing with equity ... J
considerations among competing
dischargers. Dischargers on ;a stream
with an unduly "low" designated use .
should not be given an advantage over
dischargers on; streams whose
designated uses and criteria were
properly set to reflect attainable uses.
We have retained the statutory 3-year
review requirement. The proposed
regulation was intended to implement
that requirement, but subsequent
statementspn priority'water bodies in
that subsection of the proposal and
discussions in the Preamble and Water
Quality Standards Handbook,tpnded to
confuse the issue. Many commenters
-thought EPA was attempting to delete or
minimize that requirement. This is not
EPA's intention.
EPA has changed the language fa part
131.20 to ^emphasize the statutory nature
of the 3-year review of all State
standards. However, EPA continues to
believe that the concept of focusing
limited State resources on specific water
bodies is an appropriate management
technique to ensure that the most
critical environmental problems are <''
adequately addressed. The Preamble
discusses this in more detail. . ...
In addition, many commenters
erroneously assumed that EPA was
proposing a rigid system for determining
priority water bodies. EPA ha|So rigid
priority system in mind other than
assuming the States will address known
problems first. Rather, EPA view's
setting priorities as a basic managetaent
tool and a necessary step for States to
make the best use of limited resources.
Priority lists are viewed as flexible
working documents, not as mandatory
lists. Public involvement in developing
these lists is encouraged. ;1.
Although there were suggestions that
EPA define for States the processes that
should be used in establishing the list of
priority water bodies, the Act'does not
require such guidance and EPA does not
believe it is appropriate to do so.
However, whatever procedures States
establish should be incorporated into
the States Continuing Planning Process
document and be made known to the "
public-at-large. .;
AntidegradationPolicy ' ^. :
EPA's proposal,'which would have
limited the antidegradation policy to the
maintenance of existing uses, plus three
alternative policy statements described
in the preamble to the proposal notice,
generated extensive public comment.
EPA's response is described iit the
Preamble to this final rule and includes
a response to both the substantive and
philosophical comments offered. Public
comments overwhelmingly supported
retention of the existing policy' andEPA
did so in the final rule. J .
EPA's response to several comments
dealing with the antidegradatibri'poiicy,
which were not discussed in the
Preamble are discussed below; '
Option three contained in the '
Agency's proposal would havej allowed
the possibility of exceptions td "
maintaining existing uses. This option
was either.criticized for being illegal or
was supported because it provided
additional flexibility for economic
growth. The latter commentera believed
that allowances.should be made for
carefully defined exceptions to the
absolute requirement that uses1, attained
must be maintained. EPA rejects this
-.contention as being totally inconsistent
with the spirit and intent of both the
Clean Water Act and the underlying
philosophy of the antidegradation
policy. Moreover, although the; Agency
specifically asked for examples of
where the existing antidegradation
policy had precluded.growth, rid .'-
examples were provided. Therefore, .
wholly apart from technical legal
concerns, there appears to be no : . -
justification for adopting Option 3.
._ Most critics of the proposed'' '.
antidegradation policy objected to "'.
removing the public's ability toi affect
decisions on high quality wateirs and
outstanding national resource waters. In
attempting to explain how the proposed -.
antidegradation policy would be
implemented, the Preamble to the'...
proposed rule stated that no public "
participation would be necessary in
certain instances because no cjtarige . :" s
was being made ift a State's water
.quality standard. Although that
statement was technically accurate, it
left the mistaken impression that all
public participation was removed from "
the discussions on high quality waters
and that is not correct. A NPDES permit
would have to be issued or a 208 plan
amended for any deterioration in water
quality to be "allowed". Both actions,
require notice and an opportunity for
public comment. However, EPA retained
" the existing policy so this issue is moot.
Other changes in the policy affecting
ONRW are discussed in the Preamble.
Designation ofUses '
The question of whether there is a
Hierarchy of uses-genera ted much
discussion._Many indicated there is no
hierarchy of uses since none of the uses
mentioned in Section 303(c] of the Clean
Air Water Act are ranked or were put
into any order of priority. However,
others believed that fish, wildlife and
recreation or potable water supply
clearly have precedence. The'short
answer is that Congress, in setting the
goals in Section iOi(a)(2),.established,
that, where attainable, water quality
"shall provide for .the protection of fish,
shellfish, wildlife and recreation in and ''
on the water.1. .">Therefore,TEPA has-
revised the proposed regulation to better
, emphasize tfie uses specified in the
Section 101(a)(2) goals of the Act. Under
the final .regulation,. wherever States
have set or set uses for a water body
which do not include all of the uses
specified in Section 101(a){2) of the Act,
they must conduct a use attainability,
- analysis to demonstrate that these uses
are not attainable. Of course, if they are
not attainable,'the State must select; one
or more of the other "uses included in
303(cH2). While the States need only ""''
conduct a use attainability analysis
once, every three years States will have
to review the 'basis of prior decisions to
designate, uses a water body which do
not include us*es specified in Section
101(a)(2) of the Act to determine if there
; is,any information which would warrant
a change in the standards. This change !
responds positively to the criticism that.
the proposed regulation settled for the;
status quo and did not adequately ;
: support the improvement of water ' ", -
quality. ,
The provision in the proposal allowing
States to designate subcategories of
aquatic.use (Section,131.10(b)) has been..
changed slightly in the final rule ,;'
(Section 131.io(c)) in response to
suggestions made by various
.commenters. EPA is attempting to :
convey the concept that Some use - ; :
classifications included in the Act and .:.
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51410 Federal Register / Vol. 48, No. 217 / Tuesday, November 8, 1983 / Rules and Regulations
in Stale standards are so broad that
they do not adequately describe to the
public the actual use to be protected.
The final rule provides that a State may,
because of physical, chemical,
biological, and economic factors, wish to
adopt sub-categories of a use and set
criteria appropriate to protect a
particular use sub-category. The
alteration of the language from the
proposal to the final rule specifically
follows suggestions that uses other than
aquatic life protection should be
covered, and that factors other than
economics should be considered, in
designating particular sub-categories of
uses.
Many of the comments on setting sub-
categories of uses levels of aquatic
protection, and seasonal uses were
similar, focusing primarily on the
availability of guidance and the
adequacy of information on how to
establish levels of protection or
seasonal uses. Guidance is available in
the Water Quality Standards Handbook
on what considerations are involved in
determining levels of protection and
seasonal uses to designating appropriate
uses for a water body. The availability
of information will vary depending on
the site involved. EPA intends to
continually improve the scientific and
technical basis of the guidance and to .
revise such guidance from time to time.
Moreover, EPA will not approve
standards unless they are based on '
sound scientific and technical analysis.
Establishing sub-categories of uses and
seasonal uses are optional
considerations on the part of the State.
Several commenters suggested that
EPA establish a minimum level of
protection. EPA believes if provides the
basic scientific information on various
levels of protection with the water
quality criteria recommendations under
Section 304(a) of the Act. However, for
EPA to mandate certain levels of
aquatic life protection within a use
" would override the primary authority of
the State to adopt use classifications
and supporting criteria through public
hearings. EPA does not believe as being
valid the concern expressed by the
public that when establishing various
levels of protection that the most
sensitive species will not be protected.
The degree of protection may vary
depending upon what life stage of the
most sensitive species the public wishes
to protect. For example, water quality
criteria necessary to protect spawning of
aquatic life generally requires more
stringent water quality criteria than
does protection of the species during
other stages of its life cycle. If spawning
is not part of a designated use for a
specific water body, then less stringent
criteria levels may be established and
they will be adequate to protect the use
fully.
The public also was concerned that
uses or sub-categories of uses would not
be based on original habitat conditions.
It has never been the intention of the
water quality standards program to
bring all waters to a pristine condition
or necessarily to set standards based on
original habitat conditions. In the first
instance, some waters are naturally of
"poor" quality, and in the second, man
has changed the environment and there
are instances where an attempt to
correct or control some sources of
pollution either simply cannot be
effected or would cause more
environmental damage to correct than to
leave in place.
In response to comments that the
provision on seasonal uses was too
loose, we revised the wording to clarify
that the criteria may not be adjusted in a
way that precludes a more protective
use in another season.
A basic policy of the standards
program throughout its history has been
that the designation of a water body for
the purposes of waste transport or
waste assimilation is unacceptable. At
the public's suggestion, an explicit
statement of this policy has been added
to § 131.10(a). The objective is to
prevent water bodies from being used as
open sewers. Thus, this "no waste
transport" policy does not mean that
wastes cannot be conveyed by barge or
boat; such activity is encompassed by
the navigation use designation.
Use Attainability Analysis
Because of the wide range of
comments on the use attainability
. analysis, EPA revised the regulation to
better define when such an analysis is
appropriate. The changes were
described in the Preamble:
EPA also reworded the proposed
concept of the use attainability analysis
to include, where appropriate, an
analysis of the economic impacts of
attaining a use consistent with or more
stringent than the Section 101(a}(2) goals
of the Act. EPA agrees with the
comments.that attainability and
affordability are integral components of
the same analyses. This is consistent
with the previous regulation, which
provided that, in determining
attainability, States were to consider
economic factors (§ 35.1550(c)(l)).
In the proposed Rule, EPA
recommended conducting a benefit-cost
assessment in determining whether the
benefits of attaining a use bear a
reasonable relationship to the"costs.
That concept has been removed from
the final Rule. As explained in the
preamble, the Agency was persuaded by
the arguments that there are inherent
conceptual and procedural difficulties in
balancing the benefits of achieving the
Section 101(a)(2) goals versus the costs.
The final regulation avoids these
problems while still recognizing the
relevance of economic factors in
determining attainability. The Agency
has retained the concept that economic
analysis be judged on substantial and
widespread economic and social impact.
Defining Attainable Uses
Several recommendations were made
to delete references to Section 301 (c)
from'the definition of the minimum
baseline technology defining when a use
is considered attainable and cannot be
modified or removed. They also
suggested making 301(c) waivers subject
to the requirements of proposed
§ 131.13(c). The Agency believes that it
is appropriate to use all applicable
sections of the Act in defining the
minimum technology based
requirements of the Act; section 301(c) is
one such section. In addition, Section
301 (c) prescribes the eligibility
requirements for a Section 301 waiver.
Therefore, EPA has not made the
suggested changes relating to Section
301(c).
Others pointed out that the proposed
rule did not, but should, allow a mix of
point and nonpoint source controls in
determining whether a use is attainable.
It was not EPA's intent to prevent that
type of analysis, and the final regulation
has been clarified by combining the two
paragraphs on point and nonpoint
source controls with the. word "and" in
§ 131.1000
Other comments on nonpoint sources
focused on the use of the terminology
"cost effective and reasonable best
management practices." EPA used,the
term "cost effective and reasonable best
management practices" to cover the
development of nonpoint source controls
with Section 205(j) funding. We believe
generally that nonpoint source controls
developed as part of a State's water
quality management plan are cost
effective and reasonable. If a designated
use can be attained through such BMPs;
it would be inconsistent to allow a
change in the use. Some comments also
expressed'concern that the Agency was
forcing a mandatory regulatory program
for nonpoint source controls through the
Water Quality Standards Regulation.
The Agency does not believe that the
wording will impose any new
requirements for the development of
regulatory programs for nonpoint souice
controls; rather, the regulation simply
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Federal Register /Vol. 48, No. 217-/ Tuesday,Novei!;nbeit-8, 1983 / Rules and Regulations
;514li
takes into account those programs
which exist in ascertaining the minimum
requirements. States are still free to
review and revise their non-point source
requirements in accordance with 208,
.303(e); and 205(j).
One commenter recommended that.
the Agency, include in the-section on use
attainability a discussion of the
relationship between best management ,
practices and water^quality standards
similar to that in U.S. EPA, State and.
Areawide Memorandum, Number 32,
Nov. 14,1978. EPA has included that
memorandum in the .chapter on "Water
Body Survey and Assessments for
Conducting Use Attainability Analyses"
in the Water Quality Standards
Handbook.
Changes in Uses -'.-.".-
, EPA received substantial comment on
§ 131.10(h}(l)-{6) and (i)(l)-f6) of the
- proposed regulation, which deal with
the circumstances under which changes ,
may (or may not) be made in designated
uses. These sections have been revised;.
the changes are discussed in Section A
of the Preamble. : ..
Criteria
We accepted the comment that the
added test of criteria being "compatible ..
with" protecting a'designated use might
raise the possibility of unnecessary > .
debate over what is compatible with
protecting a designated use. The , :
sentence was revised to read "States
must adopt water quality criteria that .
protect-a designated use." In response to
several comments, EPA also added
language to clarify that criteria must be
based on sound scientific rational and
must contain sufficient parameters or
constituents to protect the designated
use. Some commenters apparently
believe that the Agency continues to
have a policy of "presumptive
_ applicability" applied to the Federal
water quality criteria or that the :
proposed Regulation recreated that
policy. That policy existed from July 10,
1978 to Nov. 28,1980, when it was
rescinded. No such policy now exists
,. nor is intended in. the final rule. While
States are free to draw on EPA's 304(a)
criteria as support for State criteria, they
are equally free to use any other criteria
for which they have sound scientific
support. ,
Comments received from the public
clearly indicated concern that the
proposed rule did not appear to'provide
sufficient emphasis on the control of
toxic pollutants. The proposed
paragraph on toxic pollutants was
therefore strengthened to provide that
States "must" review, water quality data
and information on dischargers to
identify where toxic pollutants may be
adversely affecting the attainment of
designated water uses and "must" adopt
criteria to ensure the protection of the
designated uses, Furthermore,: where
States adopt narrative statements for
toxic pollutants, EPA is requiring that
States submit along with their standards
submission information identifying the
method by.which the State intends to
regulate point source discharges of toxic .
pollutants based-'on the narrative
provisions. For example, States may
require biological monitoring of."....
dischargers' effluents such that a
particular tolerance or LG5o value is not
exceeded. EPA made these changes
because it agrees that more 'emphasis
needs to be placed on the controljof
toxic dischargers. Information on --.,.
implementing methods will ensure that
EPA and State have a common
understanding of what the narrative
criteria really mean, and will facilitate
permit writing on water quality limited
streams. }'-
The regulation provides, several ways
of establishing water quality criteria,
including criteria development based on
site-specific characteristics. EPA's field
' tests of the proposed guidancei
supporting the concept of developing
site-specific criteria, the comments
received during the public review, and
the review conducted by the Agency's
Science Advisory Board identified
difficulties with the proposed guidance.
The final-guidance has been carefully
revised to reflect the concerns and
comments received to ensure that the
mechanisms used to develop site-
- specific criteria are scientifically '
credible. Research will also continue on
improvedrtechniques, and as validated
they will be made available to;the
States. .- ...;:
General Policies . ;
While many commenters supported
including the General Policies provision,.
(Section 131.13} in the framework of the
Regulation, others recommended
deleting the General Policies section
from the Regulation and including it in
guidance documents. Since much of the
language in that proposed part; was in
fact guidance, EPA decided to delete
paragraphs {b)-(d}. Only the first part of
the section which recognizes that States
do adopt policies that impact oil the " ' -
implementation and application of water
quality standards and that such policies,.
if adopted, are subject to EPA review
and approval was retained; i,
EPA believes that it is important for
the public to understand that while the
adoption of these policies is optional^ if '
adopted they are subject to EPA review
and approval. EPA will continue to
include a discussion of mixing zones,
low flows, variance and other general
program policies in a guidance' :'
document, as has been done since 1975.
Detailed guidance on these optional
policies is included in the Water Quality
Standards Handbook. ;
Resource Capabilities -
>"* ' " . ' .''.*-'
The issue of resources was of concern
' to many. While some States over the
years have collected the .scientific and
technical information to set appropriate
water quality standards, others have
done significantly less data .collection.' '"/
EPA recognizes that use attainability
analyses and site specific criteria '. '':.;
studies may.require some States to
program more resources for setting .their
water quality standards than in the past.-
However, the use attainability analyses
apply only to water quality limited
segmentssegments where standards
will not be attained even with ..
; implementation,of technology-based '
controls of the Act, where the State
wishes to justify uses less than . s ', _ ;-
"fishable/swimmable". Moreover,
nothing in the guidance or in the
requirement for conducting use
attainability analyses suggests that
every analysis be similar in scope anil
detail or that they must be intrinsically ;
expensive and difficult. EPA expects
quite the opposite to be true; the -." ,
analyses only need to be sufficiently .;'-''
detailed to, support the specific ;
standards decision in question.
Consequently, when attempting to
establish appropriate aquatic protection
uses it will, for examplef be relatively
simple to demonstrate to EPA that
. certain aquatic life forms will be, unable
to exist in an area because of physical
factors regardless of the level of water
quality attained, i.e.* no level of water
quality will induce fish to spawn in
areas wheje-the bottom strata are not
what the particular species requires for
spawning. In other instances, given tjie
environmental problems, number of
people involved, the cost of pollution
control to municipalities and industries,
and the political aspects of the situation,
the use attainability analyses may be "
quite costly. Because resources are and
will likely continue to be a problem,
EPA recommends that States set
priorities for conducting these analyses. ,
The Agency also believes that it is
appropriate for States to enlist the
cooperation and resources of
dischargers in conducting these :
analyses. EPA continues to believe that
there is considerable expertise and data
available from various State-agencies
that can be. tapped to assist in
establishing attainable standards. This
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51412 Federal Register / Vol. 48, No. 217 / Tuesday. November 8. 1983 / Rules and Regulations
expertise does, of course, vary from
State to State but that situation exists
under any regulation EPA may
promulgate.
In addition to the technical concerns
on the development of site-specific
criteria addressed earlier in both the
Preamble and this Appendix, the public
expressed concern with the cost of the
procedures and the availability of State
personnel to conduct and manage such
procedures. Because it is a new concept
in terms of application in a regulation,
the Preamble to the proposed rule
discussed the procedures in detail. This
conveyed the impression that site-
specific criteria development would be
the basic method of setting water
quality criteria. EPA believes the States
will continue to base most of their
standards on EPA developed Section
304(a) criteria because of the resource
question and because of the fact that
site-specific criteria will not be
necessary in most water bodies. The
Final Rule allows States to develop site-
specific criteria; it does not require them
to do so. As with use attainability
analyses, States should set priorities
and enlist the assistance of dischargers
in conducting site specific criteria. EPA
will be providing training seminars for
State personnel in applying site-specific
criteria development procedures. EPA is
also developing simpler and improved
techniques.
State/Federal Roles
There were a number of diverse"
comments on the sections of the
proposed rule dealing with "State
Review and Revision of Water Quality
Standards", "EPA Review and Approval
of Water Quality Standards" and "EPA
Promulgation of Water Quality
Standards".
Several comments on § 131.20 of the
proposed regulation "State Review and
Revision of Water Quality Standards",
requested specific mechanisms be
included in the regulation on how States
should generate data and information,
how to involve local government and
industry in the data collection and
decision making, how permittees could
request a review of inappropriate water
quality standards and how the public
participates in the water quality
standards revision process. All of these
comments were evaluated but few
changes were made other than those in
§ 131.20 which were described earlier.
States are responsible, within the
guidelines of Section 303(c) of the Act
and the Water Quality Standards
Regulation, for setting water quality
standards. EPA does not believe it is
appropriate to specify particular
administrative mechanisms States must
use in that process. Ensuring such
administrative uniformity would be
disruptive to the States without yielding
any significant environmental benefit.
There was also a recommendation to
include in the rule the policy statement
that was in the preamble to the proposal
on the relationship of Section 24 of the
"Municipal Waste Water Treatment
Construction Grant Amendments of
1981" (Pub. L. 97-117, December 29,1981,
33 U.S.C. 1313(a)), to water quality
standards reviews. The Agency chose
not to do so because, for the purposes of
Section 24, water quality standards
reviews are synonymous with the water
quality standards reviews under Section
303(c) of the Act and the one final rule.
A number of letters and statements
expressed concern that the various EPA
Regional Offices will interpret the
regulation differently. It is recognized
that with-10 Regional Offices
responsible for the review and approval
of State water quality standards, there is
potential for inconsistencies between
Regions on recommended data and
analyses. Of course, since water quality
problems in different regions may vary
considerably, the regions must also be
able to respond to those problems in
ways that make the most sense under
the particular circumstances. However,
it is believed that EPA's guidance and
Headquarters evaluations of the
Regional Offices will, to the extent
possible, minimize inconsistencies in the
interpretation of the Regulation by our
Regional Offices.
There were suggestions that EPA
change the rule to read that the State
water quality standards go into effect
only after EPA approval. Standards are
adopted by States under State law.
Consistent with the Clean Water Act,
EPA's policy has always been that a
State standard goes into effect when
adopted by the State and remains in
effect, even if disapproved, until the
State revises its standards or EPA
promulgates a Federal standard. This
interpretation is necessary because
otherwise there would be no standard at
all until Federal action was completed.
A State rescinds its prior standard
whenever it adopts a revised standard.
In addition, EPA approval of a standard
should not be interpreted as superseding
the State's right to amend its own laws.
By the same token, if EPA promulgates a
Federal standard, the State is obliged to
apply that standard in its pollution
control programs or until the State
adopts a State standard identical to or
more stringent than the Federal
standards.
EPA proposed to publish a notice of
approvals of State water quality
standards in the Federal Register at
least annually. One letter requested that
EPA publish the notice of approvals at
the time the Agency ta,ke action. EPA
believes that this action is unnecessary
since publication of these notices (or
any delay in publishing them) in ho way
affects the legal standing of'the
standards or the status of EPA's '
approval action. When a State adopts a
standard, it publishes a notice under
State law. This should be sufficient to
ensure that the regulated community is
informed of any changes in State water
quality standards. EPA's annual
publication will serve as a convenient
check.
A number of respondents
recommended that in promulgating State
standards, EPA move expeditiously to
avoid excessive delays. EPA's approach
in disapproving State standards is to
work with the State to assist the State in
revising its standard to meet the Act's
requirements. Only as a last resort will
EPA promulgate Federal standards. In
working with a State to revise its
standard, EPA will try to do so within
the timeframe of the Act. However, this
may not always be possible depending
on State administrative and/or
legislative procedures. However, we
intend to try harder to eliminate
unnecessary delay.
In response to a number of questions
raised, the final'rule clearly states that
in promulgating State standards, the
Administrator will be subject to the
same public participation policies and
procedures established for States.
Interstate/International Water Quality
Standards Issues
In the Preamble to the proposed water
quality standards regulation, EPA
discussed its role in interstate and
international water quality standards
issues. There were those that believed
that EPA should include in the
regulation specific procedures for
resolving interstate/international
conflicts and require States to adopt
standards that meet treaty requirements.
Since these issues have been associated
with the standards program since its
inception and have been adequately
resolved previously without the need for
regulatory language, EPA sees no need
to include such language in the Final
Rule.
When interstate/international
conflicts arise, EPA will play a stronger
role in the standards process in addition
to the ordinary review and approval
procedures described in the regulation.
First, if an interstate conflict occurs
between States in the same EPA region,
the EPA Regional Administrator is in a
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Federal Register / Vol. 48, No. 217 /Tuesday, Noverkbej 8,'l983 / Rules and Regulations 51413
position tp help resolve the dispute
through the ability to review and ,
approve each State's standards and by
participating in-the standards
development process: '
Interstate and interregional
organization^ can also play a positive
role in this situation. Second, if the issue
involves more than one EPA region and
the EPA regions are unable to resolve
the issues, then the EPA Administrator
can be requested to render a judgment.
While it is theroretically possible that
two States might have incompatible
, standards, both of which meet the -".
requirements of the Act and this
regulation, such as situation is1 likely to-
be rare. If it occurs, EPA Will assist the
States in resolving the inconsistency.,
The exact procedures will deptend upon
the specific circumstances. Therefore,
we do not believe it is appropriate to
include specific procedures in the Water
Quality Standards Regulation to resolve*
interstate conflicts!
Any specific treaty requirements have
the force of taw. Therefore,'State water
quality standards.will have to meet any
treaty requirements. --'".
Finally, in response to commenters'
suggestions, .we have' made some '.-.
editorial and format changes to clarify
the regulation. In addition, the
substantive changes made to
demonstrate the Agency's commitment
to the goals of the Act should also help
clarify the regulation. , ,. . ,
[FR Doc. 83-30233 Filed 1J-7-83; 8:45 amj
BILLING CODE 6560-50-M
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