August 2013
EPA 820-F-13-026
Summary of Water Quality Standards Regulatory Clarifications Proposed Rule
The EPA has proposed targeted changes
to the WQS regulation that aim to
improve the regulation's effectiveness
in restoring and maintaining the
chemical, physical and biological
integrity of the Nation's waters, and to
clarify and simplify regulatory
requirements.
Administrator's Determination
Proposed Revision: Amends §131.22(b) to
add a requirement that an Administrator's
Determination must be signed by the
Administrator and state it is a determination.
Issue: Public and stakeholder
misinterpretation that Agency memoranda
or documents that articulate areas where
states' and tribes' WQS may need
improvements are official CWA section
303(c)(4)(B) Administrator Determinations
that obligate EPA to propose and promulgate
federal WQS.
Goal: Allow EPA and states/tribes to
communicate directly and specifically on
areas where WQS improvements should be
considered and establish a more transparent
process for the Administrator to announce
determinations made under section
303(c)(4)(B)oftheAct.
Designated Uses
Proposed Revision: Amends §131.10(g) to provide
that where a use specified in section 101(a)(2) of the
Act or a subcategory of such a use is not attainable, the
highest attainable use (HAU)and criteria to protect that
use shall be adopted in its place. It also amends
§131.10(g), 0) and (k) to be clear when a UAA is and is
not needed.
HAD will be defined as "the aquatic life, wildlife,
and/or recreation use that is found to be both closest
to the uses specified in section 101(a)(2) of the Act and
feasible to attain, as determined using best available
data and information through a UAA defined in
§131.3(g)."
Issue: WQS regulation allows states and tribes to
remove unattainable uses, but does not clearly specify
that attainable uses must be retained.
Goal: Ensure that states/tribes continue striving to
meet the national goal of the CWA, even where it is
determined to be unattainable at a particular time.
Preamble and rule also identifies: Examples of how a
state may choose to articulate the HAD.
(1) Use a sufficiently refined designated use
structure that is already adopted into state
regulation.
(2) Revise the current designated use
structure to include more refined uses
and/or sub-categories of uses.
(3) Designate a location-specific use and the
criteria that protect such a use.
Requirements of Triennial Reviews
Proposed Revision: Amends §131.20(a) to clarify
that where the EPA has published new or updated
section 304(a) criteria recommendations,
states/tribes shall re-examine their criteria to
determine if any criteria should be revised to
assure protection of designated uses.
Issue: States/tribes may retain criteria in their
WQS that do not reflect updated science or fully
protect designated uses, without considering the
availability of new or updated section 304(a)
recommendations. The current regulations are
not clear about this expectation.
Goal: Ensure states and tribes update WQS when
necessary by adding an explicit expectation for
states/tribes to review both criteria and
designated uses.
The basic structure of the water quality standards
regulation (40 CFR part 131) was last revised in
November 1983. EPA added tribal provisions in
1991, "Alaska rule" provisions in 2000, and BEACH
Act rule provisions in 2004.
At the 15-year point (July 1998), EPA issued a
comprehensive advance notice of proposed
rulemaking (ANPRM) and conducted an extensive
dialogue with states and the public on over 130
discrete issues. The ANPRM led to some program
redirections, but EPA did not revise the regulation
itself at that time.
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August 2013
EPA 820-F-13-026
Summary of Water Quality Standards Regulatory Clarifications Proposed Rule
Antidegradation Implementation
Proposed Revision: Amends several provisions
of §131.12 to specify that state/tribal methods
must ensure:
(1) high quality waters are identified on a
para meter-by-para meter approach or on a
waterbody-by-waterbody approach that does
not exclude any waterbody from Tier 2
protection solely because not all of the uses
specified in CWA section 101(a)(2) are
attained; and
(2) decisions are made after conducting an
alternatives analysis to identify the
practicable alternative that either prevents or
minimizes degradation and implementing one
of those alternatives.
EPA also requests comment on whether the
EPA should require the adoption of statewide
antidegradation implementation methods as
WQS.
Issue: High quality waters are not being
adequately maintained and protected.
Goal: Enhance state and tribal implementation
of antidegradation by strengthening the
transparency and clarity of EPA's expectations
and the states'/tribes' intentions.
Preamble also identifies: A list of minimum
elements to be included in an implementation
method in order for those methods to be
consistent with EPA's regulations.
WQS Variances
Proposed Revision: Adds §131.14 to establish
regulatory guidelines for WQS variances and
WQS variance renewals, including that a WQS
variance submission must specify:
(1) the pollutant(s), the permittee(s), and/or
the waterbody or water by segments to which
the WQS variance applies;
(2) numeric interim requirements that apply
during the WQS variance for CWA section 402
NPDES permitting and section 401 certification;
(3) an expiration date not to exceed 10 years;
and
(4) a §131.10(g) factor to justify why and for
how long a WQS variance is necessary.
A WQS variance will be defined as "a time-limited
use and criterion for a specified pollutant(s),
permittee(s), and/or waterbody or waterbody
segment(s) that reflect the highest attainable
condition during the specified time period."
Issue: Current regulation does not provide
guidelines or boundaries on WQS variances; thus,
WQS variances are not always used effectively to
drive water quality progress.
Goal: Provide regulatory guidelines to encourage
appropriate use of WQS variances and to allow
states to achieve water quality improvements
before resorting to a use change.
Provisions Authorizing the Use of
Permit-Based Compliance Schedules
Proposed Revision: Adds §131.15 to clarify that
a permitting authority may only issue compliance
schedules for WQBELs in NPDES permits if the
state/tribe has authorized use of such
compliance schedules in their WQS or
implementing regulations. It also specifies that
such provisions must be approved as WQS under
section 303(c) of the Act.
Issue: Despite the EPA Administrator's decision
in In the Matter ofStar-Kist Caribe, Inc (1990)
(that compliance schedules may only be issued if
the state/tribe has authorized them in their WQS
or implementing regulations), compliance
schedules are often included in permits without
being authorized.
Goal: Clearly articulate in regulation what must
be done for states/tribes to be able to utilize
permit compliance schedules, consistent with
the EPA Administrator's decision in In the Matter
ofStar-Kist Caribe, Inc.
The proposed rule was published in the
Federal Register on 09/04/2013. The EPA will
receive public comments on the proposed rule
for 90 days, until 12/3/2013. During the 90-
day public comment period, the EPA plans to
hold 2 webinars and one public meeting.
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