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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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