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Supplemental Information for
Water Quality Standards Regulatory Revisions Final Rule
Comparison of Final Rule Language and Proposed Rule Language
NOTE: THE FOLLOWING REGULATORY TEXT IS A COMPARISON OF THE
PROPOSED RULE LANGUAGE AND THE FINAL RULE LANGUAGE. STRIKEOUTS
INDICATE DELETION OF PROPOSED TEXT AND UNDERLINES INDICATE
ADDITION OF FINAL RULE TEXT.
THE TEXT BELOW SHOWS ONLY THE PROVISIONS AFFECTED BY THE
REVISIONS IN THIS RULEMAKTNG. IT DOES NOT REPRESENT THE ENTIRETY
OF THE PART 131 REGULATION.
PART 131—WATER QUALITY STANDARDS
§ 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 that protect the
designated uses. * * *
* * * * *
§ 131.3 Definitions.
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(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 applicable water
quality standards, even after the application of the technology-based 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 Commonwealth of the Northern Mariana
Islands, and Indian Tribes that EPA determines to be eligible for purposes of water quality
standards program.
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(m) Highest attainable use is the modified 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(g4
based on the evaluation of the factor(s) in § 131.10(g) that preclude(s) attainment of the use and
any other information or analyses that were used to evaluate attainability. There is no required
highest attainable use where the State demonstrates the relevant use specified in section
101(a)(2) of the Act and sub-categories of such a use are not attainable.
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(n) Practicable, in the context of § 131.12(a)(2)(ii), means technologically possible, able to be
put into practice, and economically viable.
(o) A water quality standards variance (WQS variance) is a time-limited designated use and
criterion for a specific pollutant(s) or water quality parameter(s) that reflect the highest attainable
condition during the term of the WQS variance.
(p) Pollutant Minimization Program, in the context § 131.14, is a structured set of activities to
improve processes and pollutant controls that will prevent and reduce pollutant loadings.
(q) Non-10 l(a)(2) use is any use unrelated to the protection and propagation offish, shellfish,
wildlife or recreation in or on the water.
§ 131.5 EPA authority.
(a) * * *
(1) Whether the State has adopted designated water uses which that are consistent with the
requirements of the Clean Water Act;
(2) Whether the State has adopted criteria that protect the designated water uses based on
sound scientific rationale based on sound scientific rationale consistent with § 131.11;
(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 these-any State adopted
anti degradation implementation methods are consistent with § 131.12;
(4) Whether any State adopted WQS variance is consistent with § 131.14;
(5) Whether any State adopted provision authorizing the use of schedules of compliance for
water quality-based effluent limits inNPDES permits is consistent with § 131.15;
(46)Whether the State has followed rts-applicable legal procedures for revising or adopting
standards;
(57) Whether the State standards which do not include the uses specified in section 101(a)(2)
of the Act are based upon appropriate technical and scientific data and analyses, and
(68) Whether the State submission meets the requirements included in § 131.6 of this part
and, for Great Lakes States or Great Lakes Tribes (as defined in 40 CFR 132.2) to conform to
section 118 of the Act, the requirements of 40 CFR part 132.
(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)(6£) 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)(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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§131.10 Designation of uses.
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(a) Each State must specify appropriate water uses to be achieved and protected. The
classification of the waters of the State must take into consideration the use and value of water
for public water supplies, protection and propagation offish, shellfish and wildlife, recreation in
and on the water, agricultural, industrial, and other purposes including navigation. If adopting
new or revised designated uses other than the uses specified in section 101(a)(2) of the Act or
removing designated uses. States must submit documentation justifying how their consideration
of the use and value of water for those uses listed in this paragraph appropriately supports the
State's action. A use attainability analysis may be used to satisfy this requirement. In no case
shall a State adopt waste transport or waste assimilation as a designated use for any waters of the
United States.
(e) Prior to adding or removing any use, or establishing sub categories of a use, tho State shall
provide notice and an opportunity for a public hearing under § 131.20(b) of this regulation.
[Removed and Reserved!
(g) Pursuant to § 131.1 Q(t4r States may designate a use, or remove a use or a sub category of-et
use as long as the action does not remove protection for that is not an existing use, and-if the
State can demonstrate conducts a use attainability analysis as specified in § 131.10(j) that
demonstrates attaining the use is not feasible because of one of the six factors in this paragraph.
If a State adopts a_new or revised water quality standards standard based on a required use
attainability analysis, the State shall also adopt the highest attainable use, as defined in §
131.3(m). and tho criteria to protect that use. To moot this requirement. States may, at their
discretion, utilize their current use categories or subcategories, develop new use categories or
subcategories, or adopt another use which may include a location specific use.
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(j) A State must conduct a use attainability analysis as described in § 131.3(g), and §
131.10(g), whenever:
(1) The State designates for the first time, or has previously designated uses for a water
body4eF-tho first tme, uses 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 designate a sub-category of such a use
which that requires criteria less stringent than previously applicable.
(k) A State is not required to conduct a use attainability analysis whenever:
(1) The State designates for the first time, or has previously designated uses for a water
body for the first time , uses 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 tho Act or designate designates a sub-category of a use specified in section 101(a)(2) of the
Act which that requires criteria at least as stringent as previously applicable^ or
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(3) The State wishes to remove or revise a designated use that is a non-101(a)(2) use. In
this instance, as required by § 131.10(a), the State must submit documentation justifying how its
consideration of the use and value of water for those uses listed in § 131.10(a) appropriately
supports the State's action, which may be satisfied through a use attainability analysis.
§ 131.11 Criteria.
(a) * * *
(2)Toxicpollutants. 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 130).
(b)Form of criteria: In establishing criteria, States should:
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§ 131.12 Antidegradation Policy policy and Implementation implementation Methods
methods.
(a) The State shall develop and adopt a statewide antidegradation policy. The
antidegradation policy shall, at a minimum, be consistent with the following:
(2) Where the quality of the waters oxcood exceeds 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 ensure assure water quality adequate to protect
existing uses fully. Further, the sState shall ensure 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 management practices for nonpoint source control.
(i) The State may identify waters for the protections describe in (a)(2) of this section on a
parameter-by-parameter basis or on a water body-by-water body basis. Where the State identifies
waters for antidegradation protection on a water body-by-water body basis, the State shall
provide an opportunity for public involvement in any decisions about whether the protections
described in (a)(2) of this section will be afforded to a water body, and the factors considered
when making those decisions. Further, the State shall not exclude a water body from the
protections described in (a)(2) of this section solely because water quality does not exceed levels
necessary to support all of the uses specified in section 101(a)(2) of the Act.
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(ii) Before allowing any lowering of high water quality, pursuant to (a)(2) of this section,
the State shall find, after an analysis of alternatives, that such a lowering is necessary to
accommodate important economic or social development in the area in which the waters are
located. The analysis of alternatives shall evaluate a range of practicable alternatives that would
prevent or lessen the degradation associated with the proposed activity. When the analysis of
alternatives identifies one or more practicable alternatives, the State shall only find that a
lowering is necessary if one such alternative is selected for implementation.
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(b) The State shall develop and make available to the public statewide methods for
implementing the antidegradation policy that are, at a minimum, consistent with the State's
policy and with adopted pursuant to paragraph (a) of this section. The State shall provide an
opportunity for public involvement during the development and any subsequent revisions of the
implementation methods, and shall make the methods available to the public. A State's
anti degradation implementation methods shall bo designed to achieve antidogradation 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 bedy-
by water body basis at the State's discretion, but must not exclude any water body 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 te
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.
§ 131.14 Water quality standards variances.
States may, at their discretion, gran^adopt WQS variances as defined in § 131.3(o). Such a
WQS variance is 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 standard subject to EPA review and approval or
disapproval, and must bo consistent with this section. Any such WQS variances adopted a&er
[effective date of the final rulel must be consistent with this regulatory section.
(a) Applicability:
£1} All applicable WQS not specifically addressed by the WQS variance remain
applicable. A WQS variance may be adopted for a permittee(s) or water
body/waterbody segment(s) specified in the WQS variance.
(2) {i^Where a state State adopts a WQS variance, the State regulations-must
continue to reflect-retain, in its standards, the underlying designated use and
criterion addressed by the WQS variance, unless the State adopts and EPA
approves a revision to the underlying designated use and criterion consistent with
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§ 131.10 e^and § 131.11. All other applicable standards not specifically
addressed by the WQS variance remain applicable.
(3) (ii) The interim requirements specified in the A WQS variance are in effect during
the term of the WQS variance and apply for CWA section 102 permitting
purposes and m, once adopted by the State and approved by EPA, shall be the
applicable standard for purposes of the Act under 40 CFR 131.21(d)-(e), for the
purposes of developing NPDES permit limits and requirements under
301(b)(l)(C), where appropriate consistent with (a)(l) of this section. States and
other certifying entities may also use an approved WQS variance when issuing
certifications under section 401 of the Act, for the permittee(s), pollutant(s)r
ami/or water body or watorbody sogmont(s) covered by the WQS variance. Per
these limited purposes,the interim requirements will be the standards applicable
for purposes of the CWA under 10 CFR 131.21 (c) (o).
(4)04 A WQS variance shall State may not be granted adopt WQS variances if the
designated use and criterion addressed by the proposed WQS variance can be
achieved by implementing technology-based effluent limits required under
sections 301(b) and 306 of the Act.
(b) Submission-Requirements for Submission to EPA:
£1} A WQS variance must specify the following-include:
(i) Identifying information: A WQS variance must identify Identification of
the pollutant(s), pormittoo(s), and/or water quality parameter(s), and the
water body-er-/waterbody segment(s) to which the WQS variance
applies. Discharger(s)-specific WQS variances must also identify the
permittee(s) subject to the WQS variance.
(ii) WQS that apply during a variance for CWA section 102 permitting
purposes and in issuing certifications under section 101 of the Ae£-A
WQS variance must specify: The requirements that apply throughout the
term of the WQS variance. The requirements shall represent the highest
attainable condition of the water body or waterbody segment applicable
throughout the term of the WQS variance based on the documentation
required in (b)(2) of this section. The requirements shall not result in any
lowering of the currently attained ambient water quality, unless a WQS
variance is necessary for restoration activities, consistent with paragraph
(b)(2)(i)(A)(2) of this section. The State must specify the highest
attainable condition of the water body or waterbody segment as a
quantifiable expression that is one of the following:
(A) The highest attainable interim use and interim numeric critorion,-ef
For discharger(s)-specific WQS variances:
(1) The highest attainable interim criterion, or
(2) The interim effluent condition that reflects the greatest
pollutant reduction achievable, or
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(3) If no additional feasible pollutant control technology can be
identified, the interim criterion or interim effluent condition
that reflects the greatest pollutant reduction achievable with the
pollutant control technologies installed at the time the State
adopts the WQS variance, and the adoption and
implementation of a Pollutant Minimization Program.
(B) An interim numeric effluent condition that reflects the highest
attainable condition for a specific pormittoo(s) during the term of-tbe
¥ariance. 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.
For WQS variances applicable to a water body or waterbody segment:
(1) The highest attainable interim use and interim criterion, or
(2) If no additional feasible pollutant control technology can be
identified, the interim use and interim criterion that reflects the
greatest pollutant reduction achievable with the pollutant
control technologies installed at the time the State adopts the
WQS variance, and the adoption and implementation of a
Pollutant Minimization Program.
(Hi) A statement providing that the requirements of the WQS variance are
either the highest attainable condition identified at the time of the
adoption of the WQS variance, or the highest attainable condition later
identified during any reevaluation consistent with (b)(l)(v) of this
section, whichever is more stringent.
(iv) (iii) Date the WQS variance will expire: States must include an
expiration date for all WQS variances, consistent with paragraph (b^S^
ef-this section. WQS variancos-The term of the WQS variance,
expressed as an interval of time from the date of EPA approval or a
specific date. The term of the WQS variance must only be as long as
necessary to achieve the highest attainable condition sher-t as possible
but expire no later than 10 years after state adoption and consistent with
the demonstration provided in paragraph (b)(2) of this section. The State
may adopt a subsequent WQS variance consistent with this section.
(v) For a WQS variance with a term greater than five years, a specified
frequency to reevaluate the highest attainable condition using all existing
and readily available information and a provision specifying how the
State intends to obtain public input on the reevaluation. Such
reevaluations must occur no less frequently than every five years after
EPA approval of the WQS variance and the results of such reevaluation
must be submitted to EPA within 30 days of completion of the
reevaluation.
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(vi) A provision that the WQS variance will no longer be the applicable
water quality standard for purposes of the Act if the State does not
conduct a reevaluation consistent with the frequency specified in the
WQS variance or the results are not submitted to EPA as required by
(b)(l)(v) of this section.
(2) The supporting documentation must include:
(i) Tho State must submit a demonstration justifytftg-Documentati on
demonstrating the need for a WQS variance.
{3)(A) For a WQS variance to a use specified in section 101(a)(2) of the
Act or a sub-category of such use, the State must submit a demonstration
demonstrate that attaining the designated use and criterion is not feasible
during the term of the WQS variance because:
One of the factors listed in § 131 . 10(g) applies is met or
Actions necessary to facilitate lake, wetland, or stream
restoration through dam removal or other significant wetland OF
stfeam-reconfiguration activities preclude attainment of the
designated use and criterion while the actions are being
implemented.
For a WOS variance to a non-101(a)(2) use, the State must submit
documentation justifying how its consideration of the use and value of
the water for those uses listed in § 131 . 10(a) appropriately supports the
WQS variance and term. A demonstration consistent with (b)(2)(i)(A) of
this section may be used to satisfy this requirement.
(ii) Documentation demonstrating that the term of the WOS variance is only as
long as necessary to achieve the highest attainable condition. Such documentation
must justify the term of the WOS variance by describing the pollutant control
activities to achieve the highest attainable condition, including those activities
identified through a Pollutant Minimization Program, which serve as milestones
for the WOS variance.
(Hi) In addition to (i) and (ii) of this section, for a WOS variance that applies to a
water body or waterbody segment:
Identification and documentation of For a waterbody variance,
the state must identify and document any cost-effective and reasonable
best management practices for nonpoint source controls related to the
pollutant(s) or water quality parameter(s) and locationfsVwater body or
waterbody segment(s) specified in the WQS variance that could be
implemented to make progress towards attaining the underlying
designated use and criterion. A State must provide public notice and
comment for any such documentation.
(B) Any subsequent WOS variance for a water body or waterbody
segment must include documentation of whether and to what extent best
management practices for nonpoint source controls were implemented to
address the pollutant(s) or water quality parameter(s) subject to the
WOS variance and the water quality progress achieved.
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(c) Implementing WQS variances in NPDESpermits: Consistent with paragraph (a)(2)(ii) of
this soctioftr-a-A WQS variance serves as the basis of a water quality based offluont limrt
included m-a-applicable water quality standard for implementing NPDES permit
permitting requirements pursuant to § 122.44(d) for the period term of the WQS variance
is in effect. Any limitations required and requirements necessary to implement the WQS
variance shall be included as enforceable 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.
§ 131.15 Compliance schedule authorizing provisions. Authorizing the use of
schedules of compliance for water quality-based effluent limits in NPDES permits.
A-If a State may, at its discretion and consistent with state law, intends to authorize the use of
schedules of compliance for water quality-based effluent limits (WQBELs) in NPDES_permitsi
the State must adopt by including a permit compliance schedule authorizing provision, in its
water quality standards or implementing regulations. Any s Such authorizing provision is a
water quality standard subject to EPA review and approval under section 303 of the Act 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 122^4^
§ 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 adopted pursuant to §§
131.10—131.15 and Federally promulgated water quality standards and, as appropriate,
modifying and adopting standards; in partictdarr. The State shall also re-examine any water body
waterbody 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 sbaJJ-
ro examine its water quality criteria to determine if any criteria should bo revised in light of any
new or updated CWA section 301(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. In addition, if a State
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does not adopt new or revised criteria for parameters for which EPA has published new or
updated CWA section 304(a) criteria recommendations, then the State shall provide an
explanation when it submits the results of its triennial review to the Regional Administrator
consistent with CWA section 303(c)(l) and the requirements of § 131.20(c).
(b) Public participation. The State shall hold one or more public hearings for the purpose
of reviewing er-water quality standards as well as when revising water quality standards, in
accordance with provisions of State law and EPA'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.
§ 131.22 EPA promulgation of water quality standards.
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(b) The Administrator may also propose and promulgate a regulation, applicable to one or
more States-navigable waters, 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 that a new or revised standard is necessary to meet the requirements of the Act,
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.
§ 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 § 131.14 are met.
§ 131.40 Puerto Rico.
(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 § 131.14 are met.
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