July 2015
EPA 820-S-15-002
Summary of WQS Regulatory Revisions Final Rule
EPA finalized updates to the federal water
quality standards (WQS) regulation at 40
CFR Part 131 that interprets part of the
Clean Water Act (CWA). The updates result
in a better-defined pathway for states,
territories, and authorized tribes to
improve water quality and protect high
quality waters through enhancements in
the regulation's effectiveness, WQS
transparency, and opportunities for
meaningful public engagement at the state,
territorial, tribal and local levels.
EPA initially proposed revisions to the WQS
regulation on September 4, 2013.
Administrator's Determination
Final Revision: Amends §131.22(b) to add a
requirement that an Administrator's
Determination must be signed by the
Administrator (or duly authorized delegate)
and include a statement that the document
is an Administrator's determination for
purposes of section 303(c)(4)(B) of the Act.
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
Final Revision: Amends §131.10(g) to provide that
where a state/tribe removes or revises a use specified
in CWA section 101(a)(2) or a subcategory of such a
use that is not attainable, the highest attainable use
(HAD) shall be adopted in its place.
HAD is defined as "the modified aquatic life, wildlife,
or recreation use that is both closest to the uses
specified in section 101(a)(2) of the Act and attainable,
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."
The final rule also amends §131.10(g), §131.100), and
§131.10(k) to clarify when a use attainability analysis
(UAA) is and is not needed. The final rule defines the
term "non-101(a)(2) use" and amends §131.10(a) to
clarify that for such uses while a UAA is not required,
the state/tribe 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/tribal action.
Goal: Provide clear requirements and ensures
appropriate WQS are in place to help restore and
maintain robust aquatic ecosystems and promote
resilience to emerging water quality stressors.
Triennial Reviews
Final Revision: Amends §131.20(a)to clarify the
"applicable water quality standards" that must
be reviewed triennially. The final rule also
requires that if a state or tribe chooses not to
adopt new or revised criteria for any parameters
for which EPA has published new or updated
criteria recommendations under CWA section
304(a), they must explain their decision when
reporting the results of their triennial review to
EPA under CWA section 303(c)(l) and 40 CFR
131.20(c).
Goal: Ensure public transparency and clarify
existing requirements, so that states and tribes
update WQS when necessary and consider the
latest science as reflected in the CWA section
304(a) criteria recommendations.
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.
The requirements have provided a strong
foundation for water quality-based controls,
including water quality assessments, impaired
waters lists and total maximum daily loads,
under CWA section 303(d), as well as for
water quality-based effluent limits in
discharge permits under CWA section 402.
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July 2015
EPA 820-S-15-002
Summary of WQS Regulatory Revisions Final Rule
Antidegradation
Final Revision: Amends provisions of §131.12 to
specify that states/tribes:
(1) may identify high quality waters on either
a parameter-by-parameter approach, or
on a waterbody-by-waterbody approach that
does not exclude water bodies from Tier 2
protection solely because water quality does
not exceed levels necessary to support all of
the CWA section 101(a)(2) uses. When using
the water body approach, states/tribes must
involve the public in any decisions pertaining
to when to provide Tier 2 protection, and the
factors considered in such decisions.
(2) must 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/tribe must only find
that the lowering is necessary if one of those
alternatives is selected for implementation.
(3) must provide an opportunity for public
involvement during the development and any
subsequent revisions of antidegradation
implementation methods (whether or not
those methods are adopted into rule), and to
make the methods available to the public.
Goal: Promote public transparency and enhance
antidegradation implementation through clearer
requirements and expectations.
WQS Variances
Final Revision: Adds §131.14 to provide a
comprehensive regulatory structure for and
explicitly authorize the use of WQS variances. The
final rule clarifies:
(1) that a WQS variance is a water quality
standard subject to EPA review and approval or
disapproval.
(2) how WQS variances relate to other CWA
programs and specifies the information that the
state/tribe must adopt in any WQS variance,
and/or the water body or waterbody segments
to which the WQS variance applies, and a
quantifiable expression of the highest attainable
condition.
(3) that states/tribes must submit to EPA
supporting documentation that demonstrates
why the WQS variance is needed and justifies the
term and interim requirements.
(4) that states/tribes must reevaluate WQS
variances longer than five years on an
established schedule with public involvement.
Goal: Promote the appropriate use of WQS
variances when applicable WQS are not attainable in
the near-term but may be attainable in the future,
and provide regulatory certainty to states, tribes, the
regulated community, stakeholders, and the public in
making progress toward attaining designated uses
and criteria that protect such uses.
Provisions Authorizing the Use of
Permit-Based Compliance Schedules
Final Revision: Adds §131.15 to clarify that a
permitting authority may only issue compliance
schedules for water quality-based effluent
limitations in National Pollutant Discharge
Elimination System permits if the state or tribe
has authorized the use of such compliance
schedules in their WQS or implementing
regulations. The final rule requires that such
authorizing provisions must be approved by
EPA as WQS under CWA section 303(c).
Goal: Clearly articulate in regulation what must
be done for states and tribes to be able to
utilize permit compliance schedules, consistent
with the CWA and the EPA Administrator's
decision in In the Matter of Star-Kist Caribe,
Inc., and ensure public transparency on
state/tribal decisions to allow permit
compliance schedules.
The final rule also includes other changes to
correct mistakes and inconsistencies in Part
131.
For more information and to access
supplemental documents and the docket for
this rulemaking, see EPA's WQS website at:
http://water.epa.gov/lawsregs/lawsguidance
/wqs index.cfm.
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