United States
Environmental Protection
Agency
Office ol Watet
Regulation: and Standards
Washington, DC 20460
August 1985
Questions & Answers on
Antidegradation
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QUESTIONS AND ANSWERS ON AN TI DEGRADATION
INTRODUCTION
This document provides guidance on the antidegradation
policy component of water quality standards and its application.
The document begins with the text of the policy as stated in the
water quality standards regulation, 40 CFR 131.12 (40 FR 51400,
November 8, 1983), the portion of the Preamble discussing
the antidegradation policy, and the response to comments
generated during the public comment period on the regulation.
The document then uses a question and answer format
to present information about the origin of the policy, the
meaning of various terms, and its application in both general
terms and in specific examples. A number of the questions
and answers are closely related; the reader is advised to
consider the document in its entirety, for a maximum under-
standing of the policy, rather than to focus on particular
answers in isolation. While this document obviously does
not address every question which could arise concerning the
policy, we hope that the principles it sets out will aid the
reader in applying the policy in other situations. Additional
guidance will be developed concerning the application of the
antidegradation policy as it affects pollution from nonpoint
sources. Since Congress is actively considering amending the
Clean Water Act to provide additional programs for the control
of nonpoint sources, EPA will await the outcome of congressional
action before proceeding further.
EPA also has available, for public information, a summary
of each State's antidegradation policy. For historical
interest, limited copies are available of a Compendium of
Department of the Interior Statements on Non-Degradation of
Interstate Waters, August, 1968. Information on any aspect
of the water quality standards program and copies of these
documents may be obtained from:
David Sabock , Chief
Standards Branch (WH-585)
Office of Water Regulations and Standards
Environmental Protection Agency
401 M. Street, S.W.
Washington, D.C. 20460
This document is designated as Appendix A to Chapter 2 -
General Program Guidance (antidegradation) of the Water Quality
Standards Handbook, December 1983.
James M. Conlon, Acting Director
/Office of Water Regulations
and Standards
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REGULATION
Federal Register / Vol. 48, No. 217 / Tuesday, November », 1983 / Rules and Regulations 51407
§ 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:
(1) Existing instream water uses and
the level of water quality necessary to
protect the existing uses shall be
maintained and protected.
(2) Where the quality of the waters
exceed levels necessary to support
propagation of fish, shellfish, and
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 confirming planning process, that
allowing lower water quality is
necessfiry to accommodate important
economic or social development in the
area in which the waters are located. In
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 new and existing
point sources and all cost-effective and
reasonable best manngemant practices
for nonpoint source control.
(3) Where high quality waters
constitute an outstanding National
resource, such as waters of National and
State parks and 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.
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PREAMBLE
51402 Federal Register / Vol. 48. No. 217 / Tuesday, November 8, 1983 / Rules and Regulations
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 slowed were deleted. The
delet' ns were made because the terms
"int tere" and "injurious" were subject
to !misinterpretation as precluding any
a avity which might even momentarily
add pollutants to the water. Moreover.
w" believe the deleted sentence was
intended merely as a restatement of the
basic policy. Since-the rewritten
provision, with the addition of a phrase
on water quality described in 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, § 131.}2(a)(3He
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RESPONSE TO PUBLIC COMMENTS
Federal Register / Vol. 48. No. 217 / Tuesday, November 8, 1983 / Rules and Regulations 51409
Antidegrvdation Policy
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 in 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 and EPA
did so in the final rule.
EPA's response to several comments
dealing with the antidegradation policy,
which were not discussed in the
Preamble are discussed below.
Option three contained in the
Agency's proposal would have allowed
the possibility of exceptions to
maintaining existing uses. This option
was either criticized for being illegal or
was supported because it provided
additional flexibility for economic
growth. The latter commenters believed
that allowances should be made for
carefully defined exceptions to ihe
absolute requirement that uses 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, no
examples were provided. Therefore,
wholly apart from technical legal
concerns, there appears to be no
justification for adopting Option 3.
Most critics ot the proposed
antidegradation policy objected to
removing the public's ability to affect
decisions on high quality waters 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 change
was being made in 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.
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QUESTIONS AND ANSWERS ON ANTIDEGRADATION
1. WHAT IS THE ORIGIN OF THE ANTIDEGRADATION POLICY?
The basic policy was established on February 8, 1968, by
the Secretary of the U.S. Department of the Interior. It
was included in EPA's first water quality standards regula-
tion 40 CFR 130.17, 40 FR 55340-41, November 28, 1975. It
was slightly refined and repromulgated as part of the current
program regulation published on November 8, 1983 (48 FR
51400, 40 CFR §131.12). An antidegradation policy is one
of the minimum elements required to be included in a State's
water quality standards.
2. WHERE IN THE CLEAN WATER ACT (CWA) IS THERE A REQUIREMENT FOR AN
ANTIDEGRADATION POLICY OR SUCH A POLICY EXPRESSED?
There is no explicit requirement for such a policy in the
Act. However, the policy is consistent with the spirit,
intent, and goals of the Act, especially the clause "...
restore and maintain the chemical, physical and biological
integrity of the Nation's waters" (§101(a)) and arguably is
covered by the provision of 303(a) which made water quality
standard requirements under prior law the "starting point"
for CWA water quality requirements.
3. CAN A STATE JUSTIFY NOT HAVING AN ANTIDEGRADATION POLICY IN
ITS WATER QUALITY STANDARDS?
EPA's water quality standards regulation requires each
State to adopt an antidegradation policy and specifies the
minimum requirements for a policy. If not included in the
standards regulation of a State, the policy must be specifi-
cally referenced in the water quality standards so that the
functional relationship between the policy and the standards
is clear. Regardless of the location of the policy, it must
meet all applicable requirements.
4. WHAT HAPPENS IF A STATE'S ANTIDEGRADATION POLICY DOES NOT
MEET THE REGULATORY REQUIREMENTS?
If this occurs either through State action to revise its
policy or through revised Federal requirements, the State
would be given an opportunity to make its policy consistent
with the regulation. If this is not done, EPA has the auth-
ority to promulgate the policy for the State pursuant to
Section 303(c)(4) of the Clean Water Act.
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5. WHAT COULD HAPPEN IF A STATE FAILED TO IMPLEMENT ITS ANTI-
DEGRADATION POLICY PROPERLY?
If a State issues an NPDES permit which violates the re-
quired antidegradation policy, it would be subject to a
discretionary EPA veto under Section 402(d) or to a
citizen challenge. In addition to actions on permits, any
wasteload allocations and total maximum daily loads violating
the antidegradation policy are subject to EPA disapproval and
EPA promulgation of a new wasteload allocation/total maximum
daily load under Section 303(d) of the Act. If a significant
pattern of violation was evident, EPA could constrain the
award of grants or possibly revoke any Federal permitting
capability that had been delegated to the State. If the
State issues a §401 certification (for an EPA-issued NPDES
permit) which fails to reflect the requirements of the
antidegradation policy, EPA will, on its own initiative,
add any additional or more stringent effluent limitations
required to ensure compliance with Section 301(b)(1)(C).
If the faulty §401 certification related to permits issued
by other Federal agencies (e.g. a Corp of Engineers Section
404 permit), EPA could comment unfavorably upon permit
issuance. The public, of course, could bring pressure
upon the permit issuing agency.
6. WILL THE APPLICATION OF THE ANTIDEGRADATION POLICY ADVERSELY
IMPACT ECONOMIC DEVELOPMENT?
This concern has been raised since the inception of the
antidegradation policy. The answer remains the same. The
policy has been carefully structured to minimize adverse
effects on economic development while protecting the water
quality goals of the Act. As Secretary Udall put it in 1968,
the policy serves "...the dual purpose of carrying out the
letter and spirit of the Act without interfering unduly
with further economic development" (Secretary Udall, February
8, 1968). Application of the policy could affect the levels
and/or kinds of waste treatment necessary or result in the
use of alternate sites where the environmental impact would
be less damaging. These effects could have economic implica-
tions as do all other environmental controls.
7. WHAT IS THE PROPER INTERPRETATION OF THE TERM "AN EXISTING
US •!"?
\\ ' •
An existing use can be established by demonstrating that
fishing, swimming, or other uses have actually occurred
since November 28, 1975, or that the water quality is suit- \/
able to allow such uses to occur (unless there are physical \
problems which prevent the use regardless of water "quaTTty).
Ah example of the latter is an area where shellfish are ~>
propagating and surviving in a biologically suitable >"'
habitat and are available and suitable for harvesting.
Such facts clearly establish that shellfish harvesting is
an "existing" use, not one dependent on improvements in
water quality. To argue otherwise would be to say that
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the only time an aquatic protection use "exists" is if someone
succeeds in catching fish.
8. THE WATER QUALITY STANDARDS REGULATION STATES THAT "EXISTING
USES AND THE LEVEL OF WATER QUALITY NECESSARY TO PROTECT THE
EXISTING USES SHALL BE MAINTAINED AND PROTECTED." HOW FULLY AND
AT WHAT LEVEL OF PROTECTION IS AN EXISTING USE TO BE PROTECTED
IN ORDER TO SATISFY THE ABOVE REQUIREMENT?
No activity is_^JJjaw-able under the antidegradation policy
which would (partially or completely eliminate any existing
use whether or not tnajt use is designated in a State's water
T"fie aqu"a"€Tc~p"rbtectTon use is a broad category
requiring further explanation. /Species that are in the wateTr
body and which are consistent with the designated use (i.e., ;
not aberrational) must be protected, even if not prevalent in j
number or importance ./ Nor can activity be allowed which would
render the species unfit for maintaining the use. Water
quality should be such that it results in no mortality and
no significant growth or reproductive impairment of resident
species. (See Question 16 for situation where an aberrant sen-
sitive species may exist.) Any lowering of water quality below
this full level of protection is not allowed. A State may
develop subcategories of aquatic protection uses but cannot
choose different levels of protection for like uses. The fact
that sport or commercial fish are not present does not mean
that the water may not be supporting an aquatic life protection
function. An existing aquatic community composed entirely of
invertebrates and plants, such as may be found in a pristine
alpine tributary stream, should still be protected whether or
not such a stream supports a fishery. Even though the shorthand
expression "f ishable/swimmable" is often used, the actual objec-
tive of the act is to "restore and maintain the chemical,
physical, and biological integrity of our Nation's waters
(section 101 (a) ).^/ The term "aquatic life" would more accurately
reflect the protection of the aquatic community that was
intended in Section 101(a)(2) of the Act.
9. IS THERE ANY SITUATION WHERE AN EXISTING USE CAN BE REMOVED?
In general, no. Water quality may sometimes be affected,
but an existing use, and the level of water quality to
protect it must be maintained ( §131 .12 (a) ( 1 ) and (2) of the
regulation). However, the State may limit or not designate
such a use if the reason for such action is non-water quality
related. For example, a State may wish to impose a temporary
shellfishing ban to prevent overharvesting and ensure an
abundant population over the long run, or may wish to restrict
swimming from heavily trafficked areas. If the State chooses,
Note: "Fishable/swimmable" is a term of convenience used in
the standards program in lieu of constantly repeating
the entire text of Section 101(a)(2) goal of the Clean
Water Act. As a short-hand expression it is potentially
misleading.
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for non-water quality reasons, to li^ut use designations,
it must still adopt criteria to protect the use if there is
a reasonable likelihood it will actually occur (e.g. swimming
in a prohibited water). However, if the State's action is
based on a recognition that water quality is likely to be
lowered to the point that it no longer is sufficient to
protect and maintain an existing use, then such action is
inconsistent with the antidegradation policy.
10. HOW DOES THE REQUIREMENT THAT THE LEVEL OF WATER QUALITY
NECESSARY TO PROTECT THE EXISTING USE(S) BE MAINTAINED AND PROTECTED,
WHICH APPEARS IN §131.12(a)(1),(2), AND (3) OF THE WATER QUALITY
STANDARDS REGULATION, ACTUALLY WORK?
Section 131.12(a)(1), as described in the Preamble to the
regulation, provides the absolute floor of water quality in
all waters of the United States. This paragraph applies a
minimum level of protection to all waters. However, it is
most pertinent to waters having beneficial uses that are
less than the Section 101(a)(2) goals of the Act. If it
can be proven, in that situation, that water quality exceeds
that necessary to fully protect the existing use(s) and
exceeds water quality standards but is not of sufficient
quality to cause a better use to be achieved, then that
water quality may be lowered to the level required to fully
protect the existing use as long as existing water quality
standards and downstream water quality standards are not
affected. If this does not involve a change in standards,
no public hearing would be required under Section 303(c).
However, public participation would still be provided in
connection with the issuance of a NPDES permit or amendment
of a 208 plan. If, however, analysis indicates that the
higher water quality does result in a better use, even if
not up to the Section 101(a)(2) goals, then the water quality
standards must be upgraded to reflect the uses presently
being attained (§131.10(1)).
Section 131.12(a)(2) applies to waters whose quality
"* exceeds that necessary to protect the Section 101(a)(2)
goals of the Act. In this case, water quality may not be
lowered to less than the level necessary to fully protect
the "fishable /swimmable" uses and other existing uses and
may be lowered even to those levels only after following
all the provisions described in §131.12(a)(2). This require-
ment applies to individual water quality parameters.
Section 131.12(a)(3) applies to so-called outstanding National
Resource (ONRW) waters where the ordinary use classifications
and supporting criteria are not appropriate. As described in
the Preamble to the water quality standards regulation "States
may allow some limited activities which result in temporary
and short-term changes in water quality," but such changes
in water quality should not alter the essential character or
special use which makes the water an ONRW. (See also pages
2-14,-15 of the Water Quality Standards Handbook.)
Any one or a combination of several activities may trigger
the antidegradation policy analysis as discussed above. Such
activities include a scheduled water quality standards review,
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the establishment of new or revised wasteload allocations
NPDES permits, the demonstration of need for advanced treatment
or request by private or public agencies or individuals for a
special study of the water
11. WILL AN ACTIVITY WHICH WILL DEGRADE WATER QUALITY, AND PRECLUDE
AN EXISTING USE IN ONLY A PORTION OF A WATER BODY (BUT ALLOW IT
TO REMAIN IN OTHER PARTS OF THE WATER BODY) SATISFY THE ANTIDEGRAD-
ATION REQUIREMENT THAT EXISTING USES SHALL BE MAINTAINED
AND PROTECTED?
No. Existing uses must be maintained in all parts of the
water body segment in question other than in restricted
mixing zones. For example, an activity which lowers water
quality such that a buffer zone must be established within a
previous shellfish harvesting area is inconsistent with the
antidegradation policy. (However, a slightly different
approach is taken for fills in wetlands, as explained in
Question 13. )
12. DOES ANTIDEGRADATION APPLY TO POTENTIAL USEfS?
No. The focus of the antidegradation policy is on protecting
existing uses. Of course, insofar as existing uses and
water quality are protected and maintained by the policy
the eventual improvement of water quality and attainment of
new uses may be facilitated. The use attainability require-
ments of §131.10 also help ensure that attainable potential
uses are actually attained. (See also questions 7 and 10.)
13. FILL OPERATIONS IN WETLANDS AUTOMATICALLY ELIMINATE ANY
EXISTING USE IN THE FILLED AREA. HOW IS THE ANTIDEGRADATION
POLICY APPLIED IN THAT SITUATION?
Since a literal interpretation of the antidegradation policy
could result in preventing the issuance of any wetland" fill
permit under Section 404 of the Clean Water Act, and it is
logical to assume that Congress intended ;sorae such permits
to be granted within the framework of the Act, EPA interprets
§131.12 (a)(l) of the antidegradation policy to be satisfied
with regard to fills in wetlands if the discharge did not
result in "significant degradation" to the aquatic ecosystem
as defined under Section 230.10(c) of the Section 404(b)(l)
guidelines. if any wetlands were found to have better-
water quality than "fishable/ swimmable", the State wou^d
be allowed to lower water quality to the no significant
degradation level as long as the requirements of Section
131.12(a)(2) were followed. As for the ONKW provision of
antidegradation ( 131 . (a) ( 2) ( 3) ) , there is no difference in
the way it applies to wetlands and other water bodies.
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14. IS POLLUTION RESULTING FROM NONPOINT SOURCE ACTIVITIES SUBJECT
TO PROVISIONS OF THE ANTIDEGRADATION POLICY?
Monpoint source activities^ are^ -not-exempt from the provisions
of the antidegradation policy. The language of Section 131.12
(a)(2) of the regulation: "Further, the State shall assure
that there shall be achieved the highest statutory and regulatory
requirements for all new and existing point sources and all
cost-effective and reasonable best mangement practices for
nonpoint source control" reflects statutory provisions of the
Clean Water Act. While it is true that the Act does not
establish a regulatory program for nonpoint sources, it clearly
intends that the BMPs developed and approved under sections
205(j), 208 and 303(e) be agressively implemented by the States.
As indicated in the introduction, EPA will be developing additional
guidance in this area.
15. IN HIGH QUALITY WATERS, ARE NEW DISCHARGERS OR EXPANSION OF
EXISTING FACILITIES SUBJECT TO THE PROVISIONS OF ANTIDEGRADATION?
Yes. Since such activities would presumably lower water quality,
they would not be permissible unless the State finds that it is
nece.ssary to accommodate important economic or social development
(Section 131.12(a)(2). In addition the minimum technology based
requirements must be met, including new source performance
standards. This standard would be implemented through the waste-
load andt NPDES permit process for such new or expanded sources.
16. A STREAM, DESIGNATED AS A WARM WATER FISHERY, HAS BEEN
FOUND TO CONTAIN A SMALL, APPARENTLY NATURALLY OCCURRING POPULATION
OF A COLD-WATER GAME FISH. THESE FISH APPEAR TO HAVE ADAPTED TO
THE NATURAL WARM WATER TEMPERATURES OF THE STREAM WHICH WOULD NOT
NORMALLY ALLOW THEIR GROWTH AND REPRODUCTION. WHAT IS THE
EXISTING USE WfllCH MUST BE PROTECTED UNDER SECTION 131.12(a)(1)?
"""• Section 131 .12(a) ('1) states that "Existing instream water
u^es- and level of water quality necessary to protect the
existing uses shall be maintained and protected." While
sustaining a small cold-water fish population, the stream
does not support an existing use of a "cold-water fishery."
The existing stream temperatures are unsuitable for a thriving
cold-water fishery„ The snail marginal population is an
artifact and should not be employed to mandate a more stringent
use (true cold-water fishery) where natural conditions are
not suitable for that use.
A use attainability analysis or other scientific assessment
should b.e used- to determine whether the aquatic life population
is in fact an artiiract or is a stable population requiring
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water quality protection. Where species appear in areas not
normally expected, some adaptation may have occurred and site-
specific criteria may be appropriately developed. Should
the cold-water fish population consist of a threatened or
endangered species, it may require protection under the
Endangered Species Act. Otherwise the stream need only be
protected as a warm water fishery.
17. HOW DOES EPA'S ANTIDEGRADATION POLICY APPLY TO A WATERBODY
WHERE A CHANGE IN MAN'S ACTIVITIES IN OR AROUND THAT WATERBODY
WILL PRECLUDE AN EXISTING USE FROM BEING FULLY MAINTAINED?
If a planned activity will forseeably lower water quality
to the extent that it no longer is sufficient to protect
and maintain the existing uses in that waterbody, such an
activity is inconsistent with EPA's antidegradation policy
which requires that existing uses are to be maintained. In
such a circumstance the planned activity must be avoided or
adequate mitigation or preventive measures must be taken to
ensure that the existing uses and the water quality to
protect them will be maintained.
In addition, in "high quality waters", under §131.12(a)(2),
before any lowering of water quality occurs/ there must be:
1) a finding that it is necessary in order to accommodate
important economical or social development in the area in
which the waters are located, (2) full satisfaction of all
intergovernmental coordination and public participation
provisions and (3) assurance that the highest statutory and
regulatory requirements and best management practices for
pollutant controls are achieved. This provision can normally
be satisfied by the completion of Water Quality Management
Plan updates or by a similar process that allows for public
participation and intergovernmental coordination. This
provision is intended to provide relief only in a few extra-
ordinary circumstances where the economic and social need
for the activity clearly outweighs the benefit of maintaining-^
water quality above that required for "fishable/swimmable"
water, and the two cannot both be achieved. The burden of
demonstration on the individual proposing such activity will
be very high. In any case, moreover, the existing use must
be maintained and the activity shall not preclude the maintenance
of a "fishable/swimmable" level of water quality protection.
18. WHAT DOES EPA MEAN BY "...THE STATE SHALL ENSURE THAT THERE
SHALL BE ACHIEVED THE HIGHEST STATUTORY AND REGULATORY REQUIREMENTS
FOR ALL NEW AND EXISTING POINT SOURCES AND ALL COST EFFECTIVE
AND REASONABLE BEST MANAGEMENT PRACTICES FOR NON-POINT SOURCE
CONTROL" (§131.12(a)(2)?
This requirement ensures that the limited provision for
lowering water quality of high quality waters down to "fish-
able /swimmable" levels will not be used to undercut the
Clean Water Act requirements for point source and non-point
source pollution control. Furthermore, by ensuring compliance
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with such statutory and regulatory controls, there is less
chance that a lowering of water quality will be sought in
order to accommodate new economic and social development.
19. WHAT DOES EPA MEAN BY "...IMPORTANT ECONOMIC OR SOCIAL
DEVELOPMENT IN THE AREA IN WHICH THE WATERS ARE LOCATED"
IN 131.1 2(a)(2)?
This phrase is simply intended to convey a general concept
regarding what level of social and economic development could
be used to justify a change in high quality waters. Any more
exact meaning will evolve through case-by-case application
under the State's continuing planning process. Although
EPA has issued suggestions on what might be considered in
determining economic or social impacts, the Agency has no
predetermined level of activity that is defined as "important".
20. IF A WATER BODY WITH A PUBLIC WATER SUPPLY DESIGNATED USE
IS, FOR NON-WATER QUALITY REASONS, NO LONGER USED FOR DRINKING
WATER MUST THE STATE RETAIN THE PUBLIC WATER SUPPLY USE AND
CRITERIA IN ITS STANDARDS?
Under 40 CFR 131.10(h)(1), the State may delete the public
water supply use designation and criteria if the State adds
or retains other use designations for the waterbodies which
have more stringent criteria. The State may also delete
the use and criteria if the public water supply is not an
"existing use" as defined in 131.3 (i.e., achieved on or
after November 1975), as long as one of the §131.10(g)
justifications for removal is met.
Otherwise, the State must maintain the criteria even if it
restricts the actual use on non-water quality grounds, as
long as there is any possibility the water could actually
be used for drinking. (This is analogous to the swimming
example in the preamble.)
21. WHAT IS THE RELATIONSHIP BETWEEN WASTELOAD ALLOCATIONS, TOTAL
MAXIMUM DAILY LOADS, AND THE ANTIDEGRADATION POLICY?
Wasteload allocations distribute the allowable pollutant
loadings to a stream between dischargers. Such allocations
also consider the contribution to pollutant loadings from non-
'§/> point sources. Wasteload allocations must reflect applicable
'sr State water quality standards including the antidegradation
policy. No wasteload allocation can be develped or NPDES permit
issued that would result in standard being violated, or, in the
case of waters whose quality exceeds that necessary for the
Section 101(a)(2) goals of the Act, can result a lowering
of water quality unless the applicable public participation,
intergovernmental review and baseline control requirements
of the antidegradation policy have been met.
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22. DO THE INTERGOVERNMENTAL, LUUJ\UJ.LM/A^ IULM niMU r-uUJ.,1^ r AJA! iv- ir'A'i iON
REQUIREMENTS WHICH ESTABLISH THE PROCEDURES FOR DETERMINING THAT
WATER QUALITY WHICH EXCEEDS THAT NECESSARY TO SUPPORT THE SECTION
101(a)(2) GOAL OF THE ACT MAY BE LOWERED APPLY TO CONSIDERING
ADJUSTMENTS TO THE WASTELOAD ALLOCATIONS DEVELOPED FOR THE DISCHARGERS
IN THE AREA?
Yes. Section 131.12(a)(2) of the water quality standards
regulation is directed towards changes in water quality per
se, not just towards changes in standards. The intent is to
Insure that no activity which will cause water quality to
decline in existing high quality waters is undertaken without
adequate public review. Therefore, if a change in wasteload
allocation could alter water quality in high quality waters,
the public participation and coordination requirements
apply.
23. IS THE ANSWER TO THE ABOVE QUESTION DIFFERENT IF THE WATER
QUALITY IS LESS THAN THAT NEEDED TO SUPPORT "FISHABLE/SWIMMABLE"
USES?
Yes. Nothing in either the water quality standards or the
wasteload allocation regulations requires the same degree
of public participation or intergovernmental coordination
for such waters as is required for high quality waters.
However, as discussed in question 10, public participation
would still be provided in connection with the issuance of a
NPDES permit or amendment of a 208 plan. Also, if the action
which causes reconsideration of the existing wasteloads (such
as dischargers withdrawing from the area) will result in an
improvement in water quality which makes a better use
attainable, even if not up to the "fishable/swinmable" goal,
then the water quality standards must be upgraded and full
public review is required for any action affecting changes in
standards. Although not specifically required by the standards
regulation between the triennial reviews, we recommend that
the State conduct a use attainability analysis to determine if
water quality improvement will result in attaining higher uses
than currently designated in situations where significant
changes in wasteloads are expected (see question 10).
24. SEVERAL FACILITIES ON A STREAM SEGMENT DISCHARGE PHOSPHORUS-
CONTAINING WASTES. AMBIENT PHOSPHORUS CONCENTRATIONS MEET CLASS B
STANDARDS, BUT BARELY. THREE DISCHARGERS ACHIEVE ELIMINATION OF
DISCHARGE BY DEVELOPING A LAND TREATMENT SYSTEM. AS A RESULT,
ACTUAL WATER QUALITY IMPROVES (I.E., PHOSPHORUS LEVELS DECLINE)
BUT NOT QUITE TO THE LEVEL NEEDED TO MEET CLASS A (FISHABLE/SWIMMABLE)
STANDARDS. CAN THE THREE REMAINING DISCHARGERS NOW INCREASE
THEIR PHOSPHORUS DISCHARGE WITH THE RESULT THAT WATER QUALITY
DECLINES (PHOSPHORUS LEVELS INCREASE) TO PREVIOUS LEVELS?
Nothing in the water quality standards regulation expli-
citly prohibits this (see answer to questions 10 and 23).
Of course, changes in their NPDES permit limits may be
subject to non-water quality constraints, such as BPT
or BAT, which may restrict this.
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25. SUPPOSE IN THE ABOVE SITUATION WATER QUALITY IMPROVES TO THE
POINT THAT ACTUAL WATER QUALITY NOW MEETS CLASS A REQUIREMENTS.
IS THE ANSWER DIFFERENT?
Yes. The standards must be upgraded (see answer to question 10).
26. AS .AN ALTERNATIVE CASE, SUPPOSE PHOSPHORUS LOADINGS GO DOWN
AND WATER QUALITY IMPROVES BECAUSE OF A CHANGE IN FARMING PRACTICES,
E.G., INITIATION OF A SUCCESSFUL NON-POINT PROGRAM. ARE THE
ABOVE ANSWERS THE SAME?
Yes. Whether the improvement results from a change in point
or nonpoint source activity is immaterial to how any aspect of
the standards regulation operates. Section 131.10(d) clearly
indicates that uses are deemed attainable if they can be achieved
by "... cost-effective and reasonable best management practices
for nonpoint source control". Section 131.12(a)(2) of the anti-
degradation policy contains essentially the same wording.
27. WHEN A POLLUTANT DISCHARGE CEASES FOR ANY REASON, MAY THE
WASTELOAD ALLOCATIONS FOR THE OTHER DISCHARGES IN THE AREA BE
ADJUSTED TO REFLECT THE ADDITIONAL LOADING AVAILABLE?
This may be done consistent with the antidegradation policy
only under two circumstances: (1) In "high quality waters"
where after the full satisfaction of all public participation
and intergovernmental review requirements, such adjustments
are considered necessary to accomodate important economic or
social development, and the "threshold" level requirements
are met; or (2) in less than "high quality waters", when the
expected improvement in water quality will not cause a
better use to be achieved, the adjusted loads still meet water
quality standards, and the new wasteload allocations are at
least as stringent as technology-based limitations. Of
course, all applicable requirements of the Section 402
permit regulations would have to be satisfied before a
permittee could increase its discharge.
28. HOW MAY THE PUBLIC PARTICIPATION REQUIREMENTS BE SATISFIED?
This requirement may be satisfied in several ways. The State
may obviously hold a public hearing or hearings. The State
nay also satisfy the requirement by providing the opportunity
for the public to request a hearing. Activities which may
affect several water bodies in a river basin or sub-basin
may be considered in a single hearing. To ease the resource
burden on both the State and public, standards issues may be
combined with hearings on environmental impact statements,
water management plans, or permits. However, if this is
done, the public must be clearly informed that possible
changes in water quality standards are being considered
along with other activities. In other words, it is inconsis-
tent with the water quality standards regulation to "back-door"
changes in standards through actions on EIS's, wasteload
allocations, plans, or permits.
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29. WHAT IS MEANT BY THE REQUIREMENT THAT, WHERE A THERMAL
DISCHARGE IS INCLUDED, THE ANTIDEGRADATION POLICY SHALL BE
CONSISTENT WITH SECTION 316 OF THE ACT?
This requirement is contained in Section 131.12 (a) (4) of the
regulation and is intended to coordinate the requirements and
procedures of the antidegadation policy with those established
in the Act for setting thermal discharge limitations.
Regulations implementing Section 316 may be found at 40 CFR
124.66. The statutory scheme and legislative history indicate
that limitations developed under Section 316 take precedence
over other requirements of the Act.
30. WHAT IS THE RELATIONSHIP BETWEEN THE ANTIDEGRADATION POLICY,
STATE WATER RIGHTS USE LAWS AND SECTION 101(g) OF THE CLEAN
WATER ACT WHICH DEALS WITH STATE AUTHORITY TO ALLOCATE
WATER QUANTITIES?
The exact limitations imposed by section 101(g) are unclear;
however, the legislative history and the courts interpreting
it do indicate that it does not nullify water quality measures
authorized by CWA (such as water quality standards and their
upgrading, and NPDES and 402 permits) even if such measures
incidentally affect individual water rights; those authorities
also indicate that if there is a way to reconcile water
quality needs and water quantity allocations, such accomodation
should be be pursued. In other words, where there are
alternate ways to meet the water quality requirements of the
Act, the one with least disruption to water quantity allocations
should be chosen. Where a planned diversion would lead to a
violation of water quality standards (either the antidegradation
policy or a criterion), a 404 permit associated with the
diversion should be suitably conditioned if possible and/or
additional nonpoint and/or point source controls should be
imposed to compensate.
31. AFTER READING THE REGULATION, THE PREAMBLE, AND ALL THESE
QUESTIONS AND ANSWERS, I STILL DON'T UNDERSTAND ANTIDEGRADATION.
WHOM CAN I TALK TO?
Call the Standards Branch at: (202) 245-3042. You can also
call the water quality standards coordinators in each of our
EPA Regional offices.
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