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Supplemental Information for
Water Quality Standards Regulatory Clarifications Proposed Rule
NOTE: THE FOLLOWING REGULATORY TEXT IS A COMPARISON OF THE
PROPOSED RULE LANGUAGE AND THE EXISTING RULE LANGUAGE.
STRIKEOUTS INDICATE TEXT PROPOSED TO BE DELETED AND
UNDERLINES INDICATE TEXT PROPOSED TO BE ADDED.
THE TEXT BELOW SHOWS ONLY THE PROVISIONS AFFECTED BY THE
REVISIONS IN THE PROPOSED RULE. IT DOES NOT REPRESENT THE
ENTIRETY OF THE PART 131 REGULATIONS.
For the reasons stated in the preamble, the EPA proposes to amend 40 CFR part 131 as
follows:
PART 131—WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as follows:
Authority: 33 U.S.C. 1251 etseq.
Subpart A-General Provisions
2. Amend § 131.2 by revising the first sentence to read as follows:
§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 that te protect the designated uses. * * *
3. Amend § 131.3 by revising paragraphs (h) and (j), and adding paragraph (m) to
read as follows:
§ 131.3 Definitions.
(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
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applicable water quality standards, even after the application of the technology-basesd
effluent limitations required by sections 301(b) and 306 of the Act.
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(j) States include: The 50 States, the District of Columbia, Guam, the Commonwealth
of Puerto Rico, Virgin Islands, American Samoa, the Trust Territory of the Pacific
Islands, the Commonwealth of the Northern Mariana Islands, and Indian Tribes that EPA
determines to be eligible for purposes of the water quality standards program.
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(m) Highest attainable use is the aquatic life, wildlife, and/or recreation use that is
both closest to the uses specified in section 101(a)(2) of the Act and attainable, as
determined using best available data and information through a use attainability analysis
defined in § 131.3(g).
4. Amend § 131.5 by:
a. Revising paragraphs (a)(l) and (a)(2);
b. Redesignating paragraphs (a)(3) through (a)(5) as (a)(4) through (a)(6) and adding a
new paragraph (a)(3); and
c. Revising paragraph (b).
The revisions and additions read as follows:
§ 131.5 EPA authority.
(a) * * *
(1) Whether the State has adopted designated water uses which are consistent with the
requirements of the Clean Water Act;
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(2) Whether the State has adopted criteria that protect the designated water uses based
on sound scientific rationale:
(3) Whether the State has adopted an antidegradation policy consistent with §
131.12(a), and if the State has chosen to adopt implementation methods, whether those
implementation methods are consistent with § 131.12:
(b) If EPA determines that the State's or Tribe's water quality standards are consistent
with the factors listed in paragraphs (a)(l) through (a)(-S6) of this section, EPA approves
the standards. EPA must disapprove the State's or Tribe's water quality standards and
promulgate Federal standards under section 303(c)(4), and for Great Lakes States or
Great Lakes Tribes under section 118(c)(2)(C) of the Act, if State or Tribal adopted
standards are not consistent with the factors listed in paragraphs (a)(l) through (a)(-S-6) of
this section. EPA may also promulgate a new or revised standard when necessary to meet
the requirements of the Act.
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Subpart B—Establishment of Water Quality Standards
5. Amend § 131.10 by revising paragraphs (g) introductory text and paragraphs, (j),
and (k) to read as follows:
§ 131.10 Designation of uses.
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(g) Pursuant to § 131.10(j), States may designate or remove a designated use or a sub-
category of a use as long as the action does which is not remove protection for an existing
use, as dofmod in §131.3, or establish sub categories of a use if and the State can
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demonstrate that attaining the use is not feasible because-: of one of the six factors in this
paragraph. If a State adopts new or revised water quality standards based on a use
attainability analysis, the State shall also adopt the highest attainable use and the criteria
to protect that use. To meet this requirement States may, at their discretion, utilize their
current use categories or subcategories, develop new use categories or sub categories, or
adopt another use which may include a location-specific use.
(j) A State must conduct a use attainability analysis as described in § 131.3(g), and §
131.10(g), whenever:
(1) The State designates or has designated uses for a water body for the first time that
do not include the uses specified in section 101(a)(2) of the Act, or
(2) The State wishes to remove a designated use that is specified in section 101(a)(2)
of the Act, to remove a sub-category of such a use, or to adep^designate a sub-
categoriesy. of such a uses specified in section 101(a)(2) of the Act which requires criteria
less stringent criteria than previously applicable.
(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(a)(2) of the Act
(1) The State designates or has designated uses for a water body for the first time that
include the uses specified in section 101(a)(2) of the Act or
(2) The State wishes to remove a designated use that is not specified in section
101(a)(2) of the Act or designate a sub-category of a use specified in section 101(a)(2) of
the Act which requires criteria at least as stringent as previously applicable.
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6. Amend § 131.11 by revising paragraphs (a)(2) and (b) introductory text to read as
follows:
A. § 131.11-Criteria.
(a) * * *
(2)Toxic Pollutants. States 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 and must adopt criteria for such toxic
pollutants applicable to the water body sufficient to protect the designated use. Where a
State adopts narrative criteria for toxic pollutants to protect designated uses, the State
must provide information identifying the method by which the State intends to regulate
point source discharges of toxic pollutants on water quality limited segments based on
such narrative 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 CFR part 34130).
(b) Form of cntQna:Form of criteria: In establishing criteria, States should:
7. Amend § 131.12 by revising the section heading and paragraphs (a) introductory
text and (a)(2), and adding paragraph (b) to read as follows:
§ 131.12 Antidegradation Policy and Implementation Methods.
(a) The State shall develop and adopt a statewide antidegradation policy and identify
the methods for implementing such policy pursuant to this subpart. The anti degradation
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policy and implementation methods shall, at a minimum, be consistent with the
following:
(2) Where the quality of the waters exceed levels necessary to support the protection
and propagation offish, 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
continuing planning process, that allowing lower water quality is necessary 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
ensure water quality adequate to protect existing uses fully. Further, the state shall assure
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 nonpoint source control.
(b) The State shall develop and make available to the public statewide methods for
implementing the antidegradation policy adopted pursuant to paragraph (a) of this
section. A State's antidegradation implementation methods shall be designed to achieve
antidegradation protection consistent with paragraph (a) of this section. Such methods
must ensure that:
(1) High quality waters are identified on a parameter-by-parameter basis or on a water
body-by-water body basis at the State's discretion, but must not exclude any water body
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from high quality water protection solely because not all of the uses specified in CWA
section 101(a)(2) are attained: and
(2) The State will only make a Finding that lowering high water quality is necessary,
pursuant to paragraph (a)(2) of this section, after conducting an alternatives analysis that
evaluates a range of non-degrading and minimally degrading practicable alternatives that
have the potential to prevent or minimize the degradation associated with the proposed
activity. If the State can identify any-practicable alternatives, the State must choose one
of those alternatives to implement when authorizing a lowering of high water quality.
8. Add § 131.14 to subpart B to read as follows:
§ 131.14 Water quality standards variances.
States may, at their discretion, grant variances subject to the provisions of this section
and public participation requirements at § 131.20(b). A water quality standards variance
(WQS variance) is a time-limited designated use and criterion for a specified pollutant(s),
permittee(s), and/or water body or waterbody segment(s) that reflect the highest
attainable condition during the specified time period. WQS variances are water quality
standards subject to EPA review and approval or disapproval and must be consistent with
this section. Any such WQS variances adopted after [effective date of the final rule] must
be consistent with this regulatory section.
(a) Applicability:
(1) All applicable WQS not specifically addressed by the WQS variance
remain applicable.
(2) (i) Where a state adopts a WQS variance, the State regulations must
continue to reflect the underlying designated use and criterion unless the
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State adopts and EPA approves a revision to the underlying designated use
and criterion consistent with § 131.10 or § 131.11.
(ii) The interim requirements specified in the WQS variance are in effect
during the term of the WQS variance and apply for CWA section 402
permitting purposes and in issuing certifications under section 401 of the
Act for the permittee(s), pollutant(s), and/or water body or waterbody
segment(s) covered by the WQS variance. For these limited purposes, the
interim requirements will be the standards applicable for purposes of the
CWA under 40 CFR 131.21(c)-(e).
(3) A WQS variance shall not be granted if the designated use and criterion
addressed by the proposed WQS variance can be achieved by
implementing technology-based effluent limits required under sections
30 Kb) and 306 of the Act.
(b) Submission Requirements:
(1) A WQS variance must specify the following:
(i) Identifying information: A WQS variance must identify the
pollutant(s), permittee(s), and/or the water body or waterbody
segment(s) to which the WQS variance applies.
(ii) WQS that apply during a variance for CWA section 402
permitting purposes and in issuing certifications under section
401 of the Act: A WQS variance must specify:
(A) The highest attainable interim use and interim numeric
criterion, or
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(B) An interim numeric effluent condition that reflects the
highest attainable condition for a specific permittee(s) during the
term of the variance. Neither (A) nor (B) of this paragraph shall
result in any lowering of the currently attained water quality
unless a time-limited lowering of water quality is necessary
during the term of a variance for restoration activities, consistent
with paragraph (b)(2)(ii) of this section.
(iii) Date the WQS variance will expire: States must include an
expiration date for all WQS variances, consistent with paragraph
(b)(2) of this section. WQS variances must be as short as
possible but expire no later than 10 years after state adoption.
(2) The State must submit a demonstration justifying the need for a WQS
variance. For a WQS variance to a use specified in section 101(a)(2) of the
Act or a sub-category of such a use, the State must submit a
demonstration that attaining the designated use and criterion is not feasible
during the term of the WQS variance because:
(i) One of the factors listed in § 131.10(g) applies, or
(ii) Actions necessary to facilitate restoration through dam removal
or other significant wetland or stream reconfiguration activities
preclude attainment of the designated use and criterion while the
actions are being implemented.
(3) For a waterbody variance, the state must identify and document any cost-
effective and reasonable best management practices for nonpoint source
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controls related to the pollutant(s) and location(s) specified in the WQS
variance that could be implemented to make progress towards attaining the
designated use and criterion. A State must provide public notice and
comment for any such documentation.
(c) Implementing variances in NPDESpermits: Consistent with paragraph (a)(2)(ii)
of this section, a WQS variance serves as the basis of a water quality-based
effluent limit included in a NPDES permit for the period the variance is in effect.
Any limitations required to implement the WQS variance shall be included as
conditions of the NPDES permit for the permittee(s) subject to the WQS variance.
(d) WQS variance renewals: EPA may approve a WQS variance renewal if the State
meets the requirements of this section and provides documentation of the actions
taken to meet the requirements of the previous WQS variance. For a waterbody
WQS variance renewal, the state must also provide documentation of whether and
to what extent BMPs have been implemented to address the pollutant(s) subject to
the WQS variance and the water quality progress achieved during the WQS
variance period. Renewal of a WQS variance may be disapproved if the applicant
did not comply with the conditions of the original WQS variance, or otherwise
does not meet the requirements of this section.
9. Add § 131.15 to subpartB to read as follows:
§ 131.15 Compliance schedule authorizing provisions.
A State may, at its discretion and consistent with state law, authorize schedules of
compliance for water quality-based effluent limits (WQBELs) in NPDES permits by
including a compliance schedule authorizing provision in its water quality standards or
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implementing regulations. Any such provision is a water quality standard subject to EPA
review and approval and must be consistent with sections 502(17) and 301(b)(l)(C) of
the Act. Individual compliance schedules issued pursuant to such authorizing provisions
are not themselves water quality standards. Individual compliance schedules must be
consistent with CWA section 502(17), the state's EPA-approved compliance schedule
authorizing provision, and the requirements of §§ 122.2 and 122.47.
B. Subpart C-Procedures for Review and Revision of Water Quality Standards
10. Amend § 131.20 by revising paragraphs (a) and (b) to read as follows:
§ 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 3 years,
hold public hearings for the purpose of reviewing applicable water quality standards and,
as appropriate, modifying and adopting standards: in particular, ^any water body
segment with water quality standards that do not include the uses specified in section
101(a)(2) of the Act shall be re-examined every 3 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 standards
accordingly. Similarly, a State shall re-examine its water quality criteria to determine if
any criteria should be revised in light of any new or updated CWA section 304(a) criteria
recommendations to assure that designated uses continue to be protected. 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 hearings for the purpose of
reviewing or revising water quality standards, in accordance with provisions of State \aw-
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EPA's water quality management regulation (10 CFR 130.3(b)(6)) andEPA's public
participation regulation (40 CFR part 25). The proposed water quality standards revision
and supporting analyses shall be made available to the public prior to the hearing.
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11. Amend § 131.22 by revising paragraph (b) to read as follows:
§ 131.22 EPA promulgation of water quality standards.
(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. To constitute an
Administrator's determination, such determination must:
(1) Be signed by the Administrator or his or her duly authorized delegate, and
(2) Contain a statement that the document constitutes an Administrator's
determination under section 303(c)(4)(B) of the Act.
C. Subpart D-Federally Promulgated Water Quality Standards
12. Amend § 131.34 by revising paragraph (c) to read as follows:
§ 131.34 Kansas.
(c) Water quality standard variances. The Regional Administrator, EPA Region 7, is
authorized to grant variances from the water quality standards in paragraphs (a) and (b) of
this section where the requirements of this paragraph (c) § 131.14 are met.
13. Amend § 131.40 by revising paragraph (c) to read as follows:
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§ 131.40 Puerto Rico.
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(c) Water quality standard variances. The Regional Administrator, EPA Region 2, is
authorized to grant variances from the water quality standards in paragraphs (a) and (b) of
this section where the requirements of this paragraph (c) §131.14 are met.
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