United States
Environmental Protection Agency
ice of Water
Mail Code 4305T
EPA-820-F-13-01;
March 2013
Discharger-specific Variances on a Broader Scale:
Developing Credible Rationales for
Variances that Apply to Multiple Dischargers
Frequently Asked Questions
DISCLAIMER
These Frequently Asked Questions (FAQs) do not impose legally binding requirements on the
EPA, states, tribes or the regulated community, nor do they confer legal rights or impose legal
obligations upon any member of the public. The Clean Water Act (CWA) provisions and the EPA
regulations described in this document contain legally binding requirements. These FAQs do
not constitute a regulation, nor do they change or substitute for any CWA provision or the EPA
regulations.
The general description provided here may not apply to a particular situation based upon the
circumstances. Interested parties are free to raise questions and objections about the substance
of these FAQs and the appropriateness of their application to a particular situation. The EPA
retains the discretion to adopt approaches on a case-by-case basis that differ from those
described in these FAQs where appropriate. These FAQs are a living document and may be
revised periodically without public notice. The EPA welcomes public input on these FAQs at
any time.
1. Why is the EPA issuing these FAQs?
The EPA is issuing these FAQs to help address questions that arise when states and tribes1
seek to streamline the adoption and approval of water quality standards (WQS) variances for
pollutants that have an impact on multiple permittees (or dischargers). This occurs when
groups of permittees are experiencing the same challenges in meeting their water quality
based effluent limits (WQBELs) for the same pollutant, regardless of whether or not the
permittees are located on the same waterbody. States and tribes that want to find ways to
both improve the efficiency of their WQS adoption and approval process, and provide
permittees with as much certainty as possible regarding their ultimate discharge
requirements, may find these FAQs particularly helpful. While the EPA realizes there may
be further questions about the implementation of multiple discharger variances, these FAQs
1 "Tribal" and "tribes" refers to tribes authorized for treatment in a manner similar to a state (TAS) under section
518 of the Clean Water Act (CWA) for purposes of CWA section 303(c) water quality standards (WQS).
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are designed to help states and tribes evaluate the appropriateness of using a multiple
discharger variance approach.
The federal water quality standards regulations at 40 CFR 131 and the federal permitting
regulations at 40 CFR 122 provide for a number of tools for states and tribes that offer
regulatory flexibility when implementing water quality management programs. These tools
include site-specific criteria, revisions to designated uses, dilution allowances, permit
compliance schedules, and WQS variances. Which regulatory tool is appropriate depends
upon the circumstances.
2. What is a water quality standards variance?
A water quality standards variance is a time limited designated use and criterion (i.e., interim
requirements) that is targeted to a specific pollutant(s), source(s), and/or waterbody
segment(s) that reflects the highest attainable condition during the specified time period. As
such, a variance requires a public process and EPA review and approval under CWA 303(c).
While the designated use and criterion reflect what is ultimately attainable, the variance
reflects the highest attainable condition for a specific timeframe and is therefore less
stringent.3 However, a state or tribe may adopt such interim requirements only if it is able to
demonstrate that it is not feasible to attain the currently applicable designated use and
criterion during the period of the variance due to one of the factors listed at 40 CFR
131.10(g).4 Where the currently applicable designated use and criterion are not being met,
WQS variances that reflect a less stringent, time limited designated use and criterion allow
states, tribes and stakeholders additional time to implement adaptive management approaches
to improve water quality, but still retain the currently applicable designated use as a long
term goal for the waterbody. States have adopted, and EPA has approved, water quality
standards variances that apply to individual dischargers, variances that apply to multiple
dischargers, and variances that apply to entire waterbodies or segments.
The interim requirements specified in the variance apply only for CWA section 402
permitting purposes and in issuing certifications under section 401 of the Act for the
pollutant(s), permittee(s) and /or waterbody or water body segment(s) covered by the
variance. Specifically, the variance serves as the basis for the WQBEL in National Pollutant
Discharge Elimination System (NPDES) permits. However, the interim requirements do not
replace the designated use and criteria for the water body as a whole, therefore, any
implementation of CWA section 303(d) to list impaired waters must continue to be based on
the designated uses and criteria for the waterbody rather than the interim requirements.
2 The highest attainable condition is the condition that is both feasible to attain and is closest to the protection
afforded by the designated use and criteria.
3 While variances are described as "time limited" and designated uses are implied to be "permanent," 40 CFR
131.20 requires that states and tribes hold public hearings for the purpose of reviewing the applicable water
quality standards, including designated uses, and modifying them as appropriate.
4 See Section 5.3 of the Water Quality Standards Handbook EPA 823 B 94 005a, August 1994; Advanced Notice of
Proposed Rule Making, Water Quality Standards Regulation, July 7,1998 63 FR 36759.
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3. When might a state or tribe want to adopt a WQS variance?
Many states and tribes have found that WQS variances are useful to consider when there is a
new or more stringent effluent limit5 as long as the state or tribe can also provide a
demonstration that attaining the designated use and criterion is not feasible for the term of the
variance, but the designated use and criterion may be attainable in the longer term. Example
situations of when a variance may be appropriate include when:
• Attaining the designated use and criterion is not feasible under the current conditions
(e.g., water quality-based controls required to meet the numeric nutrient criterion would
result in substantial and widespread social and economic impact) but could be feasible
should circumstances related to the attainability determination change (e.g., development
of less expensive pollution control technology or a change in local economic conditions);
or
• The state or tribe does not know whether the designated use and criterion may ultimately
be attainable, but feasible progress toward attaining the designated use and criterion can
still be made by implementing known controls and tracking environmental improvements
(e.g., complex use attainability challenges involving legacy pollutants).
Properly applied, a WQS variance can lead to improved water quality over the duration of the
variance and, in some cases, full attainment of designated uses due to advances in treatment
technologies, control practices, or other changes in circumstances, thereby furthering the
objectives of the CWA.
4. What is the legal basis for a WQS variance?
The CWA specifies an interim goal that, "wherever attainable," water quality provide for the
protection and propagation offish, shellfish, and wildlife and provide for recreation in and on
the water. In implementing the CWA, the regulation at 40 CFR 131.10 establishes how a
state or tribe may demonstrate that uses specified in CWA section 101(a)(2) or subcategories
of such uses are not feasible to attain. In 1977, an EPA Office of General Counsel legal
opinion considered the practice of temporarily downgrading the WQS as it applies to a
specific permittee rather than permanently downgrading an entire water body or waterbody
segment(s) and determined that such a practice is acceptable as long as it is adopted
consistent with the substantive requirements for permanently downgrading a designated use.
In other words, a state or tribe may change the standard in a more targeted way than a
designated use change, so long as the state or tribe is able to show that achieving the standard
is "unattainable" for the term of the variance. The state practice described in the Office of
General Counsel legal opinion became known as adopting a "variance" to a water quality
standard.
The EPA's regulation at 40 CFR 131.13 provides that variance policies are general policies
affecting the application and implementation of WQS and that states and tribes may include
variance policies in their state and tribal standards, at their discretion.6 The EPA interprets its
5 For example, when dischargers are faced with new or revised criteria, and/or when a reasonable potential
analysis shows the need for a water quality based effluent limit.
6 Section 40 CFR 131.13 further provides that such policies are subject to EPA review and approval.
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regulation to authorize the use of a WQS variance where a state or tribe meets the same
procedural and substantive requirements as removing a designated use. Therefore, variances
can be granted based on any one of the six factors listed at 40 CFR 131.10(g).
5. What are the factors a state or tribe can use to justify the need for a water quality
standards variance?
As provided in §131.10(g), states and tribes "may remove a designated use which is not an
existing use, as defined in 40 CFR 131.3, or establish sub-categories of a use if the state or
tribe can 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 or 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 of the 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 life protection uses; or
(6) Controls more stringent than those required by sections 301(b) and 306 of the Act would
result in substantial and widespread economic and social impact."
6. What is a Multiple Discharger Variance?
If a state or tribe believes that the designated use and criterion are unattainable as they apply
to multiple permittees because they are all experiencing challenges in meeting their
WQBELs for the same pollutant(s) for the same reason, regardless of whether or not they are
located on the same waterbody, a state or tribe may streamline its WQS variance process. To
do so, the state or tribe would adopt one variance that applies to all of these permittees (i.e., a
multiple discharger variance) so long as the variance is consistent with the CWA and
implementing regulation at 40 CFR 131.10 (for example, all the dischargers in the group
cannot meet the required WQBEL to protect aquatic life for a period of time due to
substantial and widespread economic and social impact).
The EPA recognized the utility of a multiple discharger variance, and its distinction from an
individual discharger WQS variance in the "Water Quality Guidance for the Great Lakes
System: Supplementary Information Document" (SID; EPA-820-B-95-001; March 1995, p.
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238). The EPA also spoke to the use of multiple discharger variances in the "Water Quality
Standards for the State of Florida's Lakes and Flowing Waters; Final Rule." 75 Fed. Reg.
75762, 75790 (December 6, 2010). It is important to note that multiple discharger variances
may not be appropriate or practical for all situations, and may be highly dependent on the
parameters considered and the number of affected permittees.
7. What should a state or tribe keep in mind when justifying the need for a multiple
discharger variance?
In developing an analysis to justify the need for a multiple discharger variance, states and
tribes should consider the following three principles. The variance and the justification:
(1) Must meet the same 40 CFR 131 regulatory requirements as an individual discharger
WQS variance, and should consider any EPA guidance. Specifically, the state or tribe
must fully demonstrate that a factor listed in 40 CFR 131.10(g) precludes attainment of a
use specified in CWA 101(a)(2) for the entire variance period. When using 40 CFR
131.10(g)(6), this means that the documentation provided to support the variance must
address both the substantial AND widespread components of the economic and social
impacts of attaining the designated use and criterion.
(2) Should ensure that any overall demonstration is conducted in a manner that accounts for
as much individual permittee information as possible. A permittee that could not qualify
for an individual WQS variance should not qualify for a multiple discharger variance.
The demonstration should:
• Apply only to permittees experiencing the same challenges in meeting WQBELs for
the same pollutant(s), criteria and designated uses.
• Group permittees based on specific characteristics or technical and economic
scenarios that the permittees share (e.g., type of discharger (public or private),
industrial classification, permittee size and/or effluent quality, treatment train
(existing or needed), pollutant treatability, available revenue, whether or not the
permittee can achieve a level of effluent quality comparable to the other permittees in
the group, and/or waterbody or watershed characteristics) and conduct a separate
analysis for each group.7 The more homogeneous a group is in terms of factors
affecting attainability of the designated use and criterion, the more credible the
multiple discharger variance will be.
• Collect sufficient information for each individual permittee, including engineering
analyses and financial information, to adequately support the specification of
permittee groups for each individual permittee to be covered by the variance (e.g.
estimated costs that each permittee may experience, permittee specific revenue).
7 The EPA recommends that the state or tribe develop a separate variance for each group (even when going
through the same rulemaking procedure) so that if questions arise for one group, it does not jeopardize approval
for the others.
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(3) Should consider an individual variance for a particular permittee if it does not fit with any
of the group characteristics (e.g., private vs. public dischargers, large vs. small permittee,
or permittees with a parent company vs. those without).
8. What should a state or tribe keep in mind when adopting a multiple discharger variance
pursuant to state/tribal law?
Any multiple discharger variance should:
(1) Include a justifiable expiration date, consistent with the analysis provided, for each
permittee or group of permittees covered by the variance. After the expiration date, each
permittee in the group will be subject to the applicable water quality standards, or obtain
EPA approval on a variance renewal. If the variance will expire during the permit term,
the permitting authority must either include an appropriate WQBEL that will apply at the
expiration of the variance or include a reopener clause such that the WQBEL may be
revised in order for that permit to derive from and comply with WQS the entire permit
term.
(2) Provide that any renewal of a multiple discharger variance includes a new demonstration
that the designated use and criterion are not feasible to attain during the term of the
renewed variance, and documentation of the feasible progress that has been made by each
permittee covered by the renewal. In addition, individual permittees will be reevaluated
to determine if they continue to qualify under their group designation. Permittees that no
longer qualify will cease to be covered by the multiple discharger variance.
It is important to note that even though the duration of a variance may be longer than 3 years,
a variance is a water quality standard that must be reviewed every 3 years, consistent with 40
CFR131.20(a).
9. What must a state or tribe keep in mind when determining the appropriate interim
requirements for a multiple discharger variance?
As with any WQS variance, the interim requirements will need to reflect the highest
attainable condition during the term of the variance. The highest attainable condition may be
expressed as the highest attainable interim use and criterion8 or highest attainable effluent
Section 131.6(a) requires that each state's water quality standards submitted to EPA for review must include
"use designations consistent with the provisions of sections 101(a)(2) and 303(c)(2) of the Act." CWA section
101(a)(2) establishes as a national goal "water quality which provides for the protection and propagation of fish,
shellfish, and wildlife and recreation in and on the water," wherever attainable. Section 303(c)(2)(A) requires state
water quality standards to "protect the public health or welfare, enhance the quality of water and serve the
purposes of this [Act]." EPA's regulations at 40 CFR part 131 interpret and implement these CWA provisions as
creating a "rebuttable presumption" that requires state water quality standards to provide for all of the uses
specified in Section 101(a)(2) of the Act, unless those uses are shown by a use attainability analysis to be
unattainable. Section 131.10(g) and 131.10(j) authorizes a state to remove protection for a use specified in
101(a)(2) (or subcategory of such a use) if the state can demonstrate that one of the attainability factors is met.
Once the presumption is rebutted, the state must still adopt, under 131.6(a), "use designations consistent with
the provisions of sections 101(a)(2) and 303(c)(2) of the Act." In order to comply with this provision, states will
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condition for a permittee(s) during the term of the variance. For example, this could be
accomplished by specifying in the variance a numeric value that reflects the highest water
quality that a discharger could achieve (beyond their technology-based effluent limits) during
the term of the variance.9 In general, interim requirements should be established on a
permittee specific basis (particularly when demonstrating that the applicable designated use
is unattainable based on 40 CFR 131.10(g)(6)), but there may be instances where establishing
requirements for a group of permittees may be appropriate (e.g., with "legacy pollutants", or
when hydrologic conditions have been modified). EPA notes that some states have included
additional interim requirements, such as requirements to research advances in wastewater
treatment or improved management practices, to conduct wastewater treatability studies, to
define demonstrated performance of wastewater treatment or other control methods.
need to adopt designated uses that continue to serve the 101(a)(2) goal by protecting for the highest attainable
use unless the state has shown that no use specified in 101(a)(2) or no subcategory of such uses are attainable.
9 This is a reasonable alternative to adopting an interim designated use and criterion because the resulting
instream concentration reflects the highest attainable interim use and interim criterion.
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