WATER QUALITY STANDARDS
HANDBOOK
DRAFT CHAPTER:
Water Quality Standards Variances
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The WQS Handbook does not change or impose any legally binding requirements on the EPA, states, Tribes,
the public, or the regulated community. This document does not constitute a regulation, nor does it change
or substitute for any Clean Water Act (CWA) provision or EPA regulations. In the case of any conflict
between this Handbook and the CWA or EPA regulations, the statute and regulations control.
DRAFT CHAPTER: WQS Variances
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Table of Contents
6 INTRODUCTION 1
6.1 BACKGROUND 3
6.1.1 Purpose of WQS Variances and Summary of Federal WQS
Variance Regulation 3
6.1.2 WQS Variances and Maintaining Currently Attained Water Quality ...5
6.2 WQS VARIANCE APPLICABILITY AND SCOPE
(40 CFR 131.14(a) AND 131.14(b)(1)(i)) 7
6.2.1 WQS Variances and Technology-Based Effluent Limits (TBELs)
(40 CFR 131.14(a)(4)) 8
6.2.2 Discharger-specific WQS Variances: Single and
Multiple Dischargers 8
6.2.3 Waterbody or Waterbody Segment WQS Variances 14
6.3 WQS VARIANCE REQUIREMENTS 17
6.3.1 Demonstrating the Need for a WQS Variance 17
6.3.1.1 WQS Variances to CWA Section 101(a)(2) Uses and
Subcategories of Such Uses 18
6.3.1.2 WQS Variances to "Non-101(a)(2)" Uses 28
6.3.1.3 Considerations When Demonstrating the Need for Multiple
Discharger WQS Variances 29
6.3.1.4 Considerations When Demonstrating the Need for
Waterbody WQS Variances 30
6.3.2 Identifying the Highest Attainable Condition (HAC)
(40 CFR 131.14(b)(1)(ii)) 30
6.3.2.1 Identifying the HAC for Discharger-Specific
WQS Variances 33
6.3.2.2 Identifying the HAC for Waterbody and Waterbody Segment
WQS Variances 39
6.3.2.3 Identifying PMP Activities for Either Discharger-Specific or
Waterbody WQS Variances 41
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6.3.2.4 Analyses for Identifying the HAC for a CWA Section 101(a)(2)
Use or Subcategory of Such Use 43
6.3.2.5 Analyses for Identifying the HAC for Non-101(a)(2) Uses... 46
6.3.3 Determining the Term of the WQS Variance 47
6.3.4 Reevaluations for WQS Variances with a Term of Greater than Five
Years 50
6.3.4.1 Reevaluate at Least Every Five Years
(40 CFR 131.14(b)(1 )(v)) 51
6.3.4.2 Most Stringent HAC as the Applicable WQS
(40 CFR131.14 (b)(1)(iii)) 53
6.3.4.3 When the Reevaluation is Not Completed or Results Are Not
Submitted (40 CFR 131.14(b)(1)(vi)) 54
6.3.4.4 Aligning Reevaluation with Triennial Review or NPDES
Permit Reissuance 54
6.3.5 Subsequent WQS Variances 58
6.4 IMPLEMENTING WQS VARIANCES 60
6.4.1 State and Authorized Tribe WQS Variance General Policies 60
6.4.2 NPDES Permits 61
6.4.2.1 Relationship Between the WQS Variance Term and NPDES
Permit Term 62
6.4.2.2 WQS Variances and NPDES Permit Compliance Schedules 64
6.4.3 CWA Section 401 Certification 68
6.4.4 Waterbody Assessment and TMDLs 68
6.5 WQS VARIANCES, DESIGNATED USE REVISIONS, AND SITE-SPECIFIC
CRITERIA 71
6.5.1 WQS Variances and Designated Use Revisions 71
6.5.2 WQS Variances and Site-Specific Criteria 72
6.6 WQS VARIANCES AND TRIBAL RESERVED RIGHTS 73
6.7 FEDERAL PROMULGATIONS FOR STATES AND TRIBES 74
6.8 ADDITIONAL RESOURCES 75
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List of Tables
Table 6-1. Considerations for Discharger-Specific WQS Variances 13
Table 6-2. Example of Results from a Hypothetical Analysis of Pollutant
Control Technologies 45
Table 6-3. S ummary Comparison of Permit Compliance Schedule and
WQS Variance 65
List of Figures
Figure 6-1. Example Diagram of Aligning WQS Variance Reevaluation with
Triennial Review 55
Figure 6-2. Example Diagram of Aligning WQS Variance Reevaluation with
Permit Reissuance 57
Figure 6-3. Example of a Permit Compliance Schedule Used with a
WQS Variance 67
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List of Acronyms and Abbreviations
BMPs
Best Management Practices
CFR
Code of Federal Regulations
CSO
Combined Sewer Overflow
CWA
Clean Water Act
ELGs
Effluent Limitation Guidelines
EPA
U.S. Environmental Protection Agency
FCA
Financial Capability Assessment
GLI
Great Lakes Initiative
HAC
Highest Attainable Condition
HAU
Highest Attainable Use
MDV
Multiple Discharger WQS Variance
NPDES
National Pollutant Discharge Elimination Syste
NPS
Nonpoint Source
PWS
Public Water Supply
POTWs
Publicly Owned Treatment Works
PPCPs
Pharmaceutical and Personal Care Products
QAPP
Quality Assurance Project Plan
TBELs
Technology-Based Effluent Limits
TMDLs
Total Maximum Daily Loads
UAA
Use Attainability Analysis
WLA
Wasteload Allocation
WQBELs
Water Quality-Based Effluent Limitations
WQS
Water Quality Standards
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AS discussed in Draft Chapter 2: Designated Uses of this Handbook, the objective
of the Clean Water Act (CWA) as stated in CWA Section 101(a) "is to restore and
maintain the chemical, physical, and biological integrity of the Nation's waters." CWA
Section 101(a)(2) further states, "it is the national goal that wherever attainable, an interim
goal of water quality which provides for the protection and propagation offish, shellfish
and wildlife and provides for recreation in and on the water be achieved...". In light of these
objectives, CWA Section 303 requires that states and authorized Tribes1 develop water
quality standards (WQS) for navigable waters within their jurisdiction and such WQS must
protect the uses specified in CWA Section 101(a)(2) unless shown to be unattainable.
A WQS variance is a tool that provides time to states, territories, and authorized
Tribes to incrementally improve water quality when and where the designated use and
associated criterion are shown to be unattainable for a period of time. This tool can be
particularly helpful if there is uncertainty as to what designated use may be ultimately
attainable in the waterbody at the time the WQS variance is adopted. A WQS variance is
a time-limited designated use and associated criterion that provides states, authorized
Tribes, and dischargers2 the time and flexibility to make incremental water quality
improvements (also referred to as "incremental water quality progress") reflecting the
best water quality that can be attained in the given time period and that is adopted with
transparent and accountable measures on the progress that is expected to occur. In
2015, the U.S. Environmental Protection Agency finalized the WQS variance regulation
at 40 Code of the Federal Register (CFR) 131.14. which established an explicit framework
for the adoption of WQS variances.
WQS variances serve the national goal in Section 101(a)(2) of the CWA and the ultimate
objective of the Act to "restore and maintain the chemical, physical, and biological
integrity of the Nation's waters" because WQS variances are "... narrow in scope and
duration and are designed to make progress toward water quality goals."3 The WQS
variance regulation strikes a balance between providing flexibility to states, authorized
Tribes, and dischargers and ensuring transparency and accountability on how the
waterbody will be restored and maintained. Specifically, a WQS variance provides a legal
1 Hereafter referred to as "states and authorized Tribes." "State" in the CWA and this document refers to a state,
the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and
the Commonwealth of the Northern Mariana Islands. "Authorized Tribe" refers to those federally recognized Indian
Tribes with authority to administer a CWA WQS program.
2 For the purposes of this chapter, unless specified otherwise, the terms "discharger" and "permittee" are used
interchangeably to refer to a point source subject to a National Pollutant Discharge Elimination System (NPDES)
permit or CWA Section 401 certification condition.
3 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51035 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 1
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basis to derive less stringent4 water quality-based effluent limits (WQBELs)5 for the
duration of the WQS variance and for the specific waterbody and pollutant identified
in the WQS variance, while requiring incremental improvements in water quality to
occur during the WQS variance term. In addition, the regulation requires that states
and authorized Tribes provide the public with an opportunity to offer input on the WQS
variance during required public hearings and WQS variance reevaluations for WQS
variances longer than five years.
Protecting water resources from changing conditions, such as increased water
temperatures; more frequent and severe droughts; increases in extreme wet weather
events; increased stormwater runoff due to growing urbanization; and water withdrawals
for agricultural, industrial, and municipal purposes, depends on the ability to "maintain
and restore," as well as enhance, the waterbody's resilience to stressors. However, past
management strategies may not be adequate to mitigate the impacts of stressors to a
waterbody.6 Using WQS to maintain or build a margin of safety in water quality affords a
waterbody increased resilience in the face of future stressors.
The WQS program provides a holistic approach to promote system resilience and
facilitates efficient coordination and implementation of water quality management
actions. This chapter presents key considerations when structuring a WQS variance.
Carefully structuring WQS variances can contribute to increasing or maintaining
waterbody resilience to changing conditions through actions that make incremental
improvements to water quality. For example, subsection 6.3.2.1 of this chapter discusses
how a state or authorized Tribe may choose to include additional Pollutant Minimization
Program (PMP) activities in a WQS variance. PMP activities could provide additional
information on how to manage waterbodies to build waterbody resilience to stressors
such as studying pollutant loadings or sources, or activities that support waterbody
resiliency through novel pollutant reduction strategies.
WQS also provide a key opportunity to ensure that states, authorized Tribes, and
dischargers are maximizing opportunities to improve water quality in areas used by
overburdened and underserved communities. For example, when identifying and
adopting the highest attainable condition (HAC) in the WQS variance, it is critical
that states and authorized Tribes consider how the water is being used by the affected
community, including overburdened and underserved communities who may often
rely on local waters for food, recreation, economic opportunities, and overall benefits
to quality of life. States and authorized Tribes can obtain the information they need
to determine whether and how to adopt WQS variances through meaningful public
engagement. This chapter describes key areas where public input could be valuable when
adopting WQS variances.
4 Less stringent than a WQBEL based on the underlying designated use and associated criterion.
5 For the purposes of this chapter, unless specified otherwise, "WQBEL" in the context of implementing the WQS
variance in an NPDES permit includes any limitations and requirements necessary to implement the WQS variance.
See 40 CFR 131.14(c).
6 EPA. 2011. Aquatic Ecosystems, Water Quality, and Global Change: Challenges of Conducting Multi-stressor Global
Change Vulnerability Assessments. EPA, Office of Research and Development. Washington, DC 20460. EPA/600/
R-11/011F. August 2011. https://cfpub.epa.aov/ncea/global/recordisplay.cfm7deid = 231508.
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6.1 BACKGROUND
6.1.1 Purpose of WQS Variances arid Summary of
Federal WQS Variance Regulation
For many years, the EPA has encouraged states and authorized Tribes to utilize
WQS variances, as appropriate, to implement actions that will improve water quality
when and where the designated use and associated criterion are unattainable for a
period of time. To provide national consistency and regulatory certainty on adopting
WQS variances, the EPA finalized revisions to its WQS variance regulation7 in 2015 at
40 CFR Part 131. In addition, the 1995 "Water Quality Guidance for the Great Lakes
System" (i.e., Great Lakes Initiative [GLI] rulemaking at 40 CFR Part 132) contains
some additional provisions on WQS variances applicable to states and authorized Tribes
covered by that regulation.
40 CFR 131.14 establishes an explicit framework for the adoption of WQS variances that
states and authorized Tribes can use to implement adaptive management approaches8
to improve water quality. The regulation provides certainty to states, authorized Tribes,
the regulated community, and the public that WQS variances are a legal WQS tool
and provides requirements to ensure that WQS variances will only be used when the
designated use and associated criterion are unattainable for a period of time.9
A 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" (40 CFR 131.3(oD. All WQS variances are WQS; therefore,
to be effective for CWA purposes, they must be adopted10 and submitted to the EPA
for review and approval under CWA Section 303(c".11 WQS variances must meet the
7 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51020 (August 21, 2015). EPA issued its proposed rule
at Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54518 (September 4, 2013).
8 Adaptive management is a concept generally recognized as exploring alternative ways to meet management
objectives, predicting the outcomes of alternatives based on the current state of knowledge, implementing one
or more of these alternatives, monitoring to learn about the impacts of management actions, and using the results
to update knowledge and adjust management actions. See EPA's Response to Comments. Water Quality Standards
Regulatory Revisions, Chapter 3 Issue Category 8: Variances, Docket # EPA-HQ-OW-2010-0606, August 2015,
pg. 3-300, https://www.requlations.aov/document/EPA-HO-OW-2010-0606-Q344. For additional discussion on
adaptive management approaches in the context of WQS variances, see section 6.3.2.3 of this chapter.
9 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51035 (August 21. 2015).
10 A WQS must be a legally binding provision adopted or established pursuant to state or Tribal law. CWA Section
303(a)-(c) uses the terms "adopt," "law," "regulations," and "promulgate" when referring to WQS and the EPA's
regulation (40 CFR 131.3(D) specifies that WQS are "provisions of state or federal law." The EPA considers
documents incorporated by reference into state or Tribal law to be legally binding provisions adopted or established
pursuant to state or Tribal law. Please see Chapters 1 and 7 of this Handbook for a discussion on the EPA's authority
and duty to review and approve or disapprove new or revised WQS.
" CWA Section 303(c)(2)-(3) and 40 CFR 131.21(c).
DRAFT CHAPTER: WQS Variances 3
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requirements of 40 CFR Part 131, including 40 CFR 131.14, and the public participation
requirements specified in 40 CFR 131.20(b) and 40 CFR 25.5. The state or authorized
Tribe must review a WQS variance on a triennial basis, just like any other WQS.12 This
triennial review requirement is independent of the requirement at 40 CFR 131,14(bX1Xv)
to reevaluate, at a specified frequency of no less than every five years, the HAC of a
WQS variance with a term of greater than five years. For more information on triennial
reviews, see section 6.3.4.4 of this chapter and Chapter 7: Water Quality Standards and
the Water Quality-Based Approach to Pollution Control of this Handbook. For more
information on revaluations for WQS variances with a term of greater than five years,
see section 6.3.4 of this chapter.
Further, the EPA distinguishes WQS variances, as described in the regulation and in
this Handbook, from variances as described in the EPA's permitting regulation at
40 CFR 122.2 and 40 CFR 125.3.13 Those types of variances are related to certain
National Pollutant Discharge Elimination System (NPDES) Program permit requirements
and effluent guideline modifications and are not WQS variances.
As mentioned above, both 40 CFR 131.14 and the GLI at 40 CFR Part 132 contain
provisions for WQS variances. For receiving waters that drain into the Great Lakes Basin,
states and authorized Tribes must adopt WQS variances consistent with both the GLI and
40 CFR 131.14. In such situations where both apply, the state or authorized Tribe must
adhere to the more stringent of the two regulations.14
12 CWA Section 303(c)(1) and 40 CFR 131.20(a).
® Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54531 (September 4, 2013).
14 Ibid,
DRAFT CHAPTER: WQS Variances 4
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Where a discharger is facing challenges meeting WQBELs based on the applicable WQS,
there are many options and resources available as a path forward. The EPA recommends
states, authorized Tribes, and dischargers first explore technical and financial assistance
options to address compliance challenges and improve facility operations. For example, as
one component of the EPA's Laaoon Wastewater Treatment Systems Action Plan C2022").15
the EPA's First Stop Toolbox for Lagoons is a good resource for small communities with
lagoon wastewater treatment systems to diagnose non-compliance issues and potential
paths forward. Where technical and financial assistance are not sufficient to remedy the
compliance challenges, states and authorized Tribes may pursue WQS variances to achieve
incremental improvements in water quality while allowing time for advances in treatment
technologies, pollutant control practices, or other changes in circumstances that may
provide for attainment of the underlying designated use and criterion in the future.
A WQS variance is a useful tool when working towards meeting the CWA goals because
it applies only for a defined term, retains the underlying designated use and associated
criteria for all pollutants with the sole exception of those specified in the WQS variance,
and requires dischargers to make as much incremental water quality progress as
feasible toward the underlying designated use and criterion during the defined term.
However, where incremental water quality progress is not feasible, a state or authorized
Tribe may consider whether a designated use revision is appropriate, consistent with
40 CFR 131.10. See section 6.5.1 of this chapter for more information on WQS variances
and designated use revisions. See Draft Chapter 2: Designated Uses of this Handbook for
further discussion of designated uses and the requirements for designated use revisions.
Where the WQBEL based on the designated use and associated criterion is achievable,
but the discharger needs additional time to modify or upgrade treatment facilities to
meet its WQBEL, an NPDES permit compliance schedule consistent with 40 CFR 122.47
may be the appropriate tool. See section 6.4.2.2 of this chapter for more information on
WQS variances and permit compliance schedules.
Where one or more criteria for a particular waterbody or waterbody segment is more
stringent than necessary to achieve the designated use, the state or authorized Tribe may
consider developing and adopting site-specific criteria consistent with 40 CFR 131.11. See
section 6.5.2 of this chapter for information on WQS variances and site-specific criteria.
6.1.2 WQS Variances and Maintaining Currently
Attained Water Quality
While the WQS variance regulation at 40 CFR 131.14 has similar provisions as the
regulation governing designated use revisions C40 CFR 131.101 40 CFR 131.14 does
not prohibit a WQS variance where the designated use is also an existing use because
"[u]nlike a designated use change which changes the ultimate desired condition for a
15 EPA. 2022. Lagoon Wastewater Treatment Action Plan: Supporting Small, Rural and Tribal Communities. (EPA-
832-B2-2022). https://www.epa.gov/system/files/documents/2022-10/Laaoon%20Action Plan FINAL.pdf.
DRAFT CHAPTER: WQS Variances 5
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water body, the purpose of a WQS variance is to provide a mechanism that will facilitate
incremental progress toward achieving the currently adopted designated use (and
thus the existing use, if one is not being attained) in an accountable and transparent
manner."16 Further, 40 CFR 131.14(bX1Xii 17 ensures that water quality continues to make
progress towards meeting the CWA objective and protects the ability of a downstream
water to meet its applicable WQS by requiring that the WQS variance not result in any
lowering of the currently attained ambient water quality. This provision includes an
exception when a state or authorized Tribe adopts a WQS variance for the purpose of
facilitating lake, wetland, or stream restoration through dam removal or other significant
reconfiguration activities (40 CFR 131.14(bX2XiXAX2D. For example, such a WQS
variance could allow a temporary lowering of the currently attained water quality due
to the temporary flush of sediments when a dam is removed because this WQS variance
would also facilitate long-term improvements for both the downstream waters and the
waterbody subject to the WQS variance by restoring the natural hydrology.
'6 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category 8:
Variances, Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-315.
https://www.reaulations.gov/document/EPA-HQ-OW-2010-0606-0344.
17 The EPA notes that Appendix F to 40 CFR 132.2 similarly addresses the concern about preventing the lowering
of currently attained water quality by stating that the use of WQS variances "shall not apply to new Great Lakes
dischargers or recommencing dischargers." For more information, see the EPA's Response to Comments, Water
Quality Standards Regulatory Revisions, Chapter 3 Issue Category 8: Variances, Docket # EPA-HQ-OW-2010-0606,
August 2015, pg. 3-322, https://www.reaulations.gov/document/EPA- l-IQ-OW-2010 -0606-0344.
DRAFT CHAPTER: WQS Variances 6
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6.2 WQS VARIANCE APPLICABILITY AND
g SCOPE (40 CFR 131.14(a)
- AND 131.14(b)(1)(D)~ »
States and authorized Tribes have the flexibility to adopt a WQS variance for a single
discharger, multiple dischargers, or a waterbody or waterbody segment, depending
upon the case specific situation (40 CFR 131.14(a)). To ensure that WQS variances serve
the purposes of the CWA, the EPA WQS regulation at 40 CFR 131.14(b)(1) provides specific
requirements describing when, where, and how WQS variances apply.
First, once approved by the EPA, a WQS variance applies for the purposes of developing
NPDES permit limits and requirements under CWA Section 301(b)(1)(C) for the
permittees and/or waterbody or waterbody segments for which the state or authorized
Tribe has adopted the WQS variance.18 It only applies for the specific pollutant(s) or
water quality parameter(s) addressed by the WQS variance19 and only for the term
specified in the WQS variance.20 A certifying entity may also use a WQS variance when
issuing certifications under CWA Section 4Q1.21
Second, to ensure that the state or authorized Tribe continues to make progress towards
achieving the CWA Section 101(a) objective, it is important that its WQS reflect the
ultimate water quality goal, Therefore, the EPA's regulation at 40 CFR 131.14(a)(2)
requires that the state or authorized Tribe retain the underlying designated use and
criterion in its WQS so that it continues to be the basis for:
^ Deriving NPDES permits for all other dischargers not covered by the WQS
variance,
Identifying threatened and impaired waters under CWA Section 303(d). and
Establishing total maximum daily loads (TMDLs).
Please see section 6.4 of this chapter for more information on implementing WQS
variances. In addition, "[a] 11 other applicable standards not specifically addressed by the
WQS variance remain applicable."22
» 40 CFR131.14(a)(T and 40 CFR 131.14(a)(3).
« 40 CFR 131.14(b)(D(i).
» 40 CFR 131.14(b)(1)(iv).
« 40 CFR 131.14(a)(3).
22 40 CFR 131.14(a)(2).
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6.2.1 WQS Variances and Technology-Based Effluent
Limits (TBELs) (40 CFR 131.14(a)(4))
Technology-based effluent limits (TBELs) represent the minimum level of control that
must be imposed in a permit issued under Section 402 of the CWA. TBELs are required
under CWA Sections 301(b) and 306 and can be imposed in a permit using one of three
methods described at 40 CFR 125.3(c). The EPA considers "technology-based effluent
limits required under Section 301(b)" to include existing technology-based permit effluent
limitations whether derived based on nationally promulgated Effluent Limitation Guidelines
(ELGs) or, in the absence of a promulgated ELG, derived on a case-by-case basis.
The WQS variance regulation specifies "[a] State may not adopt WQS variances if
the designated use and criterion addressed by the WQS variance can be achieved by
implementing technology-based effluent limits required under sections 301(b) and 306
of the Act."23 Thus, in a situation where WQS can be attained by implementing TBELs,
a WQS variance cannot be used, and the discharger must implement those TBELs. For
more information on water quality- and technology-based permit limits, visit the EPA's
NPDES Permit Limits webpage.24
6.2.2 Discharger-Specific WQS Variances: Single and
Multiple Dischargers
Typically, a state or authorized Tribe adopts a single discharger WQS variance for a specific
pollutant or water quality parameter. When determining the basis to justify the WQS
variance and identify the HAC, the state or authorized Tribe will evaluate the facts specific
to that discharger and receiving waterbody. The state or authorized Tribe can then tailor
the WQS variance to the specific challenges the discharger is facing and the actions the
discharger will implement to make incremental progress toward the HAC during the term
of the WQS variance. This approach allows for targeted public outreach and engagement
on each WQS variance and ensures that the public has discharger-specific information
when providing input on the WQS variance during the public hearing.
However, the EPA recognizes that a state or authorized Tribe may have multiple
dischargers experiencing similar WQS attainment challenges in meeting their WQBELs
based on the designated use and criterion for the same pollutant, regardless of whether
they are located on the same waterbody. In such instances, a state or authorized Tribe
can adopt single discharger WQS variances for as many dischargers as needed, or it
could instead adopt a multiple discharger WQS variance (MDV).25 An MDV must meet
all the requirements of 40 CFR 131.14. Adopting an MDV also involves some additional
considerations for identifying the dischargers, waterbody or waterbody segment(s) and
the HAC, as discussed in the remainder of this subsection.
23 40 CFR 131.14(a)(4).
24 NPDES Permit Limits webpage: https://www.epa.gov/npdes/npdes-permit-limits.
25 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51036 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 8
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An MDV can administratively streamline the adoption of WQS variances for similarly
situated dischargers that share specific characteristics or economic or technical
considerations. To support adoption of an MDV, a state or authorized Tribe would
provide a single technical rationale and discharger-specific documentation. Appropriate
use of an MDV is highly dependent on considerations such as the applicable pollutants,
parameters, dischargers, waterbody conditions, current effluent conditions, actions
needed to achieve the pollutant reductions, and community characteristics.26 For this
reason, an MDV may not be appropriate or practical for all situations.
For example, an MDV may be appropriate if five publicly owned treatment works
(POTWs) face similar economic challenges meeting their WQBELs for the same
pollutantCs) or water quality parameter(s), have similar construction and existing
treatment systems, and are situated on similar types of waterbodies in communities with
similar economic situations, size, and demographics such that the cost of installing the
pollutant control technology needed to meet the pollutant limits would cause substantial
and widespread economic and social impact in all five communities at that point in time.
However, an MDV may not be appropriate or practical for a diverse group of facilities
(i.e., differing facility, waterbody, or community characteristics).
Discharger-specific WQS variances, whether for single or multiple dischargers, must
identify the permittee(s) subject to the WQS variance and the waterbody or waterbody
segment to which the WQS variance applies (40 CFR 131.14(bX1)fiD. For an MDV,
the EPA generally expects states and authorized Tribes to satisfy this requirement by
including a list of the dischargers that will be covered and the name and location of the
waterbody or waterbody segment(s) receiving the discharge. This approach ensures that
the public has the full list of dischargers covered by the WQS variance when providing
input on the WQS variance before the state or authorized Tribe submits the MDV to the
EPA. Once the EPA reviews and approves an MDV, the state or authorized Tribe may
implement the MDV in the NPDES permit for each listed discharger.
25 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-290, https://www.reQulations.gov/document/EPA-HO"
QW-2010- 0606-0344: Water Quality Standards Regulatory Revisions. 80 Fed. Reg. 51036, 51040 (August 21,
2015).
DRAFT CHAPTER: WQS Variances 9
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However, where the state or authorized Tribe does not have all the discharger-specific
information to identify all the dischargers that need the WQS variance at the time of
adoption, the state or authorized Tribe would include the known dischargers, and the
applicable waterbody or waterbody segment, in the WQS variance, consistent with 40
CFR 131.14(b)(1)(i). To cover the unknown dischargers, the state or authorized Tribe may
include eligibility requirements in the WQS variance. Specifically, "[a]s an alternative
to identifying the specific dischargers at the time of adoption of a WQS variance
for multiple dischargers, states and authorized tribes may adopt specific eligibility
requirements in the WQS variance. This will make clear what characteristics a discharger
must have in order to be subject to the WQS variance for multiple dischargers."27
As the EPA further explained in the preamble to the 2015 WQS regulation, "It is EPA's
expectation that states and authorized Tribes that choose to identify the dischargers in
this manner will subsequently make a list of the facilities covered by the WQS variance
publicly available (e.g., posted on the state or authorized tribal Web site)."28 To maintain
public transparency, the state or authorized Tribe should update this list as dischargers
are determined to meet the eligibility requirements and subsequently receive coverage
under the MDV. The EPA also expects the state or authorized Tribe to specify in the MDV
where the public may find this list.
It is critical for the eligibility requirements to be well justified and sufficiently detailed to
ensure an objective determination that only those dischargers that meet the eligibility
requirements will receive coverage under the MDV. Thus, these eligibility requirements
should include:29
1. A description of the specific characteristics of the discharge and discharger
necessary for the WQS variance justification to apply (e.g., type of discharger
[public or private], industrial classification, facility size and/or effluent quality,
treatment train [existing or needed], or pollutant treatability), and
57 Water Quality Standards Regulatory Revisions. 80 Fed. Reg. 51036 (August 21, 2015).
28 Ibid.
® EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-321, https://www.reaulations.gov/docutnent/EPA-l-IQ
QW-2010-0606-0344.
DRAFT CHAPTER: WQS Variances 10
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2. Sufficient information to demonstrate that the designated use and associated
criterion is not feasible to achieve for a discharger meeting the characteristics
in #1, consistent with the "supporting documentation" requirements at
40 CFR 131.14(b)(2). For example:
a. Where 40 CFR 131.10(g)(6) is used, a description of the specific community
financial and socioeconomic characteristics used to demonstrate that
attaining the designated use and criterion is infeasible, and/or
b. Where the demonstration is influenced by the type of receiving water, the
characteristics of the receiving water that was used to demonstrate that
attaining the designated use and criterion is infeasible, (e.g., flow rates, size,
water levels, hydrologic modifications, etc.).
All WQS variances, including MDVs, must still meet 40 CFR 131.14(b)(1Xi) to identify
the waterbody or waterbody segment(s) subject to the WQS variance. To meet this
requirement for known dischargers in an MDV, the state or authorized Tribe must
include the waterbodies or waterbody segment(s) impacted by the dischargers listed.
To meet this requirement for the unknown dischargers in an MDV using eligibility
requirements, the state or authorized Tribe must specify in the MDV the potential
receiving waterbodies or waterbody segment(s) to which the WQS variance may apply.
This will help ensure that the public, including downstream communities and those with
environmental justice concerns, are made aware of where a WQS variance could affect
their local waterbody so they may effectively provide input on the WQS variance and can
meaningfully engage early and often in the WQS variance process.
In addition, the state or authorized Tribe must still identify the HAC of the MDV,
consistent with 40 CFR 131.14(b)(1)(ii). Thus, when using eligibility requirements to
identify the dischargers subject to the WQS variance, the state or authorized Tribe must
provide adequate documentation that the adopted HAC reflects the greatest pollutant
reduction achievable for any discharger meeting the eligibility requirements. See section
6.3.2 of this chapter for information on identifying the HAC.
Once approved by the EPA, the MDV, including the eligibility requirements, is the
applicable WQS and must be used for implementing NPDES permitting requirements
for the term of the WQS variance. At the time of N PDES permitting, the permitting
authority would determine whether a discharger meets the eligibility requirements,
and thus is subject to the MDV, before implementing the MDV into the discharger's
permit. Because the EPA does not need to take an additional WQS approval action in this
instance, the EPA expects the permitting authority to document in the NPDES permit
fact sheet how each discharger meets the eligibility requirements. Accordingly, the EPA
encourages states and authorized Tribes using eligibility requirements to maximize public
notice, outreach, engagement, and opportunity to comment on whether the discharger
qualifies for coverage under the MDV, as documented in the permit fact sheet, during
the permit issuance or renewal process. This is particularly important in situations where
the public may have a strong interest to provide information and participate in the
decision (e.g., downstream communities and those with environmental justice concerns).
DRAFT CHAPTER: WQS Variances 11
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To streamline the permitting process when using eligibility requirements, a state or
authorized Tribe should consider identifying in the WQS variance the information that
a discharger must submit to the state or authorized Tribe (e.g., as part of its NPDES
permit renewal request) to demonstrate that it meets the eligibility requirements for
the MDV. The EPA retains NPDES permit oversight over permitting authority decisions
to incorporate a WQS variance into a discharger's NPDES permit, including when such
decisions are based on a determination that a discharger met the eligibility requirements
to be subject to a WQS variance.
Because WQS variances are dependent upon discharger-specific characteristics and
circumstances, it is very important that the permitting and WQS programs closely
collaborate during the WQS variance development and implementation process. This
is especially important when using an MDV with eligibility requirements because the
permitting authority determines whether a discharger meets the eligibility requirements
specified in the applicable WQS. Collaboration between the permitting and WQS
programs will ensure that any WQS variance is structured in a manner consistent with
the EPA's regulation. As with any WQS revision, states and authorized Tribes should also
work closely with their EPA regional WQS counterpart.
DRAFT CHAPTER: WQS Variances 12
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Table 6-1 provides considerations for comparing the two types of discharger-specific
WQS variances.
TABLE 6-1: CONSIDERATIONS FOR DISCHARGER-SPECIFIC WQS VARIANCES
Single Discharger • WQS variance justification and HAC requirements
WQS Variance based on facility-specific analysis and data.
Reflects a customized plan to achieve
incremental progress during the term of the
WQS variance for the facility.
Public knows the discharger being covered by the
WQS variance in advance of the public hearing
process for each WQS variance.
Similarly situated dischargers can be evaluated as
a group and identified based on facility-specific
analysis and data.
Public knows the dischargers being covered by
the WQS variance in advance of the public hearing
process for the MDV.
• WQS rulemaking burden is reduced compared to
adopting many single discharger WQS variances.
I MDV using Eligibility Requirements
State or authorized Tribe identifies the
characteristics of the group of dischargers (i.e.
eligibility requirements) that would meet the
justification used for the WQS variance.
Determination of whether a discharger meets the
eligibility requirements to be covered by the WQS
variance is determined during that discharger's
permitting process.
Dischargers are covered by the WQS variance only
when facility-specific analysis and data show it
meets the eligibility requirements. A complete list
of covered facilities is made publicly available.
• WQS rulemaking burden is reduced compared to
adopting many single discharger WQS variances.
See subsection 6.3.1.3 of this chapterfor a discussion of additional requirements and
recommendations for demonstrating the need for an MDV. See subsection 6.3.3 of this
chapter for additional considerations for the term of an MDV.
Multiple Discharger
WQS Variance (MDV)
DRAFT CHAPTER: WQS Variances 13
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6.2.3 Waterbody or Waterbody Segment WQS Variances
States, authorized Tribes, and dischargers often pursue discharger-specific WQS
variances where it is infeasible for a discharger to comply with a WQBEL based on the
designated use and criterion for a particular pollutant for a period of time. However,
there may be situations where the waterbody or waterbody segment is not attaining the
designated use and criterion for a specific pollutant(s) or water quality parameter(s) due
to the contributions of both point and nonpoint sources (IMPS),30 and a holistic approach
could be used to make feasible progress toward achieving that designated use and
criterion. In such a situation, a state or authorized Tribe may find a WQS variance for the
waterbody or waterbody segment to be useful. This type of WQS variance is referred to
as a "waterbody WQS variance." While a discharger-specific WQS variance applies only
to those permittees identified in the WQS variance, a waterbody WQS variance applies
to the waterbody itself rather than to any specific permittee or source. "A waterbody
variance provides time for the state or [authorized] tribe to work with both point and
nonpoint sources to determine and implement adaptive management approaches on a
waterbody/watershed scale to achieve pollutant reductions and strive toward attaining
the waterbody's designated use and associated criteria."31
Just like any WQS variance, a waterbody WQS variance is only applicable for CWA
Section 402 purposes and for issuing certifications under CWA Section 401, while
the underlying designated use and criterion remain in place for other CWA purposes
that relate to the long-term goals of the waterbody such as CWA Section 303(d).
Therefore, when a permitting authority is implementing the waterbody WQS variance
in an NPDES permit, it must consider the HAC specified in the waterbody WQS
variance when deriving permit limits for dischargers to that waterbody or waterbody
segment.32 For example, a state or authorized Tribe could adopt a waterbody WQS
variance for a persistent organic pollutant in a situation where all dischargers to the
waterbody are already implementing pollutant control technologies with the greatest
pollutant reduction that is feasible. In such a case, the state or authorized Tribe has
the option of adopting an HAC for a waterbody WQS variance that requires the
permittees to maintain the greatest pollutant reduction achievable with their currently
installed pollutant control technology while the PMP adopted in the WQS variance is
implemented to make further water quality progress (40 CFR 131.14(b)(1)(ii)(B)(2)).
Subsection 6.3.2.2 provides more detail on identifying the HAC for a waterbody WQS
variance and subsection 6.3.2.3 provides more detail on identifying PMP activities.
30 A nonpoint source (NPS) is any source of water pollution that does not meet the legal definition of "point source" in
Section 502(14) of the CWA. NPS pollution is pollution caused when rainfall or snowmelt, moving over and through
the ground, picks up and carries natural and human-made pollutants, depositing them into lakes, rivers, wetlands,
coastal waters, and ground waters.
31 Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54532 (September 4, 2013).
32 40 CFR 131.14(c). See also EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter
3 Issue Category: Variances, Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-318, https://www.reaulations.
aov/document/EPA-HO-QW-2010-0606-0344.
DRAFT CHAPTER: WQS Variances 14
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Additional Requirements for Waterbody WQS Variances
To increase transparency and consideration of multiple sources of pollution, including
NPS, the regulation at 40 CFR 131.14(bX2XiiiXA requires states and authorized Tribes
to provide to the public for comment documentation that identifies "any cost-effective
and reasonable best management practices for nonpoint source controls related to
the pollutant(s) or water quality parameter(s) and water 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." "Nonpoint sources can have a
significant bearing on whether the designated use and associated criteria for the water
body are attainable. It is essential for states and authorized tribes to consider how
controlling these sources through application of cost-effective and reasonable best
management practices (BMPs) could impact water quality before adopting such a WQS
variance. Doing so informs the highest attainable condition, the duration of the WQS
variance term, and the state's or authorized tribe's assessment of the interim actions
that may be needed to make water quality progress."33 Understanding the contribution
of NPS of pollutants is also an important part of increasing public transparency by
providing the public with information about the potential impact of controlling NPS
pollutants and helping inform the WQS variance reevaluation process. See section
6.3.2.2 of this chapter for more information identifying the HAC for a waterbody WQS
variance, and section 6.3.4 of this chapter for more information on the WQS variance
reevaluation process.
In addition, for any subsequent waterbody WQS variance, the state or authorized Tribe
must document whether and to what extent any BMPs were implemented and the water
quality progress that was achieved during the previous waterbody WQS variance
C40 CFR 131,14fbX2XiiiXBy) (see section 6.3.5 of this chapter). This documentation
will help states and authorized Tribes work with the public to determine if there are
additional opportunities to implement BMPs and reduce pollutant loads in a subsequent
waterbody WQS variance.34
:m Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51038 (August 21, 2015).
34 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-367 to 369, https://www.reaulations.gov/document/EPA-
HQ-OW-2010-0606-0344.
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It is important to note that 40 CFR 131.14 does not require states and authorized Tribes
to implement NPS controls or otherwise regulate sources of NPS pollutants. When
establishing the requirements of a waterbody WQS variance, states and authorized
Tribes have sole discretion to decide whether to include requirements for NPS control
actions for particular NPS. However, it is important for states and authorized Tribes
to understand the pollutant contributions from NPS when considering a waterbody
WQS variance regardless of the source of those contributions. For example, waterbody
impairment as a result of chloride loading is a water quality issue throughout many
urban watersheds in cold climates. Often, the seasonality and timing of the chloride
exceedances indicate that the impairments are caused by the application of road salt for
deicing purposes. After being applied to roads and walking surfaces, road salt may enter
surface waters either directly through runoff or as part of permitted discharges after
entering storm sewers or combined sewer collection systems. In this situation, it would
be important for a state or authorized Tribe to understand both the point source and
NPS contributions of chloride when considering whether a waterbody WQS variance is
appropriate and identifying any NPS BMPs that could be included in the waterbody WQS
variance and implemented to achieve the greatest reduction of chloride over the term
of the WQS variance.
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6.3 WQS VARIANCE REQUIREMENTS
6.3.1 Demonstrating the Need for a WQS Variance
The state or authorized Tribe is required to demonstrate the need for a WQS
variance C40 CFR 131.14(b)(2)(i'). The regulation does not require this demonstration
to be part of the WQS variance itself; but requires it to be provided to the EPA as part of
the state or authorized Tribe's supporting documentation.
The EPA review under CWA Section 303(c) involves determining 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 analvsis"(4Q CFR 131.5(a)(7)).
What constitutes "appropriate technical and scientific data and analysis" to demonstrate
the need for a WQS variance can vary depending on the specific circumstances, such
as the applicable designated use, the type of WQS variance, the number of permittees
affected, and the characteristics of the parameter and waterbody or waterbody segment
to which the WQS variances applies. For example, a single discharger WQS variance
usually includes an evaluation of a single parameter for a single discharger for a limited
period of time while an MDV or waterbody WQS variance would usually include an
evaluation of a single parameter for multiple dischargers and thus may be more complex
and require more time and resources to develop a streamlined WQS variance covering
more than one discharger.35
^ Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51041 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 17
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6.3.1.1 WQS Variances to CWA Section 101(a)(2) Uses and
Subcategories of Such Uses
For a WQS variance that applies to a CWA Section 101CaX2) use or a subcategory of
such uses,36 states and authorized Tribes must demonstrate that the designated use and
associated criterion are not feasible to attain throughout the term of the WQS variance on
the basis of one37 of the seven regulatory factors specified in 40 CFR 131.14CbX2XiXA~):
1. Naturally occurring pollutant concentrations prevent the attainment of the use.
2. Natural, ephemeral, intermittent, or low flow conditions or water levels prevent
the attainment of the use, unless these conditions may be compensated for by the
discharge of sufficient volume of effluent discharges without violating State water
conservation requirements to enable uses to be met.
3. Human caused conditions or sources of pollution prevent the attainment of the
use and cannot be remedied or would cause more environmental damage to
correct than to leave in place.
4. Dams, diversions, or other types of hydrologic modifications preclude the
attainment of the use, and it is not feasible to restore the waterbody to its
original condition or to operate such modification in a way that would result in the
attainment of the use.
5. Physical conditions related to the natural features of the water body, such as a
lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated
to the water quality, preclude attainment of aquatic life protection uses.
6. Controls more stringent than those required by sections 301(b) and 306 of the
Act would result in substantial and widespread economic and social impact.
7. Actions necessary to facilitate lake, wetland, or stream restoration through dam
removal or other significant reconfiguration activities preclude attainment of the
designated use and criterion while the actions are being implemented.
States and authorized Tribes may consider any factor in 40 CFR 131.14(bX2XiXAX1 or 2) to
demonstrate the need for a WQS variance. The following discussion focuses on Factors 2,
3, 6, and 7. The EPA recommends that states and authorized Tribes work closely with their
EPA regional WQS counterparts after developing a draft rationale for how such factors
may demonstrate the need for a WQS variance in light of the regulatory requirements.
36 Uses specified in CWA Section 101(a)(2). referred to as "101(a)(2) uses," are those uses that provide for the
protection and propagation offish (including aquatic invertebrates), shellfish, and wildlife, and recreation in and on
the water (e.g., aquatic life use, recreation use) or a subcategory of such uses (e.g., warm water aquatic life use, cold
water aquatic life use, and primary contact recreation).
37 States and authorized Tribes may choose to identify more than one factor that affects the feasibility of attaining
the designated use. However, to be consistent with the EPA's regulation and to demonstrate the need for the WQS
variance, the state or authorized Tribe must demonstrate that one factor on its own precludes attainment of the
designated use during the term of the WQS variance. A state or authorized Tribe cannot use portions of different
factors together if one factor is not fully satisfied.
DRAFT CHAPTER: WQS Variances 18
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"Factor 2"
Factor 2 can be used to demonstrate the need for a WQS variance where "[n]atural,
ephemeral, intermittent or low flow conditions or water levels prevent the attainment of
the use, unless these conditions may be compensated for by the discharge of sufficient
volume of effluent discharges without violating State water conservation requirements to
enable uses to be met" throughout the term of the WQS variance (40 CFR 131.10(g)(2)).
Factor 2 consists of two related clauses. The first is "natural, ephemeral, intermittent or
low flow conditions or water levels prevent the attainment of the use," and the second is
"unless these conditions may be compensated for by the discharge of sufficient volume
of effluent discharges without violating State water conservation requirements to enable
uses to be met."
Reading 40 CFR 131.10(g)(2) in its entirety, Factor 2 would not apply to situations that
result in high flow conditions. Although the first part of the clause separately specifies
"low" flow conditions, the second clause clarifies that for Factor 2 to be considered as
the basis for demonstrating a use is not attainable during the term of the WQS variance,
a state or authorized Tribe must evaluate whether the applicable flow conditions in the
first clause (i.e., natural flow conditions, ephemeral flow conditions, intermittent flow
conditions, or low flow conditions) can be compensated for by a sufficient volume of
effluent flow. Thus, Factor 2 applies to situations where the absence of sufficient flow
makes a use unattainable during the term of the WQS variance. Factor 2 requires a state
or authorized Tribe to consider whether this insufficient flow can be addressed by effluent
discharges. For example, an effluent discharge creates a perennial flow in what naturally
would be an ephemeral or intermittent water and the augmented flow now supports
certain fish species or life stages. In this situation, because the insufficient flow can be
addressed by the effluent discharge, a state or authorized Tribe may not use Factor 2 to
justify a WQS variance in order to temporarily remove the applicable aquatic life use to
obtain less stringent NPDES permit limitations for a discharger.
Giving meaning to only the first clause could allow a state or authorized Tribe to use Factor
2 to justify the need for a WQS variance in circumstances where higher flows or water
levels preclude attainment of a designated use without consideration of whether those
higher flows or water levels could be addressed in a way that would still enable uses to
be met. This reading of Factor 2 would be inconsistent with the goals and requirements
of the CWA, including those at CWA Section 101(a)(2) to provide for the protection and
propagation offish, shellfish, and wildlife and provide for recreation in and on the water,
wherever attainable, and the intent of a WQS variance to make incremental progress in
water quality.
Consideration of high flows might be relevant to other factors used to demonstrate
the need for a WQS variance, such as Factors 3 or 4. However, similar to how Factor
2 requires consideration of whether insufficient flow conditions or water levels can be
compensated for by effluent discharges, Factors 3 and 4 would require an evaluation of
whether those high flow conditions could be remedied or restored during the term of
the WQS variance, respectively.
DRAFT CHAPTER: WQS Variances 19
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It is also important to note that Factor 2 may be considered for WQS variances where
the insufficient flow is a result of anthropogenic activities, such as water withdrawals, but
actions will be taken to minimize the impact of such activities on the designated use. The
EPA recommends that a state or authorized Tribe works closely with its EPA regional WQS
counterpart if it is interested in a WQS variance for such a situation.
"Factors"
Factor 3 can be used to demonstrate the need for a WQS variance where the "[h]uman
caused conditions or sources of pollution prevent the attainment of the use and cannot
be remedied or would cause more environmental damage to correct than to leave in
place"38 throughout the term of the WQS variance. First, to show that "human caused
conditions or sources of pollution prevent the attainment of the use," the state or
authorized Tribe should:
1. Evaluate the different sources of the human caused conditions or pollution
(including point, nonpoint, and legacy sources),
2. Determine the extent to which the condition or pollution is anthropogenic (to
address how the conditions or sources of pollution are "human caused"), and
3. Characterize the impact of the condition or pollution on the designated use (to
address how such conditions or sources of pollution "prevent the attainment of
the use").
Second, the state or authorized Tribe must show that the human caused conditions or
sources of pollution might preclude attainment of the designated use because they either
"cannot be remedied," or "would cause more environmental damage to correct than to
leave in place."
38 40 CFR 131.10(g)(3).
DRAFT CHAPTER: WQS Variances 20
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To show human caused conditions or sources of pollution "cannot be remedied," there are
two key principles:
1. "Cannot be remedied" means neither the state or authorized Tribe nor any
discharger(s) can remedy the human caused conditions or sources of pollution in
the waterbody during the term of the WQS variance. The state or authorized Tribe
is responsible for demonstrating that the human caused condition or sources of
pollution cannot be remedied after taking into consideration controls for the
different, contributing sources of pollution. Before adopting a WQS variance, the
state or authorized Tribe needs to determine whether there are actions that it
could take to remedy all or portions of the human caused condition or source(s)
of pollution; and
2. The state, authorized Tribe, or discharger would need to consider whether any
pollutant reduction options,39 implemented alone or together (whether at the same
time or sequentially) would remedy the condition or sources of pollution. Options
to consider would include installing pollutant control technology, minimizing the
pollutant from entering the effluent or the waterbody directly, and relocating or
eliminating the discharge. The state, authorized Tribe, or discharger should also
consider the associated timeframe needed to implement such remedies.
The state or authorized Tribe's Factor 3 "cannot be remedied" demonstration should
evaluate the following types of available information:40
Monitoring data to determine the current ambient conditions,
Data or maps showing the geographical extent of the pollution, and
Engineering studies and literature of the relevant pollutant reduction options and
BMPs that could be implemented, and documentation that none of the options or
practices, if implemented, would result in attaining the applicable designated use
and criterion during the term of the WQS variance.
To show the human caused condition or sources of pollution "would cause more
environmental damage to correct than to leave in place," one application of this factor
could be where controlling the pollutant itself would cause environmental damage. For
example, dredging a waterbody to remove contaminated sediment may be needed to attain
the designated use. However, doing so may stir up the pollutant in the sediment and release
the pollutant into the waterbody column, thus causing more environmental damage to the
waterbody for a period of time as compared to leaving the contaminated sediment in place.
Whether such a scenario justifies a WQS variance using this portion of Factor 3 would be
determined on a case-by-case basis based on the site-specific circumstances.
A different application of this factor could involve waters impacted by Combined Sewer
Overflows (CSOs). Where CSO communities have or will achieve significant reductions
in their CSOs in accordance with their approved Long Term Control Plan but monitoring
39 Pollutant reduction options include both pollutant control technologies and pollution prevention and source
reduction measures.
40 Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54535 (September 4, 2013).
DRAFT CHAPTER: WQS Variances 21
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indicates that the community still cannot achieve the WQBEL necessary to protect the
recreation use, states may believe there are more environmentally beneficial alternatives
to additional CSO controls. On January 19, 2024, the EPA issued a memo41 to provide
considerations for the EPA's review of revisions to state42 recreational uses and associated
bacteria criteria based on a demonstration that "[h]uman caused conditions or sources
of pollution prevent the attainment of the use and ... would cause more environmental
damage to correct than to leave in place." This memo does not limit what factors a state
or authorized Tribe could pursue to demonstrate the need for a WQS variance in a CSO
impacted waterbody. Rather this memo describes how the EPA regions could advise
states wishing to use this aspect of Factor 3 for CSO impacted waters and how to evaluate
a related WQS submission. Specifically, the EPA's review would evaluate, among other
things, whether (1) clear and measurable data show implementing specified non CSO
control alternatives would have a greater environmental benefit to the recreation use
than only controlling CSOs, (2) such non-CSO control alternatives would not occur if the
community were required to implement additional CSO controls, and (3) the non-CSO
control alternatives will, in fact, be implemented if the EPA approves the WQS revision.
The EPA recommends that states and authorized Tribes coordinate with the relevant EPA
regional WQS contact if pursuing the "would cause more environmental damage" aspect
of Factor 3.
The state or authorized Tribe's Factor 3 "environmental damage" demonstration should
include, among other things, consideration and evaluation of the following types of
available information:43
Monitoring data to determine the current ambient water quality conditions,
>> Data or maps showing the geographical extent of the pollution within the same
waterbody,
41 Nagle, D.G. EPA. 2024. Memorandum: CSO Temporal Recreation Uses or WQS Variances based on 40 CFR 131.10(g)
(3). Office of Science and Technology, Washington DC., https://www.epa.gov/system/files/documents/2024-02/
cso-temp-recreational-memo-1-19-2024.pdf.
42 This memo is directed to states and territories only because there are no Tribes with responsibility for CSOs. For
simplicity, the term "states," as used in this memo, includes any territories with responsibility for CSOs.
43 Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54535 (September 4, 2013).
DRAFT CHAPTER: WQS Variances 22
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Engineering studies and literature of the relevant pollutant reduction options
and BMPs that could be implemented in the waterbody during the term of the
WQS variance,
Description, with supporting information from scientific literature, of the
environmental impacts to the waterbody associated with the pollutant reduction
options and BMPs, and
A comparison of the environmental impacts to the ecosystem and/or public
health to the benefits of attaining the designated use and associated criteria, in
the same geographic area of that waterbody.
"Factor 6 "
Factor 6 can be used to justify the need for a WQS variance when "[c]ontrols more
stringent than those required by Sections 301(b) and 306 of the Act would result in
substantial and widespread economic and social impact."44 This is a commonly used factor
to demonstrate the need for a discharger-specific WQS variance. In Upper Missouri
Waterkeeper v. EPA, the Ninth Circuit Court of Appeals held "that the EPA's regulations
reasonably interpret the Clean Water Act as allowing consideration of compliance costs
when the agency approves water quality standards45 and variance requests."46
The EPA's guidance on considering economics for WQS decisions is found in two
main documents: Interim Economic Guidance for Water Quality Standards: Workbook
(1995)47 (hereafter referred to as "1995 Interim Economic Guidance") and Clean Water
Act Financial Capability Assessment Guidance (2024)48 (hereafter referred to as "FCA
Guidance"). The 1995 Interim Economic Guidance provides guidance to the public and
private sectors on the types of information that a state or authorized Tribe should consider
when determining whether the cost of implementing pollutant reduction options to
meet permit requirements derived from the designated use and criterion "would cause
substantial and widespread economic and social impact" to the affected community and/or
discharger. The FCA Guidance supplements the public sector sections of the 1995 Interim
44 40 CFR 131.10(a)(6).
45 Upper Missouri Waterkeeper \/. EPA, 15 F.4th 966, 974 (9th Cir. 2021). The Ninth Circuit explained that under
EPA's regulation "compliance costs may be considered only when designating the uses to be protected by water
quality standards. Once those uses have been designated, States must adopt water quality criteria adequate to
protect those uses, 'based on sound scientific rationale.'" Id. at 972, n.1. See also Mississippi Comm'n on Nat. Res.
\/. Costle, 625 F.2d 1269,1277 (5th Cir. 1980) Upholding EPA's determination that "while economic factors are to
be considered in designating uses, those factors are irrelevant to the scientific and technical factors considered in
setting criteria to meet those uses."
46 Upper Missouri Waterkeeper at 974. The Court reasoned that while the agency "could perhaps have interpreted"
the CWA Section 101(a)(2) goal that water quality that provides for the protection of aquatic life and recreation be
achieved "wherever attainable" to refer only to technological feasibility, "it seems far more plausible that Congress
used the term in the sense reflected in the EPA's regulations—as including an assessment of whether achieving
the necessary water quality is economically feasible, given the costs that would be imposed on the affected
communities."
47 EPA. 1995. Interim Economic Guidance for Water Quality Standards: Workbook. EPA, Office of Water. Washington,
DC 20460. March 1995. EPA-823-95-002. https://www.epa.gov/system/files/documents/2024-01/interim-
economic-auidance-water-quality-standards-workbook-1995.pdf.
48 EPA. 2024. Clean Water Act Financial Capability Assessment Guidance. EPA-800-B-24-001. EPA, Office of Water,
Washington, DC 20460. March 2024. https://www.epa.gov/system/files/documents/2023-01/cwa-financial-
capability-assessment-guidance.pdf.
DRAFT CHAPTER: WQS Variances 23
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Economic Guidance with additional indicators and analyses for low-income residents,
an Expanded Economic Impact Matrix, and recommendations to consider when making
WQS decisions. The FCA Guidance does not revise the recommended methodology
in the private sector sections of the 1995 Interim Economic Guidance. The EPA's
Economic Guidance for Water Quality Standards webpaae also provides spreadsheet
tools for the public and private sector analyses to help guide the user through the steps
to successfully implement the FCA Guidance and 1995 Interim Economic Guidance.49
It is important to note that a Factor 6 evaluation is not a cost-benefit analysis. A Factor
6 evaluation only determines if the pollutant control technology needed to meet
WQS would cause substantial and widespread economic and social impact in a specific
circumstance. To meet the requirements of Factor 6, the cost of additional pollutant
controls must be both substantial and widespread. The EPA recommends first performing
an analysis to determine if the cost of additional pollutant controls would result in a
substantial impact. If the analysis suggests the cost would have a substantial impact,
then the state or authorized Tribe should perform a separate analysis to determine if the
substantia! impact would be widespread.
For public sector dischargers (e.g., POTWs), a "substantial impact" refers to the economic
impact on the community, taking into consideration socioeconomic conditions, if the
discharger is required to implement additional pollutant controls necessary to comply with
WQS. For private sector dischargers, a substantial impact refers to significant changes to
the discharger's business viability if required to implement additional pollutant controls
necessary to comply with WQS.50
49 Economic Guidance for Water Quality Standards webpage: https://www.epa.gov/wqs-tech/economic-auidance-
water-qualitv-standards.
50 EPA. 1995. Interim Economic Guidance for Water Quality Standards: Workbook. EPA, Office of Water. Washington,
DC 20460. March 1995. EPA-823-95-002. https://www.epa.gov/svstem/files/documents/2024-01/interiiTi-
economic-auidance-water-quality-standards-workbook-1995.pdf.
DRAFT CHAPTER: WQS Variances 24
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The 1995 Interim Economic Guidance suggests a series of financial tests to help determine
whether additional pollutant control costs could result in a substantial impact. For the
public sector, first calculate a municipal preliminary screener, which evaluates the impact
the cost of additional pollutant controls would have on a household and thus "screens"
for situations where additional analyses may not be warranted. A secondary test further
evaluates the potential for a substantial impact by examining indicators related to the
community's financial health.
For the private sector, the 1995 Interim Economic Guidance recommends evaluating
several indicators related to the potential impact of pollutant control measures on profit,
liquidity, solvency, and leverage. Profit is the income to the owner(s) of a company;
liquidity is a measure of how easily a company can pay its short-term bills; solvency is a
measure of a company's ability to meet its fixed and long-term obligations, and leverage is
a measure of how much money a company is capable of borrowing.
Section III of the FCA Guidance recommends an expanded multi-step approach for public
sector entities to determine if requiring additional pollutant controls could result in a
substantial impact. In addition to the Initial Economic Impact analyses recommended in the
1995 Interim Economic Guidance, the FCA Guidance recommends states and authorized
Tribes do the following:
~> Calculate a Lowest Quintile Poverty Indicator Score: The FCA Guidance
recommends evaluating a set of six socioeconomic statistics from the United
States Census Bureau to assess the severity and prevalence of poverty in a
community's service area and incorporate that information into the assessment of
economic impacts.
~> Perform a Financial Alternatives Analysis: The FCA Guidance recommends
investigating a variety of potential funding sources and alternative financial
mechanisms that could minimize financial impacts to residents living in
overburdened and/or low-income communities so that these residents also enjoy
the benefits of infrastructure investments and improved water quality.
~> Combine the analysis recommended in the 1995 Interim Economic Guidance with
the additional analyses recommended in the FCA Guidance: The FCA Guidance
recommends combining the analytical results from the 1995 Interim Economic
Guidance with the additional analytical results recommended in the FCA
Guidance using the expanded Economic Impact Matrix.
-------
Finally, the FCA Guidance provides recommendations on how to interpret the combined
analytical results to determine if additional pollution controls necessary to meet WQS
would result in a substantial economic impact to a public sector discharger.
"Widespread impacts" for both public and private dischargers refer to how a substantial
impact could affect the community or surrounding area. The 1995 Interim Economic
Guidance recommends evaluating potential changes to various socioeconomic indicators
of a community to determine if a substantial impact is likely to also be widespread. For
example, a decrease in household income, decrease in commercial development, lower
property values, or an increase in unemployment could negatively affect the ways in
which people in a community live, work, play, relate to one another, and organize their
activities. For many POTWs, the cost of additional pollutant controls is passed on directly
to households and businesses through increases in wastewater treatment rates. Although
low-income segments of a community would disproportionally experience substantial
adverse economic impact, a significant community-wide increase in wastewater treatment
rates would likely have broad adverse impacts on the economic wellbeing throughout the
community. Therefore, if a state or authorized Tribe can demonstrate that the additional
cost to a POTW would be funded by a large proportion of households and businesses in the
community, it is reasonable to conclude that such a substantial economic impact to the
community would also be widespread.
When evaluating widespread impacts for private entities, a state or authorized Tribe should
assess current economic conditions to determine how the substantial impact to the
business would impact the surrounding community. Widespread impacts include, but are
not limited to, a decrease in tax revenue due to reduced operation or closure of a facility,
increased unemployment, lower property values, lower economic activity due to worker
relocation, and the loss of future community economic development opportunities.
When determining whether the cost of additional pollutant controls necessary to meet
WQS would result in substantial and widespread economic and social impact, a state or
authorized Tribe should evaluate a variety of pollutant reduction options and their financial
impacts. Some pollutant reduction options may not result in attaining the designated use
but nonetheless have the potential to reduce the pollutant loadings to the waterbody.
Such an analysis can help the state or authorized Tribe determine the HAC when seeking a
WQS variance. See section 6.3.2 of this chapter for additional information on determining
the HAC when justifying a WQS variance based on Factor 6.
As described in the FCA Guidance, federal funding initiatives and programs, such as
the State Revolving Fund loans and Water Infrastructure Finance and Innovation Act
provide, in total, billions of dollars for state, local, territorial, and Tribal governments to
pursue infrastructure needs related to clean water. These resources present a historic
opportunity for communities to address long-standing clean water needs. The EPA is
working with communities to identify funding sources and financing strategies that
can be used to reduce costs to complete necessary projects. In addition, state, local,
and Tribal governments' equitable support of communities with limited resources can
DRAFT CHAPTER: WQS Variances 26
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help those communities meet the challenges of funding necessary water infrastructure
improvements, especially where there are disadvantaged and lower income communities
with environmental justice, compliance, enforcement, and other concerns.51
In addition to the six factors contained in 40 CFR 131.10(a). the EPA included a seventh
factor in 40 CFR 131.14(b)(2)(i)(A), referred to as "Factor 7," to accommodate situations
where a state or authorized Tribe expects a time-limited exceedance of a criterion when
implementing efforts to remove a dam or other significant activities associated with
wetland, lake, or stream reconfiguration or restoration in order to facilitate restoration of
the natural physical features of a waterbody.52 The EPA explained in the preamble to the
2015 WQS regulation that "States and authorized tribes may only use this factor to justify
the time necessary to remove the dam or the length of time in which wetland, lake, or
stream restoration activities are actively on-going."53 For example, a WQS variance based
on Factor 7 should only allow time for the temporary flush of sediments when a dam is
removed and should not include the time it takes for the waterbody to reach equilibrium
after the initial flush of sediment following dam removal. While NPDES permittees or
federal license or permit holders may not be directly impacted by a WQS variance based
on Factor 7, a state or authorized Tribe may rely on such a WQS variance when determining
whether to issue a CWA Section 401 certification related to an application for a federal
license or permit.54 Section 6.4.3 of this chapter discusses the relationship between WQS
variances and CWA 401 certification. It is important to note that Factor 7 is not included in
40 CFR 131.10(g) and thus may only be used to demonstrate the need for a WQS variance,
not a designated use change.
51 EPA. 2023. Clean Water Act Financial Capability Assessment Guidance, EPA-800-B-21-001. EPA, Office of Water,
Washington, DC 20460. February 2023. https://www.epa.gov/systerin/files/clocuiTients/2023-01/cwa-financial-
capability-assessment-guidance.pdf.
Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54535 (September 4, 2013). See also Water Quality
Standards Regulatory Revisions, 80 Fed. Reg. 51037 (August 21, 2015).
fia Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51037 (August 21, 2015).
54 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51037-38 (August 21, 2015). See also Water Quality
Standards Regulatory Clarifications, 78 Fed. Reg. 54535 (September 4, 2013).
DRAFT CHAPTER: WQS Variances 27
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6.3.1.2 WQS Variances to uNon-101(a)(2)" Uses
CWA Section 303(c)(2)(A) directs states and authorized Tribes to take into consideration
the use and value of waters for "...public water supplies, propagation of fish and wildlife,
recreational purposes, and agricultural, industrial, and other purposes, and...navigation."
CWA Section 101(a)(2) establishes an interim goal that, wherever attainable [emphasis
added], water quality provides for the protection and propagation of fish, shellfish and
wildlife, and recreation in and on the water. Those uses addressed in CWA 303(c)(2)(A)
but not CWA Section 101(a)(2), such as public water supplies, agricultural, industrial, and
navigation are considered to be "non-101(a)(2) uses" and are defined in the regulation
at 40 CFR 131.3(g). See Draft Chapter 2: Designated Uses, subsections 2.1.1 and 2.2.2 of
this Handbook for more discussion on CWA 101(a)(2) uses and non-101(a)(2) uses.
A state or authorized Tribe must submit documentation to the EPA for WQS variances
to non-101(a)(2) uses demonstrating how its consideration of the use and value of the
water for those designated uses listed in 40 CFR 131.10(a) supports the WQS variance
and its term.55 Alternatively, this requirement can also be satisfied by demonstrating that
attaining the designated use and associated criterion is not feasible during the term of
the WQS variance. When evaluating the attainability of non-101(a)(2) uses, states and
authorized Tribes may use one of the regulatory factors specified in 40 CFR 131.14(b)(2)
(i)(A), as described in section 6.3.1.1, but are not limited to these factors.56 In the context
of a WQS variance, the use and value demonstration would acknowledge that the
waterbody has use and value for the non-101(a)(2) use in the long term, and that while
that use is not attainable for a period of time, incremental progress can be made towards
attaining the designated non-101(a)(2) use.
The EPA encourages states and authorized Tribes to work closely with the EPA when
developing a WQS variance for a non-101(a)(2) use, and recommends they consider a
suite of information including, but not limited to:57
Relevant descriptive information (e.g., identification of the designated use
that is under consideration, location of the waterbody, overview of land use
patterns, available water quality data and/or stream surveys, physical information,
information from public comments and/or public meetings, anecdotal
information, and other relevant information),
Attainability information (e.g., factors described at 40 CFR 131.14(b)(2)(i)(A), as
applicable), and
Value and/or benefits (e.g., environmental, social, cultural, and/or economic)
associated with granting a WQS variance or not.
55 40 CFR 131.14(b)(2)(i)(B).
56 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51038 (August 21, 2015).
57 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51026-27 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 28
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6.3.1.3 Considerations When Demonstrating the Need for Multiple
Discharger WQS Variances
In developing the demonstration of need for an MDV,58 states and authorized Tribes
should consider the following four principles:59
1. The MDV must meet the same 40 CFR 131.14 regulatory requirements as a single
discharger WQS variance. A discharger that would not qualify for an individual
WQS variance would not qualify for an AADV.
2. When considering an MDV, the EPA expects states and authorized Tribes to
account for as much individual discharger-specific information related to the
WQS variance as possible. This would include determining whether dischargers
are experiencing the same attainability challenges for the same pollutant(s) to
meet the requirements at 40 CFR 131.14(bX1Xi).
3. The EPA recommends that the state or authorized Tribe only group dischargers
where the dischargers share specific characteristics or technical and economic
scenarios. This ensures that the EPA and the public can evaluate and provide
constructive input on each MDV based on the facts specific to each group.
The more homogeneous a group is in terms of the characteristics affecting
attainability of the designated use and criterion, the more credible the required
supporting documentation for the demonstration of need will be. For example, a
state or authorized Tribe could group permittees based on specific characteristics
that the dischargers share (e.g., type of discharger [public or private], industrial
classification, permittee size and/or effluent quality, treatment train [existing
or needed], pollutant treatability, community financial and socioeconomic
characteristics, whether or not the permittee can achieve a level of effluent
quality comparable to the other permittees in the group, and/or waterbody or
watershed characteristics) and conduct a separate analysis for each group.
4. States and authorized Tribes should consider a single discharger WQS variance if a
certain discharger does not fit with any of the group characteristics (e.g., private
versus public dischargers, large versus small permittee, advanced treatment
system versus basic treatment system, or permittees with a parent company
versus those without).
68 40 CFR 131.14fbX2XD.
® EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-290 to 3-291, https://www.reaulations.gov/document/EPA~
HO-QW-2010-0606-0344.
DRAFT CHAPTER: WQS Variances 29
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6.3.1.4 Considerations When Demonstrating the Need for
Waterbody WQS Variances
In demonstrating the need for a waterbody WQS variance, states and authorized Tribes
should understand that while a discharger-specific WQS variance applies only to the
permittee(s) identified in the WQS variance, a waterbody WQS variance applies to the
waterbody itself. Therefore, the demonstration of need for a waterbody WQS variance
does not focus on any specific source or sources but rather comprehensively evaluates
the sources of the pollutant to the waterbody and the extent to which the sources
can be controlled to a level to achieve the designated use.60 If the waterbody has an
applicable TMDL, the TMDL may provide useful information for the state or authorized
Tribe. See section 6.4.4 of this chapter for more information on waterbody assessment
and TMDLs.
6.3.2 Identifying the Highest Attainable Condition
(HAC) (40 CFR 131.14(b)(1)(ii))
The purpose of a WQS variance is to provide states and authorized Tribes with time
to make incremental water quality improvements, where the designated use and
criterion are unattainable for a period of time. Making incremental progress requires
an understanding of what is incrementally attainable. Incremental progress in the
context of WQS variances means implementing feasible pollutant reduction options61
to reduce pollutant loadings to the receiving water. The EPA's regulation requires states
and authorized Tribes to identify the HAC for the waterbody or waterbody segment
reflecting the greatest feasible incremental progress that can be made during the WQS
variance term.
"The requirements shall represent the highest attainable condition
of the applicable water body or waterbody segment applicable
throughout the term of the WQS variance..."62
The HAC is the condition of the waterbody or effluent that "...is both feasible to attain
and closest to the protection afforded by the designated use and criteria."63 This is a
critically important element of a WQS variance because it forms the basis of the WQS
variance interim requirements. This description of HAC is parallel to the definition of
the highest attainable use (HAU) 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,
60 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-318, https://www.reaulations.aov/document/EPA-HO-
QW-2010-0606-0344.
61 Pollutant reduction options could include both pollutant control technologies, and pollution prevention and source
reduction measures.
62 40 CFR 131.14(bX1Xii).
63 Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54534 (September 4, 2013) and EPA's Response to
Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances, Docket # EPA-HQ-
OW-2010-0606, August 2015, pg. 3-298, https://www.reaulations.aov/document/EPA-HO-OW-2010-0606-Q344.
DRAFT CHAPTER: WQS Variances 30
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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" (40
CFR 131.3(m)). Similarly, a state or authorized Tribe would consider the factor(s) that
preclude attainment of the designated use and criterion during the term of the WQS
variance, and/or any other information or analyses that were used to justify the WQS
variance, to determine the highest condition that could be attained during the term of
the WQS variance. For example, if a state or authorized Tribe justifies the WQS variance
by demonstrating that it would cause substantial and widespread economic and social
impact to implement a pollutant control technology to meet a WQBEL based on the
underlying designated use and criterion, then the HAC would be based on what can
be done to reduce the pollutant loadings in a manner that would not cause substantial
and widespread economic and social impact. While the documentation required to
demonstrate the need for a WQS variance depends upon whether the WQS variance is
to a 101(a)(2) or non-101(a)(2) use, the requirement to identify the HAC applies equally
to any WQS variance.
It is important to note that the HAC is the interim water quality (i.e., interim use and/
or interim criterion) or interim effluent condition that applies throughout the WQS
variance so that water quality requirements drive incremental progress.64 However, the
EPA's WQS variance regulation does not require the HAC to be achieved until the end
of the WQS variance term.65 The regulatory objective is to attain the highest quality of
the receiving water or discharger effluent feasible (i.e., the HAC) after any permittees
subject to the WQS variance implement all the WQS variance requirements during the
WQS variance term. In Upper Missouri Waterkeeper v. EPA, the Ninth Circuit Court
of Appeals held that the WQS variance regulation, particularly 40 CFR 131.14(b)(1)(iv).
"provide[s] that the highest attainable condition specified in the variance shall apply
throughout (or during) the variance's term, from the beginning of the term to the end.
But those provisions do not state that an individual discharger must be in compliance
with the highest attainable condition on day one. Instead, the EPA's variance regulation
unambiguously provides that compliance with the highest attainable condition is not
required at the onset."66 A permit compliance schedule could be the appropriate legal
mechanism to provide time for the permittee to meet the HAC by the end of the WQS
variance term. See section 6.4.2.2 of this chapter for a discussion of when and how a
permit compliance schedule may be used in conjunction with a WQS variance.
"must specify the highest attainable condition of the water body or
waterbody segment as a quantifiable expression..."67
The WQS regulation requires the state or authorized Tribe to identify the HAC as a
"quantifiable expression."68 Requiring a quantifiable expression of the HAC facilitates
64 See 40 CFR 131.14(b)(1)(ii).
65 See 40 CFR 131.14 (b)(1)(iv): "The term of the WQS variance must only be as long as necessary to achieve the highest
attainable condition..."
66 Upper Missouri Waterkeeper \/. EPA, 15 F.4th 966, 975 (9th Cir. 2021) (emphasis in original) (Noting that 40 CFR
131.14(b)(1)(iv) "makes clear that the purpose of a variance is to provide the time needed to achieve this attainable
interim standard, which means, of course, that compliance with the highest attainable condition is required by the
end of the variance's term, not at the beginning").
67 40 CFR 131.14(b)(1)(ii).
Ibid.
DRAFT CHAPTER: WQS Variances 31
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development of NPDES permit limits and requirements, provides clear expectations of
water quality progress, and ensures that a WQS variance results in measurable water
quality progress.
In most cases, the EPA expects that states and authorized Tribes will specify the HAC
as a concentration of a pollutant or pollutant parameter at issue. Concentration is
often a relatively stable measure of the pollutant or pollutant parameter in an NPDES
permittee's discharge, and thus the EPA expects concentration will likely be the method
the permitting authority would use to specify the WQBEL in an NPDES permit.69 To
address situations where a concentration- based HAC may not adequately characterize
the attainment issue, the regulation "...provides states and authorized tribes with the
flexibility to express the HAC as numeric pollutant concentrations in ambient water,
numeric effluent conditions, or other quantifiable expressions of pollutant reduction."70
For example, expressing the HAC with regard to CSOs could include a maximum number
of overflows, a percentage of time attaining the underlying designated use, or high
flow/velocity cutoffs suspending a WQS.71 See section 6.4.2 of this chapter for further-
information on implementing WQS variances in NPDES permits.
Considerations for WQS Variances to Narrative Criteria
The EPA recognizes that states and authorized Tribes also rely on narrative criteria
to protect certain designated uses. A permitting authority may translate a narrative
criterion into protective numeric WQBELs in a wide variety of situations (e.g., POTWs,
industrial discharges, storrnwater discharges, etc.). Where the discharger is experiencing
challenges complying with this WQBEL, it is important to determine the cause of
the excursion to determine the appropriate path forward. As discussed earlier in this
chapter, there may be several technical and financial assistance options available to
address the compliance challenges. Where technical and financial assistance are not
sufficient to remedy the compliance challenges, then the state or authorized Tribe may
choose to consider whether a WQS variance to the narrative criterion can be justified
consistent with 40 CFR 131.14.
The EPAs regulation does not preclude WQS variances for designated uses with
narrative criteria. However, a WQS variance to narrative criteria must still meet the
requirements at 40 CFR 131.14. The EPA's regulation requires the "[identification of the
69 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pq. 3-337, https://www.requlations.gov/docuinent/EPA-HQ-
QW-2010-0606-0344.
70 Ibid.
71 Ibid.
DRAFT CHAPTER: WQS Variances 32
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pollutant(s) or water quality parameter(s)...to which the WQS variance applies."72 It is also
essential to identify the specific pollutants or parameters to which the WQS variance will
apply in order to conduct an analysis of pollutant reduction options when demonstrating
the need for the WQS variance.73
A state or authorized Tribe is also required to identify the HAC as a quantifiable expression
that applies throughout the term of the WQS variance C40 CFR 131.14CbX1Xiiy). Thus,
even where the WQS variance is to a designated use protected by a narrative criterion,
the HAC must still be quantifiable. The EPA has stated that "[A] quantifiable expression
of the HAC is necessary and important even for narrative criteria because such an
expression helps ensure that there will be water quality improvements (a key purpose
of a variance) during the term of the variance. For pollutants with narrative criteria,
the state or authorized tribe can perform studies during the analysis to support the
justification of the WQS variance to identify, for example, the current level of water
quality and a percent reduction that is achievable during the term of the WQS variance
and use that information to articulate a 'quantifiable expression' in the WQS variance."74
To determine the quantifiable HAC, states and authorized Tribes should conduct an
analysis of the pollutant reduction options to determine the ambient water quality or
effluent quality that is feasible to achieve by the end of the WQS variance term.
6.3.2.1 Identifying the HAC for Discharger-Specific WQS Variances
For a discharger-specific WQS variance, the state or authorized Tribe must specify
the HAC in the WQS variance as a quantifiable expression that is one of the following
options (40 CFR131.14fbX1XiiXA»:
Option 1 - The highest attainable interim criterion,
Option 2 - The interim effluent condition that reflects the greatest pollutant
reduction achievable, or
Option 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 [or authorized Tribe] adopts
the WQS variance, and the adoption and implementation of a Pollutant
Minimization Program.
The HAC reflects the condition that results from implementing feasible pollutant
reduction options, considering those options identified to reduce pollutant loadings but
not enough to attain the designated use, per 40 CFR 131.14CbX2I
Regardless of the HAC adopted, once the WQS variance is approved by the EPA,
the HAC becomes the applicable WQS during the term of the WQS variance that
72 40 CFR 131.14(b)(1)(i).
73 40 CFR 131.14(bX2Xi).
74 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-342, https://www.reaulations.aov/document/EPA-HO-
QW-2010-0606-0344.
DRAFT CHAPTER: WQS Variances 33
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the permitting authority must use when implementing the WQS variance for the
discharger(s) subject to the WQS variance C40 CFR 131.14(c)!
HAC Expressed as Option 1 ("HAC1")
For a discharger-specific WQS variance, states and authorized Tribes may express the
HAC as an interim criterion without specifying the modified designated use it supports.
This is because "...the level of [designated use] protection afforded by meeting the
highest attainable interim criterion in the immediate area of the discharge(s) results
in the highest attainable interim use at that location. Therefore, the highest attainable
interim criterion is a reasonable surrogate for both the highest attainable interim use
and interim criterion when the WQS variance applies to a specific discharger(s)."75
To determine the highest attainable interim criterion, states and authorized Tribes should
conduct an analysis of pollutant reduction options to calculate/model what instream
ambient water quality condition is feasible to achieve after implementing such options. It is
important to account for seasonal fluctuations in pollutant concentration and the impacts
of other sources on the instream ambient water quality when determining the HAC.
Where there is more than one pollutant source on the waterbody, the determination of
HAG can be more complicated than the calculations/modeling needed for determining
HAC2 due to the various pollutant sources affecting the ambient water quality. The
EPA has found that using HAC2 allows states and authorized Tribes to more easily and
accurately reflect what is feasible for a specific facility to implement for the greatest
pollution reduction.
Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51037 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 34
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HAC Expressed as Option 2 ("HAC2")
A state or authorized Tribe may choose to specify the HAC as "...a numeric effluent
condition that reflects the highest attainable condition for a specific permittee(s) during
the term of the variance. Adopting a numeric effluent condition that reflects the highest
attainable condition is reasonable because the resulting instream concentration reflects
the highest attainable interim use and interim criterion and, therefore, the interim numeric
effluent condition is acting as a surrogate for the interim use and interim criterion."76
To determine the highest attainable interim effluent condition, states and authorized
Tribes should determine which pollutant reduction options are feasible to implement,
and of those feasible options, which would reduce pollutant loadings to the greatest
extent. The "interim effluent condition representing the greatest pollutant reduction
achievable" is the interim effluent condition that the state or authorized Tribe expects
the permittee to achieve once the feasible pollutant control measures (including
technology) are installed and operational. If a permittee cannot immediately meet the
WQBEL based on HAC2, the permitting authority may include a compliance schedule77
in the permit, consistent with 40 CFR 122.47. to provide time to achieve the revised
WQBEL. Generally, a compliance schedule must "require compliance as soon as
possible."78 Where a permit compliance schedule is longer than one year, the NPDES
permit must include interim requirements and dates for their achievement.79 See section
6.4.2.2 of this chapter for more information on WQS variances and NPDES permit
compliance schedules.
HAC Expressed as Option 3 ("HAC3")
Where "no additional feasible pollutant control technology can be identified," the
HAC may be expressed as HAC3: "...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."80 A WQS variance using
HAC3 can provide a mechanism for states and authorized Tribes to continue making
water quality improvements when the designated use and criterion is unattainable for a
period of time, even when the discharger has implemented all feasible pollutant control
technologies. HAC3 is comprised of two parts:
1. A quantifiable expression of either the interim criterion or interim effluent
condition reflecting the greatest pollutant reduction achievable with optimization
of the currently installed technology, and
2. Adoption and implementation of a Pollutant Minimization Program.
76 Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54534 (September 4, 2013).
77 See definition of "schedule of compliance" at 40 CFR 122.2.
78 40 CFR 122.47(a)(1).
79 40 CFR 122.47(a)(3).
80 40 CFR 131.14(b)(1)(ii)(A)(3).
DRAFT CHAPTER: WQS Variances 35
-------
The PMP must reflect "...a structured set of activities to improve processes and pollutant
controls that will prevent and reduce pollutant loadings,"81 thus driving pollutant
reductions to achieve the HAC. As explained in the EPAs 2015 Response to Comments,
"Characterizing the HAC as both the interim effluent condition (or interim criterion)
that reflects the greatest pollutant reduction achievable with the pollutant control
technologies installed at the time the state or authorized tribe adopts the WQS variance,
and the adoption and implementation of a PMP meets EPAs goal for the HAC to be both
quantifiable and future reaching to drive progress towards the underlying WQS."82
The following paragraphs describe the two portions of HAC3 in greater detail.
A Quantifiable Expression Where "No Additional Feasible Pollutant
Control Technology Can Be Identified"
HAC3 can be used where the state or authorized Tribe cannot identify a feasible
pollutant control technology option for the facility to install that would reduce the
discharge of the pollutant in question. Two reasons why no additional feasible pollutant
control technology can be identified include:
1, There is no additional pollutant control technology available to treat the effluent
to reduce the pollutant loads any further (e.g., the discharger has already installed
the available pollutant control technologies), or
2. While an additional pollutant control technology may exist, it is not feasible for
the facility to install (e.g., it cannot be added to the existing treatment works, or
would cause substantial and widespread economic and social impact).
® 40 CFR 131.3(p).
® EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-QW-2010-0606, August 2015, pq.3-340, https://www.reaulations.gov/document/EPA-HQ-
QW-2010-0606-0344.
DRAFT CHAPTER: WQS Variances 36
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In further elaborating on 40 CFR 131.14(bX1XiiXAX3I "...this rule provides options for
articulating the highest attainable condition using the greatest pollutant reduction
achievable with optimization of currently installed pollutant control technologies
[emphasis added] and adoption and implementation of a Pollutant Minimization Program
(PMP)."83 Since finalizing 40 CFR 131.14, the EPA has received questions about the
term "optimization." Stakeholders have asked whether "optimization" means that the
pollutant control technology—specifically, a wastewater treatment system—is properly
operated and maintained or whether it means the discharger has invested in improving
the performance of currently installed technology to gain additional improvements
in effluent quality. In the context of 40 CFR 131.14, "optimization" means that the
quantifiable portion of HAC3 represents the effluent quality the currently installed
wastewater treatment system will achieve if properly operated and maintained. This
is parallel to the NPDES permitting regulation, which requires that "The permittee
shall at all times properly operate and maintain all facilities and systems of treatment
and control (and related appurtenances) which are installed or used by the permittee
to achieve compliance with the conditions of this permit. Proper operation and
maintenance also includes adequate laboratory controls and appropriate quality
assurance procedures."84
Thus, the EPA expects the quantifiable portion under HAC3 to reflect the properly
operated and maintained condition of the pollutant control technology, such as
the wastewater treatment system(s), and not be based, for example, on inadequate
wastewater treatment system performance due to poor operation or inadequate
maintenance. A state or authorized Tribe could quantifiably characterize the discharger's
current effluent condition "at the time the State adopts the WQS variance" based on the
monitoring data associated with past NPDES permit compliance to accurately determine
the interim criterion or interim effluent condition under HAC3.85
In contrast, where the state or authorized Tribe and discharger can identify additional
ways to improve the performance of the currently installed pollutant control technology
beyond activities needed for the proper operation and maintenance of the facility, and
thus improve effluent quality, the state or authorized Tribe may include those activities
as part of the PMP.
"Adoption and Implementation of a Pollutant Minimization Program"
In the context of 40 CFR 131.14, a PMP is broadly defined as "a structured set of
activities to improve processes and pollutant controls that will prevent and reduce
pollutant loadings" (40 CFR 131.3(p)I Pollutant control activities86 "...represent a
83 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51037 (August 21, 2015).
84 40 CFR 122.41(e).
85 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, Pg.3-340, https://www.reaulations.aov/document/EPA-HO-
QW-2010-0606-0344.
86 EPA recognizes a typo in its preamble at Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51037 (August
21, 2015) where it referred to "pollutant control technologies." EPA intended to say, "pollutant control activities."
It would be circular to say that where there is "no additional feasible pollutant control technology," the state must
adopt a PMP with activities that are pollutant control technologies.
DRAFT CHAPTER: WQS Variances 37
-------
broad set of pollutant reduction options, such as process or raw materials changes and
pollution prevention technologies, practices that reduce pollutants prior to entering
the wastewater treatment system, or best management practices for restoration and
mitigation of the water body."87 In the context of HAC3, while the interim criterion or
interim effluent condition that reflects the greatest pollutant reduction achievable with
the currently installed technology provides a benchmark for dischargers to maintain,
the PMP drives incremental improvements in water quality. As such, where a state or
authorized Tribe wishes to express the HAC as HAC 3, the WQS variance it adopts must
include the PMP and the set of PMP activities that dischargers must implement.88 As an
adopted component of the WQS variance, a PMP is a requirement that is "...necessary
to implement the WQS variance [and] shall be included as enforceable conditions of the
NPDES permit for the permittee(s) subject to the WQS variance."89
Therefore, a WQS variance would not simply include language stating that a PMP or PMP
activities will be identified and/or developed after adoption of the WQS variance. To be
consistent with 40 CFR 131.3(p) and 131.14, the state or authorized Tribe would need enough
information to identify the source(s) of pollutant loading and activities that would result in
reducing or minimizing those pollutant loadings before the WQS variance is adopted.
In addition, the PMP must include the activities that will be implemented to "prevent and
reduce pollutant loadings," not just activities to study pollutant loadings or sources (40
CFR 131.3(p)). However, the state or authorized Tribe may choose to include the latter
activities in the PMP in addition to those that prevent and reduce pollutant loadings. For
example, it may be particularly useful to include activities that study pollutant loadings
or sources to support climate resiliency strategies, including the study of anticipated
changes to climate-sensitive indicators such as temperature, water level and flow, and
water chemistry. Such studies or investigations may be a critical component of achieving
effective reductions under a PMP. Therefore, where such studies or investigations could
result in additional information about pollutant sources or reduction options, the EPA
recommends including them in the PMP along with follow up actions to utilize the
results as a part of implementing the PMP.
8? Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51037 (August 21, 2015).
88 40 CFR 131.14(b)(1)(iiXA)(3) and 40 CFR 131.14(b)(2)(ii).
89 40 CFR 131.14(c).
DRAFT CHAPTER: WQS Variances 38
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Section 6.3.2.3 of this chapter discusses additional considerations when developing a PMP.
States and authorized Tribes must also reevaluate the PMP activities when reevaluating
the WQS variance, consistent with 40 CFR 131.14CbX1XvI to determine if conditions
have changed and/or additional pollutant control activities are feasible to implement. See
section 6.3.4 of this chapter for additional discussion on WQS variance reevaluations.
6.3.2.2 Identifying the HAC for Waterbody and Waterbody Segment
WQS Variances
As discussed in section 6.3.1.4, while a discharger-specific WQS variance applies only
to those permittees identified in the WQS variance, a waterbody WQS variance applies
to the waterbody itself. Therefore, a state or authorized Tribe's assessment of the HAC
for this type of WQS variance should involve a comprehensive evaluation of the sources
of the pollutant to the waterbody including the extent to which the sources can be
controlled to reflect the greatest pollutant reduction achievable.
For a WQS variance applicable to a waterbody or waterbody segment, the HAC must be
specified in the WQS variance as a quantifiable expression that is one of the following
(40 CFR 131.14fbX1XiiXB»:
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 reflect the greatest pollutant reduction achievable
with the pollutant control technologies installed at the time the State [or authorized
Tribe] adopts the WQS variance, and the adoption and implementation of a PMP.
As discussed in Section 6.2.3, "[n]onpoint sources can have a significant bearing on
whether the designated use and associated criteria for the water body are attainable.
It is essential for states and authorized tribes to consider how controlling these
sources through application of cost-effective and reasonable BMPs could impact water
quality before adopting such a WQS variance. Doing so informs the highest attainable
condition..."90 Thus, the EPA expects a waterbody WQS variance to consider pollutant
loadings from a wide variety of sources that may exist on the waterbody, including NPS
discharges. It is more accurate to reflect the HAC for a waterbody WQS variance as an
interim designated use and interim criterion because a waterbody WQS variance reflects
a time-limited change applicable to the entire waterbody while actions are taken to make
incremental improvements.
As noted in section 6.2.3 of this chapter, the regulation at 40 CFR 131.14 does not
compel states and authorized Tribes to implement specific NPS controls or otherwise
regulate NPS of pollutants to attain WQS.91 However, where a state or authorized
Tribe wishes to work with its NPS on controls they could and would implement to make
90 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51038 (August 21, 2015).
91 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg.3-367 to 368, https://www.reaulations.gov/document/EPA-
HO-QW-2010-0606-0344.
DRAFT CHAPTER: WQS Variances 39
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incremental waterbody improvements, a waterbody WQS variance could be a useful
tool. When adopting a WQS variance, states and authorized Tribes must also 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 water 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" (40 CFR 131.14(b)(2)(iii)(A)). This documentation can facilitate identification
of the PMP activities included in the waterbody WQS variance.
—_ _ —' - *= — - —-
¦_ - ' •—• "
HAC Expressed as Option 1 ("Waterbody HAC1")
For a waterbody WQS variance with the HAC expressed as option 1 (hereafter referred
to as "waterbody HAC1"), the HAC would be the highest attainable instream condition
(i.e., designated use and criterion) considering both point and nonpoint sources of the
pollutant. A state or authorized Tribe might calculate/model the highest attainable
instream condition in a manner similar to a reverse TMDL calculation. That is, instead of
starting with the applicable water quality criteria and then allocating loadings to point
and nonpoint sources, the state or authorized Tribe would identify the greatest pollutant
reductions achievable in the loadings of each of the pollutant sources and calculate
or model what water quality criterion and designated use would result from those
combined reductions.
HAC Expressed as Option 2 ("Waterbody HAC2")
For a waterbody WQS variance with the HAC expressed as option 2 (hereafter referred
to as "waterbody HAC2"), the EPA expects the quantifiable portion of the HAC to
reflect the instream condition (i.e., designated use and criterion) at the time of adoption
that accounts for both "the greatest pollutant reduction achievable with the pollutant
control technologies installed at the time the State adopts the WQS variance"92 and
the impact of NPS discharges at the time the WQS variance is adopted. This can be
determined based on waterbody monitoring data. In addition to this quantifiable portion
of the HAC, the regulation requires that a PMP must be adopted as a component of
the WQS variance HAC and specify the activities that will be implemented to prevent
W 40 CFR 131.14(b)(1XiiKB)(2).
DRAFT CHAPTER: WQS Variances 40
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and/or reduce pollutant loadings to achieve the HAC.93 The state or authorized Tribe
should describe in the supporting documentation how implementing the combination
of pollutant reduction options will result in the HAC for that waterbody. A waterbody
HAC2 could provide an opportunity for the state or authorized Tribe to work closely
with point and nonpoint sources to specify in the WQS variance the actions that will be
implemented to prevent or reduce pollutant loadings as part of a holistic and transparent
strategy to achieve incremental water quality improvements in the waterbody.
Just as with a discharger-specific HAC3, discussed in Section 6.3.2.1 of this chapter, the
permitting authority must use both the quantifiable expression of the "greatest pollutant
reduction achievable" and the PMP included in the WQS variance to derive NPDES
permit limits and requirements per 40 CFR 131.14(c) because both components make up
the entirety of the HAC, which is part of the applicable WQS.94 Section 6.3.2.3 of this
chapter discusses additional considerations when developing PMPs.
6.3.2.3 Identifying PMP Activities for Either Discharger-Specific or
Waterbody WQS Variances
The state or authorized Tribe has discretion to determine the pollutant minimization
activities, including the flexibility to include PMP activities that go beyond what the
permittee can implement at the facility site. Pollutant control activities95 "...represent a
broad set of pollutant reduction options such as process or raw materials changes and
pollution prevention technologies, practices that reduce pollutants prior to entering
the wastewater treatment system, or best management practices for restoration and
mitigation of the water body."96 This means that the state or authorized Tribe can identify
PMP activities that would reduce pollutant loadings to a waterbody itself and not only the
permittee's effluent. Therefore, the PMP can consist of a mix of feasible activities that will
prevent or reduce pollutant loadings, whether it is at the permitted facility or offsite.
When developing a PMP, the state or authorized Tribe and permittee should first
consider pollutant control activities that will reduce the loading of the pollutant from the
permittee's effluent into the receiving water and quantify those reductions. Then, the
state or authorized Tribe and permittee may consider whether PMP activities implemented
offsite might reduce the pollutant load into the receiving water. An example could
include construction of buffers along the banks of the receiving water to control runoff
of the relevant pollutant. The permittee subject to the WQS variance will still ultimately
be responsible for the implementation of the PMP activities through its NPDES permit,
but the state or authorized Tribe could commit to implement certain activities, or the
93 40 CFR 131.14(b)(1)(ii)(B)(2).
94 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg.3-312, https://www.reaulations.aov/document/EPA-HO-
QW-2010-0606-0344.
95 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51037 (August 21, 2015) used the term "technologies"
rather than "activities." This was a typographical error we are correcting here and in EPA's Response to Comments,
Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances, Docket # EPA-HQ-
OW-2010-0606, August 2015, https://www.reaulations.aov/document/EPA-HO-OW-2010-0606-Q344.
96 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51037 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 41
-------
permittee could enter into binding agreements with a third party to implement the
activities on behalf of the permittee, such as a nonpoint source trading agreement.
A state or authorized Tribe may find an adaptive management approach useful when
identifying and implementing PMP activities. "[AJdaptive management can be useful in
the context of a WQS variance because it involves continuous feedback between the
interpretation of new information and management actions that can be key to targeting
actions where they will actually be effective."97 Additionally, where there are several
facilities implementing similar PMP activities (whether for single or multiple discharger
WQS variances), the state or authorized Tribe should conduct cross-facility comparisons
to determine if there are permittees that are seeing greater progress and whether there
are insights from those facilities that could be applied to other facilities.
To ensure that all activities in the PMP continue to facilitate water quality improvements
in the receiving water, the state or authorized Tribe should include monitoring and
evaluation requirements in the PMP. For example, a state or authorized Tribe could include
a requirement to collect monitoring data (under a quality assurance project plan (QAPP))
to evaluate water quality improvements implemented as a part of the PMP. Once part of
the WQS variance, such monitoring and evaluation requirements would be included in
the applicable NPDES permit. Such requirements provide a means to verify and quantify
pollutant reductions and inform adjustments or improvements to PMP activities as part
of an adaptive management approach and would allow the state or authorized Tribe to
communicate to the public the effectiveness of its WQS variance approach.
In summary, the EPA recommends states and authorized Tribes use the following process
when determining appropriate PMP activities that prevent or reduce pollutant loadings
to the receiving water:
1. Identify any PMP activities, including those at the facility site and those offsite,
that will prevent or reduce pollutant loadings to the receiving water.
2. Refine the list of potential PMP activities based on the impact to pollutant
loadings and time the PMP activities will take to implement. This evaluation may
also inform the sequence by which the state or authorized Tribe requires the
discharger to implement such activities.
3. Determine and specify who will be implementing each activity, including
any binding agreements the discharger has or will have with a third party to
implement any of the PMP activities.
4. Describe and document how and to what extent the selected PMP activities will
prevent or reduce the pollutant.
5. Identify appropriate monitoring, evaluation, and reporting requirements to
include in the PMP.
97 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg.3-300, https://www.reaulations.aov/document/EPA-HO-
QW-2010-0606-0344.
DRAFT CHAPTER: WQS Variances 42
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6.3.2.4 Analyses for Identifying the HAC for a CWA Section 101(a)(2)
Use or Subcategory of Such Use
Similar to the determination of the HAU98 for a designated use revision, the HAC for a
WQS variance to a CWA Section 101(a)(2) use is based on the evaluation of the factor
precluding attainment of the designated use and criterion during the term of the WQS
variance and any other information or analyses that were used to evaluate attainability.
For example, where the state or authorized Tribe demonstrates that a use cannot be
attained due to substantial and widespread economic and social impacts consistent
with 40 CFR 131.10(g)(6). the state or authorized Tribe then determines the HAC by
considering the condition that is attainable without incurring costs that would cause
a substantial and widespread economic and social impact. As such, performing an
analysis of what is not feasible to attain (e.g., the level of pollutant control that would
cause substantial and widespread economic and social impacts) informs the state's or
authorized Tribe's determination of the HAC (e.g., the level of pollutant control would
not cause substantial and widespread economic and social impacts).99
Some states have found it easiest to evaluate attainability and determine the HAC in one
analysis. This analysis looks at the range of available pollutant control technologies and
pollution prevention and source reduction measures to reduce the pollutant loadings.
While some of the pollutant reduction options may enable a discharger to meet its
WQBEL based on the designated use and associated criterion, the analysis would also
evaluate the options that may reduce pollutant loads to a lesser extent for the purpose
of determining the HAC. The analysis evaluates considerations such as economic
feasibility, technological feasibility, and/or environmental impacts to determine the
overall feasibility of implementing the pollutant reduction option and the expected
effluent quality. The state or authorized Tribe then uses the results of the analysis to
determine which factor precludes implementation of the pollutant control option
needed to meet the WQBEL, as well as to determine the HAC based on the pollutant
reduction option(s) that are both feasible to implement and provide water quality
protection closest to the CWA Section 101(a)(2) uses.
Regardless of the factor used to demonstrate the need for the WQS variance, in cases
where the analysis determines that there is no feasible pollutant control technology
that can be identified, the state or authorized Tribe could express the HAC as HAC3 or
waterbody HAC2.
The following subsections describe additional considerations for identifying the HAC
expressed as HAC1, HAC2, or waterbody HAC1 for a WQS variance based on Factors 2,
3, 6, and 7.
98 EPA's regulation at 40 CFR 131.3(m) defines the HAU 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." [emphasis added].
99 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg.3-345, https://www.reaulations.qov/document/EPA-HO-
QW-2010-0606-0344.
DRAFT CHAPTER: WQS Variances 43
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Consideration for Identifying the HAC: Factor 2
As discussed in section 6.3.1.1 of this chapter, Factor 2 applies only to situations where
the absence of sufficient flow makes a use unattainable during the term of the WQS
variance. Thus, to determine the HAC that is closest to the protection afforded by the
designated use and criteria in this scenario, the state or authorized Tribe should evaluate
the pollutant reduction options that the state or authorized Tribe and dischargers could
implement during the WQS variance term despite the natural, ephemeral, intermittent
or low flow condition, or water level that was shown to preclude attainment of the use,
provided that insufficient flow could not be compensated for by the discharge.
Considerations for Identifying the HAC: Factor 3
As discussed in section 6.3.1.1 of this chapter, there are two ways for a state or
authorized Tribe to demonstrate a WQS variance based on Factor 3: either the human
caused conditions or sources of pollution (1) "cannot be remedied," or (2) "would cause
more environmental damage to correct than to leave in place." In either scenario, the
HAC is based on using the same rationale that was used to demonstrate the need for the
WQS variance. Thus, to determine the HAC that is closest to the protection afforded
by the designated use and criteria where the state or authorized Tribe can demonstrate
that the human caused conditions or sources of pollution cannot be remedied, it should
evaluate the actions that the state or authorized Tribe and dischargers could implement
to remedy as much of the human caused conditions or sources of pollution as possible
during the term of the WQS variance.
DRAFT CHAPTER: WQS Variances 44
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Where the state or authorized Tribe can demonstrate that the human caused conditions
or sources of pollution "would cause more environmental damage to correct than to
leave in place," to determine the HAC that is closest to the protection afforded by the
designated use and criteria, the state or authorized Tribe and dischargers should evaluate
the pollutant reduction options that the state or authorized Tribe and dischargers could
implement during the WQS variance term that would cause less environmental damage
than the environmental damage that would have been caused by implementing actions
to meet the designated use. The EPA anticipates providing additional information on how
to determine and identify the HAC when using this aspect of Factor 3. Please coordinate
with the appropriate EPA regional WQS contact.
Considerations for Identifying the HAC: Factor 6
As discussed in section 6.3.1.1 of this chapter, a state or authorized Tribe might adopt
a WQS variance because requiring the discharger to meet the WQBEL of an NPDES
permit based on the designated use and criterion would result in substantial and
widespread economic and social impact to the affected community.100 To determine the
HAC that is closest to the protection afforded by the designated use and criteria for a
discharger-specific WQS variance based on Factor 6, the state or authorized Tribe and
discharger should conduct an analysis of pollutant reduction options that the discharger
could install and/or implement during the term of the WQS variance without resulting
in substantial and widespread economic and social impacts. Table 6-2 represents an
example of the results from a hypothetical analysis of pollutant control technologies,
based on a framework developed by a state. In this example, the framework looks at
whether pollutant control technology options are technologically feasible (e.g., viable
to install at the facility), and economically feasible (i.e., would not cause substantial and
widespread economic and social impact to the discharger/community).
TABLE 6-2: EXAMPLE OF RESULTS FROM A HYPOTHETICAL
ANALYSIS OF POLLUTANT CONTROL TECHNOLOGIES
Ranked Pollutant
Control Technology
Options
Expected
Effluent
Quality
Meets
WQBEL?
Technologically
Feasible?
Economically
Feasible?
Option 1
<1 mg/L
Yes
No
No
Option 2
1.5 mg/L
Yes
Yes
No
Option 3*
3 mg/L
No
Yes*
Yes*
Option 4
5 to 7
mg/L
No
Yes
Yes
higher water
quality
1
lower water
quality
In this example, the state or authorized Tribe has chosen to express the HAC as the
interim effluent condition that reflects the greatest pollution reduction achievable (i.e.,
HAC2). Based on the hypothetical analysis shown in Table 6-2, both pollutant control
100 40 CFR 131.10(a)(6).
DRAFT CHAPTER: WQS Variances 45
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technology Option 3 and Option 4 are economically feasible to install (i.e., the cost
will not cause substantial and widespread economic and social impact). The state or
authorized Tribe selected Option 3 as the HAC because that option provides the best
resulting effluent quality (i.e., highest water quality) while being technologically and
economically feasible. While both Options 1 and 2 could allow the discharger to meet
the WQBEL, they are economically infeasible for the discharger to install. Therefore, the
"interim effluent condition representing the greatest pollutant reduction achievable"
would be 3 mg/L in this example.
Considerations for Identifying the HAC: Factor 7
Factor 7 (40 CFR 131.14(b)(2)(i)(A)(2)) is specific to WQS variances. As described in
section 6.3.1.1 of this chapter, this factor may only be used to demonstrate the need
for a WQS variance during the time needed to remove a dam or when restoration/
reconfiguration activities are taking place.101 Under this factor, the HAC that is closest to
the protection afforded by the designated use and criteria is the quantifiable expression
of the condition achievable while the restoration efforts are underway.
6.3.2.5 Analyses for Identifying the HAC for Non-101(a)(2) Uses
One note of difference between an HAU and an HAC is that while 40 CFR 131.10(g)
only requires states and authorized Tribes to identify the HAU when removing or
revising a use specified in CWA Section 101(a)(2) or a subcategory of such a use, 40 CFR
131.14(b)(1)(ii) requires states and authorized Tribes to adopt an HAC regardless of the
designated use in question in order to ensure feasible water quality progress during the
term of the WQS variance. As discussed in section 6.3.1.2, requesting a WQS variance
for a non-101(a)(2) use acknowledges that while there is a use and value for the non-
101(a)(2) use in the waterbody in the long term, it is not attainable for a period of time;
however, incremental progress could be made towards attaining the designated use.
Therefore, where a state or authorized Tribe chooses to use one of the seven factors at
40 CFR 131.14(b)(2)(i)(A) to demonstrate why a non-101(a)(2) use is not attainable for
the WQS variance term, please refer to section 6.3.2.4 of this chapter for a discussion
on determining the corresponding HAC. However, states and authorized Tribes are not
limited to the factors listed at 40 CFR 131.14(b)(2)(i)(A) when justifying the need for
a WQS variance to a non-101(a)(2) use. Therefore, where a state or authorized Tribe
determines that another condition is limiting attainability of the non-101(a)(2) use, the
state or authorized Tribe should still ensure that the HAC "...is both feasible to attain and
closest to the protection afforded by the designated use and criteria,"102 based on the
condition limiting attainability.
101 40 CFR 131.14(bX2XiXAX2).
102 Water Quality Standards Regulatory Clarifications, 78 Fed. Reg. 54534 (September 4, 2013).
DRAFT CHAPTER: WQS Variances 46
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6.3.3 Determining the Term of the WQS Variance
Requirements for determining the term for all WQS variances are set forth in regulation
and described in this section. Additional requirements apply for WQS variances with a
term of greater than five years, as discussed in section 6.3.4 of this chapter.
A state or authorized Tribe must specify the term of a WQS variance C40 CFR 131.14CbX1Xivy).
States and authorized Tribes have the option to specify the term of the WQS variance
as "an interval of time from the date of EPA approval or a specific date." In either case,
the federal regulation requires the term of the WQS to "only be as long as necessary to
achieve the highest attainable condition."103
The justification for the
term of the WQS variance
must reflect only the time
necessary to plan, implement,
and evaluate the activities
necessary to achieve the
HAC.104 "Explicitly requiring
the state or authorized
Tribe to document the
relationship between the
pollutant control activities
and the WQS variance term
ensures that the term is
only as long as necessary
to achieve the highest attainable condition and that water quality progress is achieved
throughout the entire WQS variance term."105 In determining the term of a WQS variance,
states and authorized Tribes should account for time needed to efficiently structure and
plan sequential or overlapping activities, secure funding, collect and evaluate data on the
efficacy of the pollutant control activities, and document improvements in water quality to
guide upcoming decisions at critical milestones to ultimately achieve the adopted HAC.
States or authorized Tribes are required to provide supporting documentation justifying
the term of the WQS 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 WQS variance"
C40 CFR 131.14CbX2Xiiy). Therefore, to justify that the term is "only as long as necessary
to achieve the highest attainable condition," the supporting documentation should
explain why it will take the proposed length of time to implement the activities, monitor
water quality, and evaluate the outcome of the activities based on the water quality
monitoring. The state or authorized Tribe could provide this explanation by including,
for example, a document outlining the time needed for each of the steps to plan,
103 40 CFR 131.14(bX2Xii).
104 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51038 (August 21, 2015).
105 Ibid.
Example: A State or Authorized Tribe Accounting
for the Time Needed to Evaluate the Efficacy of
Intermittent or Streamflow-Paced Discharge
In this example scenario, a discharger may switch
from a continuous discharge to an intermittent
discharge and install a gauging station to
monitor the flow. In addition to time for planning
and installing the gauging station, the WQS
variance term would include the time needed
to evaluate how the waterbody responds to the
changes in flow.
DRAFT CHAPTER: WQS Variances 47
-------
implement, and evaluate the pollutant reduction activities, and the sequencing of these
steps. The document should be clear whether the activities are new discrete activities
or ongoing activities throughout the term of the WQS variance. For any WQS variance
that includes a PMP consistent with 40 CFR 131.14(bX1XiiXAX3^ or 131.14(bX1XiiXBX2).
the state or authorized Tribe would need to specify not only the pollutant minimization
activities and the implementing entity, but also the timeline for implementing those
activities. The following are sources of data or information that could be used to support
and document the term of the WQS variance to include monitoring and evaluating
activities to achieve the HAC:
>> Time-lapse modeling,
^ Peer-reviewed literature which could provide research-based estimates of
pollutant attenuation overtime throughout the system,
^ TMDL monitoring and modeling,
~> Remedial or removal clean up times for actions impacting the waterbody which
could provide estimates for pollutant loading over time from other sources on the
waterbody,
Estimates of time needed to install, test, evaluate, and optimize new treatment
technologies or operational practices,
Estimates of time needed to implement, and evaluate the results of, specific types of
NPS BMPs (e.g., from pilot projects, literature, or similar projects in other locations),
Hydrologic cycle timeframes-to evaluate the PMPs during wet and dry (or cold
and warm) conditions and assess long term results,
£>- Information from other compliance-related activities,
~> Information from the evaluation of other WQS variances similar to that being
proposed,
^ Source tracking tools which could be used to ascertain point source contributors
versus NPS (e.g., bacterial DNA; surrogate indicators like caffeine or
Pharmaceutical and Personal Care Products (PPCPs)), and
~> Load duration curves to tease out potential improvements at point sources.
DRAFT CHAPTER: WQS Variances 48
-------
Example: Determining the Term of a WQS Variance
State A has determined that installing the pollutant control technology that would
allow the City POTW to attain its WQBEL based on the underlying designated use
and criterion would cause substantial and widespread economic and social impacts on
the surrounding community. The state identifies the next best economically feasible
technology (i.e., pollutant control technology that would not cause substantial and
widespread economic and social impacts) and expresses the HAC as HAC2 reflecting the
effluent condition that will be achieved after the POTW implements that technology.
The state proposes the term of the WQS variance be seven years because they can
document that it will take the community approximately two years to secure funding,
two years to obtain bids and hire a contractor, two years to finalize designs and install the
pollutant control technology, and one more year to fine-tune the treatment and achieve
the full effects of chemical precipitation and filtration removal reflected in the effluent.
The EPA recommends that where the state or authorized Tribe "...does not have sufficient
information to identify the highest attainable condition that would be achieved" during
the WQS variance term, it should adopt a shorter WQS variance term reflecting the
HAC that is supported by the available information, including the pollutant control
activities identified in the WQS submission.106 A state or authorized Tribe could choose
to adopt a subsequent WQS variance as more data are gathered and additional pollutant
control activities are identified.
Term of an MDV: Additional Considerations
As a reminder, the term of the WQS variance can be either "an interval of time from
the date of EPA approval or a specific date."107 Where there are multiple dischargers in
an MDV with different permit cycles, a state or authorized Tribe could take one of two
approaches to identify the term of the MDV:
1. Specify one term that applies to all dischargers for which an MDV is applicable,
regardless of when the NPDES permits are issued.
For example, if the term is expressed as "10 years from the date of EPA
approval" and the WQS variance is implemented in a discharger's NPDES
permit upon permit reissuance three years after the EPA approves the MDV,
the discharger will have seven years to meet the MDV requirements. Note
that the permitting authority may, at the request of a permittee, modify a
permit to implement the MDV as soon as the EPA approves it so that the
discharger has the full length of the MDV term to implement the interim
requirements C40 CFR 124.5(a) and 40 CFR 122.62CaX3Xffl.
106 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51038 (August 21, 2015).
107 40 CFR 131.14(bX1Xiv).
-------
2. Specify different terms for the different dischargers where all dischargers subject
to the MDV are known at the time of adoption and a state or authorized Tribe can
demonstrate that each of those known dischargers needs a different amount of
time to achieve the same HAC.
For example, a state has determined it will take discharger A seven years to
achieve the HAC and dischargers B and C will each need ten years to achieve
the same HAC. The WQS variance term would be expressed as "seven years
from EPA approval" (or a specific date) for Discharger A and "ten years from
EPA approval" (or a specific date) for Dischargers B and C.
See section 6.4.2.1 of this chapter for further discussion of the relationship between the
WQS variance term and an NPDES permit term.
6.3.4 Reevaluations for WQS Variances with a Term of
Greater than Five Years
The EPA's regulation requires reevaluations for WQS variances with a term longer than five
years to ensure "active, thorough, and transparent reevaluations" of the applicable WQS
variance by a state or authorized Tribe where a longer WQS variance can be justified.108
40 CFR 131.14(b)(1)(iii). 131.14(b)(1)(v). and 131.14(b)(1)(vi) specify how states and
authorized Tribes must structure their WQS variance reevaluation. The structure requires
states and authorized Tribes to regularly evaluate the WQS variance and acquire updated
information, including public input, so that states and authorized Tribes can ensure the
WQS variance represents the HAC throughout the WQS variance term and continues to
drive incremental water quality improvements.
Under the EPA's regulation, the WQS variance with a term greater than five years must
include the following:
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." These reevaluations must occur
(i.e., be completed) at least once every five years after EPA approval and the results
must be submitted to the EPA within 30 days of completion of the reevaluation,109
A statement providing that the HAC is "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... whichever is more
stringent",110 and
108 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51039 (August 21, 2015).
109 40 CFR 131.14(bX1Xv).
1,0 40 CFR 131.14(bX1Xiii).
DRAFT CHAPTER: WQS Variances 50
-------
A provision specifying that "the WQS variance will no longer be the applicable
WQS 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" within 30 days of completion of the reevaluation.111
While 40 CFR 131.14 does not specify a maximum WQS variance term limit, the 1995
GLI specifies that a "WQS variance shall not exceed five years or the term of the
NPDES permit, whichever is less" (40 CFR Appendix F to Part 132 3.B."). Where both 40
CFR 131.14 and Part 132 apply, the state or authorized Tribe must adhere to the more
stringent of the two regulations. Therefore, where a state or authorized Tribe adopts
a WQS variance applicable to a waterbody that flows to the Great Lakes, the WQS
variance could not exceed five years.112
6.3.4.1 Reevaluate at Least Every Five Years (40 CFR 131.14(b)(1)(v))
To provide sufficient assurance that a state or authorized Tribe will actively reevaluate
a WQS variance with a term greater than five years at a reasonable and predictable
interval, a state or authorized Tribe must specify the frequency by which it will reevaluate
the WQS variance, which must occur (i.e., be completed) no less frequently than every
five years after EPA approval (40 CFR 131.14(b)(1)(v)). Requiring a reevaluation at least
every five years ensures that the state or authorized Tribe and the public assess updated
information and changed circumstances to determine whether the HAC, including
PMP activities where applicable, represents the greatest pollutant reduction achievable
throughout the WQS variance term.
States and authorized Tribes have the discretion to establish a reevaluation frequency for
each WQS variance coordinated with permit reissuances, triennial reviews, at significant
interim milestones or decision points, or any other frequency they choose, provided the
reevaluation occurs no less frequently than every five years from the EPA's approval
of the WQS variance. States and authorized Tribes can use this flexibility to reevaluate
a WQS variance in different ways to minimize the administrative burden that may be
associated with WQS variance reevaluations.113 Aligning the reevaluations with either
permit reissuance or triennial review, for example, would ensure the most up to date
information is available for those processes. See section 6.3.4.4 of this chapter for
further discussion.
To conduct a reevaluation using existing and readily available information as required by
40 CFR 131.14(b)(1)(v), states and authorized Tribes should proactively search for new or
updated data and information. "'New or updated data and information' include, but are
not limited to, new information on pollutant control technologies, changes in pollutant
sources, flow or water levels, economic conditions, and BMPs that impact the highest
1.1 40 CFR 131.14(b)(1)(vi).
1.2 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51040 (August 21, 2015).
1.3 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51038 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 51
-------
attainable condition."114 The state or authorized Tribe must also specify how it intends
to obtain public input (e.g., public meeting/webinar, public comment period, etc.) on
the revaluations.115 Public input during the revaluation need not be a public hearing as
defined bv40 CFR 25.5.
The revaluation should consider the following information:
1. The status of the progress made in implementing pollutant control technologies
and/or PMP activities to achieve the HAC,
2. Monitoring data to show the extent of any water quality progress,
3. An evaluation of whether there are any new feasible pollutant control
technologies available or any additional PMP activities that would result in greater
pollutant reductions than the current HAC, and
4. Determination whether a more stringent HAC is attainable based on the data and
information gathered.
The state or authorized Tribe may wish to specify in the WQS variance that the
discharger(s) provide these types of information to facilitate the revaluation.
When a state or authorized Tribe has adopted an MDV, the revaluation must still
occur at the frequency specified in the WQS variance (at least once every five years),
regardless of the timing of permit reissuance. Thus, there will be one revaluation
schedule for an entire MDV.
The state or authorized Tribe must submit the results of the revaluation to the EPA
within 30 days of completion of the revaluation.116 The results would include the
evaluation of the HAC and whether a more stringent HAC, including any additional PMP
activities, has been identified. The permitting authority "must refer to the revaluation
results when reissuing NPDES permits to ensure the permit implements any more
stringent applicable WQS that the revaluation provides."117 See section 6.4.2 of this
chapter for discussion of implementing a WQS variance in an NPDES permit.
1.4 Water Quality Standards Regulatory Revisions, 80 Fed, Reg. 51039 (August 21. 2015).
1.5 40 CFR 131.14(b)(1)(y).
1.6 ibid.
Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51039 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 52
-------
The EPA does not take action to review and approve or disapprove the results of a WQS
variance reevaluation under CWA Section 303(c)(3). However, because the results of
the reevaluation are important to ensure that reissued permits continue to derive from
and comply with applicable WQS, the EPA analyzes the reevaluation results to ensure
the reevaluation was conducted according to the requirements of the WQS variance and
the WQS variance remains consistent with 40 CFR 131.14.118 The EPA retains its NPDES
oversight authority119 to ensure permits derive from and comply with the applicable WQS,
including any limitations and requirements based on an updated HAC after a reevaluation.
6.3.4.2 Most Stringent HAC as the Applicable WQS
(40 CFR 131.14 CbXUCiii))
For a WQS variance with a term greater than five years, the state or authorized Tribe must
include a provision in the WQS variance that specifies the HAC applicable during the WQS
variance term shall be "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... whichever is more stringent."120 The EPA recognizes there may be some
instances where pollutant controls and activities are more effective than indicated by the
information available at the time of WQS variance adoption. Therefore, this required provision
requires states and authorized Tribes to work with the public to evaluate water quality
progress and adjust the HAC to be more stringent as needed without additional rulemaking.
The provision must be self-implementing so that if any reevaluation yields a more stringent
attainable condition, that condition becomes the applicable HAC without additional WQS
action by the state or authorized Tribe or the EPA. This provides the public certainty that the
state or authorized Tribe remains accountable for ensuring that the HAC remains focused on
making incremental progress towards eventually attaining the designated use and criterion
even with a long WQS variance term. Upon permit reissuance, the permitting authority will
use the results of the reevaluation to ensure the WQBEL (and permit terms and conditions) is
based on the more stringent applicable interim WQS consistent with 40 CFR 122.44(d)(1)(vii)
(A). The EPA explained that "States and authorized tribes can facilitate this coordination by
publishing and making accessible the results of the reevaluations."121
This self-implementing provision can only apply where the HAC becomes more stringent.
If a state or authorized Tribe believes that the reevaluation shows the HAC is no longer
attainable by the end of the WQS variance term and wishes to make it less stringent, the
state or authorized Tribe would need to adopt a revised WQS variance consistent with 40
CFR 131.14 and obtain EPA approval before it can be used for NPDES permitting decisions
or CWA Section 401 certifications.122
1.8 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51038 (August 21, 2015) and EPA's Response to
Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances, Docket # EPA-HQ-
OW-2010-0606, August 2015, pg.3-354, https://www.reaulations.aov/document/EPA-HO-OW-2010-0606-Q344.
1.9 40 CFR 123.44.
120 40 CFR 131.14(b)(1)(iii).
121 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51037 & 51039 (August 21, 2015).
122 Water Quality Standards Regulatory Revisions. 80 Fed. Reg. 51037 (August 21, 2015) and EPA's Response to
Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances, Docket # EPA-HQ-
OW-2010-0606, August 2015, pg.3-356, https://www.reaulations.aov/document/EPA-HO-OW-2010-0606-Q344.
DRAFT CHAPTER: WQS Variances 53
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More information on the relationship between WQS variances and NPDES permits is
discussed in section 6.4.2 of this chapter.
6.3.4.3 When the Reevaluation is Not Completed or Results Are Not
Submitted (40 CFR 131.14(b)(1)(vi))
To ensure that states and authorized Tribes remain accountable for reevaluating the
WQS variance consistent with the regulation, a state or authorized Tribe must include
a provision in the WQS variance that specifies the WQS variance will no longer be the
applicable WQS for CWA purposes if the state or authorized Tribe does not complete
the reevaluation of the WQS variance according to the specified frequency, or does
not submit the results to the EPA within 30 days of completion (40 CFR 131.14(b)(1)
(vi)). In such cases, "subsequent NPDES WQBELs for the associated permit must be
based on the underlying designated use and criterion rather than the highest attainable
condition, even if the originally specified variance term has not expired."123 The EPA's
long-standing interpretation, as reflected in practice, has been that the WQS variance
will again become the applicable WQS once the state or authorized Tribe completes the
reevaluation and submits the results to the EPA.124 The EPA retains its N PDES oversight
authority to ensure permits derive from and comply with the applicable WQS, including
any limitations and requirements based on an updated HAC after a reevaluation.
6.3.4.4 Aligning Reevaluation with Triennial Review or NPDES
Permit Reissuance
As described above, states and authorized Tribes can determine the frequency of
reevaluation for any WQS variance as long as the reevaluation frequency does not exceed
five years from the date of EPA approval. However, for administrative efficiency, the
EPA anticipates that many states and authorized Tribes will choose to align WQS variance
reevaluations with either their triennial review or NPDES permit reissuance. It is important
to note that where a state or authorized Tribe chooses to synchronize a WQS variance
reevaluation with permit reissuance or triennial review, the reevaluation must still occur on
schedule even if there is a delay with permit reissuance or with the triennial review.125
The following examples outline hypothetical scenarios for how a state or authorized Tribe
might align the WQS variance reevaluation with either their triennial review or NPDES
permit reissuance.
Example 1: Aligning WQS Variance Reevaluation with Triennial Reviews
Figure 6-1 shows how WQS variance reevaluations could work if a state or authorized Tribe
chooses to establish a three-year reevaluation schedule synchronized to its triennial review
schedule. To make this hypothetical scenario simple, it assumes the WQS variance applies to
123 Water Quality Standards Regulatory Revisions. 80 Fed. Reg. 51038 (August 21, 2015).
124 O'Connor, D. EPA. October 31, 2017. Letter to Montana Department of Environmental Quality: EPA Action on
Montana's Variance Rules. Region 8, Office of Water Protection, Denver, CO.
125 Water Quality Standards Regulatory Revisions. 80 Fed. Reg. 51039 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 54
-------
a single discharger for a single pollutant, starts at the beginning of the discharger's permit
cycle, and that the state or authorized Tribe conducts and submits the results of each
reevaluation to the EPA according to the specified schedule. This illustration represents a
hypothetical scenario where a state or authorized Tribe adopts, and the EPA approves, a
WQS variance with a 20-year term and a reevaluation frequency of three years after EPA
approval and every three years after that to align with the triennial review schedule.
YEAR
WQBEL
Triennial
review and
reevaluation.
More
Triennial
review and
reevaluation.
More
stringent HAC stringent HAC
not found. not found.
Triennial
review and
reevaluation.
More
strinqent
HAC
identified.
1
Triennial
review and
reevaluation.
More
stringent HAC
not found.
Triennial
review and
reevaluation.
More
strinqent
HAC
identified.
Triennial
review and
reevaluation.
More
stringent HAC
not found.
VARIANCE 1 HI
1 2 3 4 5
6 7 8 9 10
\
11 12 13 14 15!
i
! 16 17 18 19 20
i
PERMIT 1
PERMIT 2
PERMIT 3
PERMIT 4
State rule-
making and
EPA approval
of WQS
variance.
Permit Reissuance.
No change
to WQBEL.
Permit Reissuance.
Modified WQBEL
derived from more
stringent HAC.
t
Permit Reissuance.
Modified WQBEL
derived from more
stringent HAC.
WQS
variance
expires.
WQBEL - Water Quality Based Effluent Limit
HAC - Highest Attainable Condition
Figure 6-1. Example Diagram of Aligning WQS Variance Reevaluation with Triennial Review
During the first permit cycle of the WQS variance, the state or authorized Tribe
reevaluates the WQS variance at the same time it performs its triennial review and finds
no new data or information that suggests the permittee is capable of attaining a more
stringent HAC. The state or authorized Tribe submits the results of the reevaluation to
the EPA within 30 days of completing the reevaluation, as required by 40 CFR 131.14(b)
(1Xv), and makes the results publicly available (e.g., on the state's or authorized Tribe's
website). A state or authorized Tribe could streamline its permit reissuance process by
also sending the results of the reevaluation to the permitting authority at the same time
so there is no need for the permitting authority to look for the information at the time
of permit reissuance.
At Year 5 when "Permit 1" is about to be reissued, the permitting authority refers to
any reevaluation that occurred after the permit was last issued to determine if a more
stringent HAC was identified. In this hypothetical example, the reevaluation did not find
new data or information indicating a more stringent HAC. Upon referring to the results
of the reevaluation, the permitting authority reissues the permit, here labeled "Permit
2," based on the same HAC used for "Permit 1."
DRAFT CHAPTER: WQS Variances 55
-------
During the permit cycle labeled "Permit 2," the state or authorized Tribe reevaluates
the WQS variance at each triennial review (i.e., Years 6 and 9). In this example, the WQS
variance reevaluation that occurred during the triennial review at Year 9 resulted in
data and information that indicates a more stringent HAC is attainable. At Year 10 when
"Permit 2" is being reissued, the permitting authority refers to the latest WQS variance
reevaluation that occurred since the permit was last issued. The permitting authority
sees that the most recent reevaluation identified a more stringent HAC. Therefore,
the permitting authority establishes a permit limit for "Permit 3" on the basis of the
more stringent HAC. This more stringent permit limit is illustrated as the blue rectangle
labeled "Permit 3" with a decreased height as compared to the rectangle representing
"Permit 1" and "Permit 2."
The same process occurs for "Permit 3" and "Permit 4." The WQS variance is reevaluated
during each triennial review. When the permit is being reissued, the permitting authority
refers to the most recent WQS variance reevaluation that occurred since the last permit
was issued and incorporates a more stringent HAC, if identified, as the basis for the
reissued permit limit. More information on incorporating a WQS variance into an NPDES
permit is found in section 6.4.2 of this chapter.
Example 2: Aligning WQS Variance Reevaluation with NPDES Permit Reissuance
Figure 6-2 shows how WQS variance reevaluations could work if a state or authorized
Tribe chooses to establish a reevaluation schedule synchronized to the NPDES permit
cycle. To make this hypothetical scenario simple, it assumes the WQS variance applies
to a single discharger for a single pollutant, starts at the beginning of the discharger's
permit cycle, and that the state or authorized Tribe conducts and submits the results
of each reevaluation according to the specified schedule. This illustration represents a
hypothetical scenario where a state or authorized Tribe adopts, and the EPA approves,
a WQS variance with a 20-year term and a reevaluation frequency of four years after
EPA approval and every five years after that. The scenario is the same as the scenario
illustrated in Example 1 above, except that the WQS variance reevaluation occurs one
year prior to NPDES permit reissuance (i.e., four years after EPA approval and every
five years after that) instead of during each triennial review to ensure the permitting
authority has any needed information prior to permit reissuance. If a state or authorized
Tribe chooses to link the WQS variance reevaluation to its NPDES permitting process,
the state or authorized Tribe must still include the WQS variance in the public hearing
conducted as part of the WQS triennial review.126
126 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51039 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 56
-------
Triennial
review.
Triennial
review.
Triennial
review.
Triennial
review provides
additional
information.
1
Triennial
review.
Triennial
review.
WQBEL
VARIANCE
1 2 3 4 5
6 7 8 9 10
11 12
13\14 15
\
16 17 18 19
20
PERMIT 1
PERMIT 2
PERMIT 3
PERMIT 4
¦
r t
1
Reevaluation four
rule-making years after EPA
and EPA
approval
ofWQS
variance.
approval (one year
prior to permit
reissuance).
More stringent
HAC not found.
No change to
WQBEL for next
permit.
Reevaluation five
years later (one
year prior to permit
reissuance).
More stringent
HAC identified.
Modified WQBEL
for next permit
derived from more
stringent HAC.
T
Reevaluation one year
prior to permit reissuance
using additional information
from triennial review.
More stringent
HAC identified.
Modified WQBEL
for next permit
derived from more
stringent HAC.
Reevaluation
one year prior
to permit
reissuance.
WQS
variance
expires.
WQBEL - Water Quality Based Effluent Limit
HAC - Highest Attainable Condition
Figure 6-2. Example Diagram of Aligning WQS Variance Reevaluation with Permit Reissuance
Starting at the far left of the figure, the state or authorized Tribe adopts, and the EPA
approves, the WQS variance. The permitting authority then establishes the WQBEL for
that pollutant based on the HAC, as specified in the WQS variance.
In Year 3 of the first permit cycle, the state or authorized Tribe conducts a triennial
review. WQS variances, like any other WQS, are included in the triennial review process,
and the EPA expects states and authorized Tribes to use any information that comes
to light in the triennial review to inform the reevaluation of the WQS variance and the
subsequent permit reissuance. In this example, the first triennial review did not provide
any new data or information about the HAC.
At Year 4, one year prior to when the permit is due to be reissued, the state or
authorized Tribe conducts a reevaluation. In this hypothetical scenario, the state or
authorized Tribe does not find any new data or information indicating a more stringent
HAC during the first reevaluation. Noting the reevaluation results did not identify a
more stringent HAC, the permitting authority reissues the permit based on the same
HAC that was used for "Permit 1."
In Years 6 through 9 during the second permit cycle labeled "Permit 2," the state or
authorized Tribe conducts two triennial reviews, and again no new data or information
is identified or brought to the state or authorized Tribe's attention related to the HAC.
DRAFT CHAPTER: WQS Variances 57
-------
At Year 9, one year prior to the permit being reissued, the state or authorized Tribe
reevaluates the WQS variance, and determines that information shows the permittee can
attain a more stringent HAC. The permitting authority uses this newly applicable WQS
as the basis for the NPDES permit limit when it reissues the permit. This more stringent
permit limit is illustrated as the blue rectangle labeled "Permit 3" with a decreased
height as compared to the rectangle representing "Permit 1" and "Permit 2."
In Years 11 through 14 during the third permit cycle, the state or authorized Tribe
performs a triennial review. Unlike the previous three triennial reviews, however, in
this hypothetical example the public provides new data or information to the state or
authorized Tribe during the triennial review that shows greater pollutant reduction may
be feasible by the permittee. The state or authorized Tribe will use this information
during the next reevaluation at Year 14 to confirm whether a more stringent HAC is
attainable. If so, then this would be the applicable WQS for "Permit 4."
The reevaluation and triennial review schedules continue as planned until Year 19. At Year 19,
the state or authorized Tribe again conducts the scheduled reevaluation and, in preparation
for the WQS variance to expire, assesses the situation to determine what the path forward
should be. Subsequent WQS variances are discussed in section 6.3.5 of this chapter.
6.3.5 Subsequent WQS Variances
Before a WQS variance expires, a state or authorized Tribe will need to determine its
next steps. There are three scenarios that could occur once a WQS variance expires:
1. The state or authorized Tribe finds that the underlying designated use and
criterion are now attainable, and the discharger is able to achieve its WQBEL. The
discharger may need a permit compliance schedule to provide time to implement
known steps to achieve the WQBEL.
2. The state or authorized Tribe determines that the designated use and criterion
remain unattainable for a period of time, but additional water quality progress
can still be made. In this case, it can pursue adopting a subsequent WQS variance
consistent with 40 CFR 131.14.
3. The state or authorized Tribe determines that the designated use and criterion
remain unattainable, but no additional incremental water quality progress can be
made beyond what was achieved through the previous WQS variance. In this case,
it may pursue revising the designated use consistent with 40 CFR 131.10. See
Draft Chapter 2: Designated Uses of this Handbook for additional information on
designated uses.
Where the state or authorized Tribe determines that a subsequent WQS variance
is an appropriate next step, the state or authorized Tribe should recognize that the
circumstances may have changed and the justification for the WQS variance and/or the
HAC may differ from the previous WQS variance. The state or authorized Tribe may
use data and information collected during the previous WQS variance term to inform a
DRAFT CHAPTER: WQS Variances 58
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subsequent WQS variance; however, the subsequent WQS variance must still meet the
requirements of 40 CFR 131.14 and 40 CFR 131.20(b). The EPA's regulation does not
limit the number of subsequent WQS variances a state or authorized Tribe can adopt for
the same waterbody or discharger as long as each WQS variance is justified and provides
for incremental water quality improvements through the HAC.
Any subsequent waterbody WQS variance "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 WQS variance and
the water quality progress achieved" C40 CFR 131.14("b¥2XiiiXBD. Because waterbody
WQS variances relate to the entire waterbody or waterbody segment and require
consideration of both point and nonpoint sources of a pollutant, such information
is important for states, authorized Tribes, and interested stakeholders in evaluating
whether it is appropriate to adopt a subsequent WQS variance and what the conditions
of any such WQS variance should be.
DRAFT CHAPTER: WQS Variances 59
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6.4 IMPLEMENTING WQS VARIANCES
6.4.1 State and Authorized Tribe WQS Variance
General Policies
40 CFR 131.14 explicitly authorizes states and authorized Tribes to adopt WQS
variances. As a result, states and authorized Tribes are not required to adopt their
own WQS variance authorizing provisions before making use of WQS variances, although
they may choose to do so. The EPA recommends that states and authorized Tribes
consider adopting WQS variance policies to streamline the process, ensure consistency,
and make their expectations transparent. WQS variance policies can be used to specify:
~> The conditions under which the state or authorized Tribe will consider adopting
WQS variances,
The information dischargers must gather, analyze, and provide in order for
the state or authorized Tribe to develop, adopt, and submit to the EPA a WQS
variance consistent with 40 CFR 131.14,
The process the state or authorized Tribe will follow to develop and adopt WQS
variances, including how the public can provide input, and
Any general requirements or procedures for WQS variance reevaluations.
If a state or authorized Tribe adopts a general WQS variance policy as a binding provision,
such a policy would be considered a general policy under 40 CFR 131.13 that the EPA
would review and approve or disapprove under CWA Section 303(c). The EPA strongly
recommends that states and authorized Tribes work closely with their EPA regional WQS
counterpart when developing WQS variance policies.
It is important to note that the EPAs approval of any WQS variance general policy
does not convey automatic approval to any WQS variance adopted in accordance with
such policies. The EPA will review each WQS variance independently to determine and
document whether it is consistent with 40 CFR 131.14. WQS variance general policies
are discussed further in Chapter 5: General Polices of this Handbook.
While the EPAs WQS variance regulation at 40 CFR 131.14 became effective October
20, 2015, the EPA recognizes that some states and authorized Tribes may have CWA-
effective WQS variances and WQS variance policies and/or procedures approved prior to
the effective date. Because binding WQS variance policies and procedures dictate how
DRAFT CHAPTER: WQS Variances 60
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future WQS variances will be developed, the EPA's preamble to the rule specified that
"where state and authorized tribes have them and they are inconsistent with this rule,
those states and authorized tribes must review such policies and/or procedures prior to,
or simultaneously with, adopting the first WQS variance after the effective date of the
final rule."127 Doing so will ensure that any applicable WQS variance is adopted consistent
with both CWA-effective WQS variance policies or procedures and 40 CFR 131.14 and
will provide an accurate road map for the adoption of future WQS variances. The EPA
strongly encourages states and authorized Tribes to engage the public during triennial
reviews so the public may provide information needed to inform any revisions to the
WQS variances or WQS variance policies and procedures.
6.4.2 NPDES Permits
Once adopted by the state or authorized Tribe and approved by the EPA, the WQS
variance "shall be the applicable standard ...for the purposes of developing NPDES
permit limits and requirements under 301(b)(1)(C)."128 The NPDES permit regulation
requires NPDES permit limitations to derive from and comply with all applicable WQS
(40 CFR 122.44(d)(1)(vii)(A)). Therefore, where the EPA approves a WQS variance, it
becomes the applicable WQS from which the permitting authority must derive NPDES
permit limitations. An NPDES permit cannot implement a WQS variance unless or
until the EPA approves the WQS variance under CWA Section 303(c).129 Further, "A
WQS variance serves as the applicable water quality standard for implementing NPDES
permitting requirements pursuant to 40 CFR 122.44(d)...for the term of the WQS
variance. Any limitations 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" (40 CFR 131.14(c)).
To meet the requirements at both 40 CFR 122.44(d) and 131.14(c), a permitting authority
must ensure that any permit includes limitations necessary to achieve the applicable
HAC, including PMP activities, during the term of the WQS variance. Effective and
early coordination between the NPDES and WQS programs will facilitate WQS variance
implementation, such as coordination on the following:
Identifying and addressing any permitting concerns early in the WQS variance
development process,
Specifically and accurately describing the WQS variance interim requirements,
including PMP activities, that the discharger must meet and implement during the
WQS variance term,
Documenting discharger monitoring and performance data to facilitate
determination of the HAC, and
Providing useful information to inform any WQS variance reevaluation using
data gathered through the permit reissuance process, such as monitoring and
performance data (see section 6.3.4.1 of this chapter).
127 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51040 (August 21, 2015).
128 40 CFR 131.14(a)(3).
129 See also 40 CFR 131.21(c).
-------
Where a permittee is subject to enforcement action(s) for non-compliance and is
interested in requesting a WQS variance, the permittee and state or authorized Tribe
should consult with their EPA regional counterparts to determine the best way to proceed.
The following sections discuss the interconnectivity between WQS variances and NPDES
permits in more detail.
6.4.2.1 Relationship Between the WQS Variance Term and NPDES
Permit Term
WQS variances must include the term of the WQS variance, and the term must be only
as long as necessary to achieve the HAC (40 CFR 131.14(bX1Xiv)"). Once approved by the
EPA, the term of the WQS variance is part of the applicable WQS. WQBELs must derive
from and comply with "all applicable water quality standards," (40 CFR 122.44(d)(1)(vii)
(A)) and "Any limitations 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"(4G CFR 131.14(c)! However, NPDES permits are issued
on a standard five-year cycle that may not align with the term of a WQS variance. The
EPA recommends that the permitting authority and state or authorized Tribal WQS
program work together to coordinate permit issuance or permit renewal with the term
of any related WQS variance, where possible, to streamline implementation. See section
6.3.4.4 of this chapterfor discussion of aligning WQS variance reevaluation with NPDES
permit issuance or renewal.
DRAFT CHAPTER: WQS Variances 62
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The EPA's preamble to the 2015 WQS regulation addressed how a permitting authority
would proceed where the WQS variance term and NPDES term do not align. At 80
Fed. Reg. 51040, the EPA said "[i]f information is available to the permitting authority
indicating that the term of a WQS variance will end during the permit cycle, the
permitting authority must develop two WQBELs: one WQBEL130 based on the highest
attainable condition applicable throughout the WQS variance term, and another WQBEL
based on the underlying designated use and criterion to apply after the WQS variance
terminates. Including two sets of WQBELs that apply at different time periods in the
permit ensures that the permit will derive from and comply with WQS throughout the
permit cycle. If the state or authorized Tribe adopts, and EPA approves, a subsequent
WQS variance during the permit term to replace an expiring WQS variance, the new
WQS variance would constitute 'new regulations' pursuant to §122.62(a)(3Xi), and
the permitting authority could modify the permit to derive from and comply with the
subsequent WQS variance. At the request of the permittee, the permitting authority can
also utilize the Permit Actions condition specified in §122.41(f) to modify a permit and
revise the WQBEL to reflect the new WQS variance."131
Thus, consistent with the preamble to the final rule and both 40 CFR 131.14 and
40 CFR 122.44(d)(1)(vii)(A), permitting authorities need to include two WQBELs:
one WQBEL based on the HAC applicable throughout the WQS variance term, and
another WQBEL based on the underlying designated use and criterion to apply after the
WQS variance expires. Including two WQBELs in the relevant NPDES permit does not
preclude the state or authorized Tribe from adopting a subsequent WQS variance that
could be implemented in the NPDES permit after EPA approval.
If the permitting authority, where authorized by state regulation or 40 CFR 122.6.
administratively continues an expired NPDES permit that implements a WQS variance
by including two WQBELs, with one based on the underlying designated use and criteria,
and the permit remains administratively continued when the WQS variance expires, it
does not "administratively continue" the term of the WQS variance. Instead, the WQBEL
based on the underlying WQS would become applicable once the WQS variance expires,
as identified in the NPDES permit. If a state or authorized Tribe adopts, and the EPA
approves, a subsequent WQS variance, the permittee may receive an adjusted WQBEL
implementing the newly applicable WQS variance upon permit reissuance132 and can move
forward making incremental progress consistent with the WQS variance requirements.
The EPA recommends states and authorized Tribes prioritize NPDES permits implementing
WQS variances for timely reissuance to avoid a situation in which the more stringent
WQBEL based on the underlying WQS becomes effective in an administratively continued
permit despite the EPA approval of a subsequent WQS variance.
130 Including any permit limitations and requirements necessary to implement the WQS variance.
131 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51040 (August 21, 2015). See also 40 CFR 124.5 and 40
CFR 122.62(a)(3)(i).
132 A permit cannot be modified if it has expired and, as a result, is administratively continued. See 40 CFR 122.6
("When EPA is the permitting-issuing authority, the conditions of an expired permit continue in force under 5 U.S.C.
558(c) until the effective date of a new permit if...") (emphasis added).
DRAFT CHAPTER: WQS Variances 63
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The EPA acknowledges it took a different position in its Response to Comments. Water
Quality Standards Revisions, Chapter 3 Issue Category 8: WQS Variances (2015).133
In the Response to Comments, the EPA articulated that the permitting authority
would need to include two WQBELs where "information is available to the permitting
authority indicating that the term of a WQS variance will end during the permit cycle."
However, the EPA said "On the other hand, there might be a situation where the
state or authorized tribe adopts, and EPA approves, a WQS variance with a specific
duration (as required by section 131.14(b)(1Xiv)) that is set to match the 5 year permit
cycle or is longer than one permit cycle and, subsequently, the permit expires and is
administratively continued (as may be authorized under state or Federal regulations)" in
which case "If the administratively continued permit is in effect when the WQS variance
expires, the WQBELs in the permit remain the applicable requirement." Upon further
reflection, because the term of the WQS variance is a part of the applicable WQS, at
the time the WQS variance is adopted and approved it will be known when the WQS
variance will expire. Therefore, the NPDES permitting authority has all the information
it needs to ensure that the NPDES permit includes two WQBELs to address when the
variance is in effect and when it expires and thus always derives from and complies
with the applicable WQS, even if the NPDES permit is administratively continued. This
approach is consistent with the preamble language and is parallel to the expectations
under 40 CFR 122.47 that the permit terms and conditions include the final effluent limit
to be achieved once a permit compliance schedule has expired, even where that date is
beyond the permit term.
6.4.2.2 WQS Variances and NPDES Permit Compliance Schedules
There is often confusion regarding when it is appropriate to use a WQS variance versus
an NPDES permit schedule of compliance134 ("compliance schedule") as described at
40 CFR 122.47. A WQS variance and an NPDES permit compliance schedule are two
distinct tools each with its own purpose. A WQS variance may be appropriate to address
situations where the applicable designated use and criterion are unattainable for a
period of time and there is uncertainty as to what designated use and criterion may be
ultimately attainable, but incremental water quality progress can be made. A permit
compliance schedule, on the other hand, may be appropriate when the WQBEL based
on the applicable designated use and criterion is achievable, but the discharger needs
additional time to meet its WQBEL, such that it is possible to identify an enforceable
sequence of requirements such as actions or operations that will lead to compliance with
the applicable permit requirements "as soon as possible."135,136,137
133 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015. pg. 3-326.
134 40 CFR 122.2 and CWA Section 502(17).
135 Hanlon, J.A. EPA. 2007. Memorandum: Compliance Schedules for Water Quality-Based Effluent Limitations in
NPDES Permits. Office of Wastewater Management, Washington DC. https://www3.epa.gov/npdes/pubs/memo
complianceschedules mav07.pdf.
136 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51039 (August 21, 2015).
137 40 CFR 122.47(a)(1).
DRAFT CHAPTER: WQS Variances 64
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On May 10, 2007, the EPA issued a memo specifically to provide a framework for
EPA review of permits consistent with the CWA and its implementing regulations.138
Additionally, the EPA promulgated a new regulatory provision at 40 CFR 131.15
specifying that "[i]f a State intends to authorize the use of schedules of compliance for
water quality-based effluent limits in NPDES permits, the State must adopt a permit
compliance schedule authorizing provision. 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)(1)(C) of the Act."
The three main differences between a permit compliance schedule and a WQS variance
are summarized in Table 6-3.
TABLE 6-3: SUMMARY COMPARISON OF
PERMIT COMPLIANCE SCHEDULE AND WQS VARIANCE
Permit Compliance Schedule
WQS Variance
Purpose
A permit compliance schedule
provides time for a permittee
to complete actions needed to
achieve a WQBEL.
A WQS variance provides time to
make incremental water quality
progress and attain the HAC
while evaluating whether or not
the designated use and criteria
are attainable in the future.
Requirements
A permit compliance schedule
must contain an enforceable
sequence of requirements such
as actions and operations, leading
to compliance with a final WQBEL
(based on the designated use and
criterion) "as soon as possible."
See CWA Section 502(17) and
40 CFR 122.47.
A WQS variance is a time-limited
designated use and criterion
that reflects the HAC to drive
incremental water quality
improvements and serves as the
basis for WQBELs. The WQS
variance term is only as long as
necessary to achieve the HAC.
Mechanism
A permit compliance schedule is
a condition included in a permit,
by the permitting authority
consistent with CWA Section
502(17) and 40 CFR 122.47;
a compliance schedule can be
changed if the requirements of
40 CFR 122.62(a)(4) and
40 CFR 122.47 are met.
A WQS variance is a new
WQS adopted by the state or
authorized Tribe and must be
approved by the EPA consistent
with CWA Section 303(c) and
40 CFR 131.14: a subsequent
WQS variance can be obtained
if it meets the requirements of
40 CFR 131.14.
138 Hanlon, J.A. EPA. 2007. Memorandum: Compliance Schedules for Water Quality-Based Effluent Limitations in
NPDES Permits. Office of Wastewater Management, Washington DC. https://www3.epa.gov/npdes/pubs/memo
complianceschedules mav07.pdf.
DRAFT CHAPTER: WQS Variances 65
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Although a WQS variance and permit compliance schedule are two different tools, they
can be used together. As discussed earlier, the HAC becomes the applicable WQS upon
EPA approval of the WQS variance, but it is not expected to be attained until the end
of the WQS variance term. While the HAC is the new basis for a WQBEL, a permittee
may not be able to meet the WQBEL based on the HAC upon permit issuance. For
example, a permittee may still need additional time to install or upgrade pollutant
control technology. In this case, the permit authority could include a permit compliance
schedule, consistent with 40 CFR 122.47, to provide time to implement the specific
actions that will lead to compliance with the WQBEL based on the HAC.139
However, where the state or authorized Tribe has adopted an HAC that relies on
implementation of a PMP to drive forward progress (e.g., 40 CFR 131.14(bX1XiiXAX3)I it
is likely that the permittee would be able to immediately comply with the WQBEL based
on the quantifiable portion of the HAC, since it reflects the greatest pollutant reduction
achievable with the currently installed technology. Therefore, a permit compliance
schedule would not be needed, and the permittee would focus its efforts during the
WQS variance term on implementing the PMP activities incorporated in the permit.
Figure 6-3 uses a hypothetical example to illustrate how a permit compliance schedule
can be used to meet the interim requirements of a discharger-specific WQS variance.
In this example, the state or authorized Tribe adopted a more stringent criterion for a
pollutant, thus requiring a more stringent WQBEL, The EPA approved a 15-year WQS
variance to achieve the HAC. However, the permittee cannot meet the WQBEL based on
the HAC upon issuance of the permit implementing the WQS variance. The term of the
WQS variance represents when the HAC can be feasibly achieved based on actions that
need to be taken during the term of the WQS variance. Therefore, the term also reflects
when the WQBEL based on the HAC can feasibly be achieved. Thus, the permitting
13? Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51039 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 66
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authority grants a permit compliance schedule for the same amount of time, consistent
with the regulatory requirement that compliance be required "as soon as possible."140
Less
stringent
WQS
Variance
Begins
I
WQS
Variance
Ends
1
10 mg/L
o
4-»
ru
o
o
£
O
u
o
Q_
5 mg/L
3 mg/L
\k
More
stringent
^ntl
22****
'Pr0
2*9)
WQBEL Derived from HAC
WQBEL Derived from Criterion
\
l
Time (Years)
1 2 3 4 5
6 7 8 9 10
11 12 13 14 15
WQS Variance 1
Permit Compliance Schedule 1
Permit 1
Permit 2
Permit 3
1 Meets all statuatory and regulatory requirements
Figure 6-3. Example of a Permit Compliance Schedule Used with a WQS Variance
The enforceable sequence of required actions or operations in the permit compliance
schedule results in progressively better effluent quality shown, for illustrative purposes
only, as a descending solid blue line in the figure, until the effluent quality meets the
WQBEL based on the HAC specified in the permit by the end of the 15-year WQS
variance term and associated compliance schedule. Notice in this example that the
WQBEL based on the HAC for each permit cycle does not change over the course of
the 15-year WQS variance, indicating that no new information in the WQS variance
reevaluations showed a more stringent HAC was attainable. The permit compliance
schedule allows the permittee to remain in compliance with its permit throughout the
three permit terms of the 15-year WQS variance.
140 40 CFR 122.47(a)(1).
DRAFT CHAPTER: WQS Variances 67
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6.4.3 CWA Section 401 Certification
CWA Section 401 gives a state or authorized Tribe the ability to grant, grant with
conditions, deny, or waive certification for federally licensed or permitted activities
that may discharge into navigable waters. CWA Section 401 certifications ensure that
federally licensed or permitted projects (e.g., CWA Section 402 and Section 404
permits issued by the EPA or the Army Corps of Engineers, Federal Energy Regulatory
Commission licenses for hydropower facilities and natural gas pipelines, and Rivers
and Harbors Act Section 9 and 10 permits) comply with applicable water quality
requirements. "States and other certifying entities may also use an approved WQS
variance when issuing certifications under section 401 of the Act" (40 CFR 131.14(a)(3)).
This means that states or authorized Tribes have the discretion to decide whether to rely
on a WQS variance in issuing a CWA Section 401 certification.
For example, adopting a WQS variance prior to issuing a CWA Section 401 certification
may facilitate a state's or authorized Tribe's ability to issue a certification (possibly with
conditions, as per CWA Section 401(d)) that allows a federal license or permit to be
issued as long as it is consistent with the applicable WQS variance.141 "Without a WQS
variance, the state or authorized tribe's only options might be to deny certification which
prevents issuance of the federal license or permit, or waive certification and allow the
license or permit to be issued without conditions. If a state or authorized tribe issues a
CWA 401 certification based on an approved WQS variance, EPA recommends that the
state or tribe consider whether to include the applicable interim requirements from the
WQS variance as conditions of its certification."142
6.4.4 Waterbody Assessment and TMDLs
CWA Sections 305(b) and 303(d) set out mechanisms and processes for states and
authorized Tribes to assess whether a waterbody is meeting applicable WQS, identify
whether a waterbody is impaired, and determine which waters require TMDLs. TMDLs
are developed to allocate the loading capacity of pollutants in a manner that will attain
and maintain applicable WQS, including designated uses and criteria. In contrast, WQS
variances are time-limited and pollutant specific tools to make incremental water quality
progress towards attaining the designated use and criterion where they are attainable
for that period of time. Therefore, states and authorized Tribes are required to retain
in their WQS the underlying designated use and criterion, which are used as the basis
for waterbody assessments, listing of impaired waters, and TMDL (40 CFR 131.14(a)(2)).
Further, a WQS variance is only applicable forthe purposes of developing NPDES permit
limits and when issuing certifications under Section 401 of the CWA (40 CFR 131.14(a)(3)).
As a result, states and authorized Tribes cannot use a WQS variance as the basis forthe
assessment and listing of impaired waters under CWA Section 303(d) or to develop
a TMDL. This ensures that even where a WQS variance has been adopted, states and
141 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51038 (August 21, 2015).
142 Ibid.
DRAFT CHAPTER: WQS Variances 68
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authorized Tribes continue to identify which waters are not attaining designated uses and
criteria that reflect the ultimate desired condition for the waterbody. This transparency
is critical so that the public understands which waters are not attaining WQS.143
WQS variances also do not obviate the need to establish a TMDL for an impaired water.
CWA Section 303(d)(1)(A) directs states to include with their Section 303(d) list
submission to the EPA, "a priority ranking" for impaired waters still requiring TMDLs
that "tak[es] into account the severity of the pollution and the uses to be made of such
waters." States and authorized Tribes have flexibility in setting the priority ranking for
any particular waterbody provided that they have taken into account the statutory
factors and followed the relevant statutory and regulatory requirements.144 States
and authorized Tribes may take into consideration the existence of an approved WQS
variance, as well as any incremental water quality improvements that occur under the
WQS variance when prioritizing such waters for TMDLs. For example, when the EPA
approves an AADV on the same impaired water or approves a WQS variance applicable
to a waterbody or waterbody segment, the progress made by implementing the WQS
variance may help inform the development of a future TMDL. Therefore, where the
WQS variance can result in significant incremental water quality improvements on the
waterbody, a state or authorized Tribe may consider assigning the waterbody a lower
priority for TMDL development until after the incremental improvements from the WQS
variance have been realized.145
14a EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-324. https://www.reaulations.gov/documerit/EPA--HQ-
QW--2010-0606 0344.
144 40 CFR 130.7(b)(4).
\45 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-324. https://www.reaulations.gov/document/EPA-HQ-
QW-2010-0606-0344.
DRAFT CHAPTER: WQS Variances 69
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WQS Variances. TMDLs. and NPDES Permits
The WQBEL of any NPDES permit must be consistent with the assumptions and
requirements of any available wasteload allocation (WLA) in an EPA-approved or EPA-
established TMDL (40 C'FR 122.44(dX1Xvii)(B")). However, this does not preclude a
state or authorized Tribe from adopting a WQS variance where justified consistent with
40 CFR 131.14. All WQBELs in an NPDES permit must derive from and comply with all
applicable WQS C40 CFR 122.44(dX1)(viiXA)) and a WQS variance is an applicable WQS.
If the state or authorized Tribe adopts and the EPA approves a WQS variance for the
same pollutant addressed by the WLA, the WLA would not be available (or applicable)
to the permittee subject to a WQS variance because a WLA in the TMDL is based on the
underlying designated use and criterion (and not the HAC established in a WQS variance).
Rather, the WQS variance would become the applicable WQS for NPDES permitting
purposes while the WQS variance is in effect and must derive from and comply with the
applicable HAC. The EPA further explained in its preamble to the 2015 Final Rule that
"Upon termination of the WQS variance, the NPDES permit must again derive from
and comply with the underlying designated use and criterion and be consistent with the
assumptions and requirements of the WLA (as it is again 'available')."146
146 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51040 (August 21, 2015).
DRAFT CHAPTER: WQS Variances 70
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6.5 WQS VARIANCES, DESIGNATED USE
- REVISIONS, AND SITE-SPECIFIC
CRITERIA ¦
6.5.1 WQS Variances and Designated Use Revisions
I is important to understand that the purpose of a WQS variance is different from
that of a designated use revision. A WQS variance is only appropriate when the
designated use is unattainable for a period of time and incremental water quality
improvements can be made. On the other hand, where the state or authorized Tribe can
demonstrate that a designated use (that is not an existing use) cannot be attained and
can identify a different designated use that may be ultimately attainable (i.e., HAU),
the state or authorized Tribe should not seek a WQS variance but instead perform the
required analysis for a designated use revision (i.e., a use attainability analysis (UAA)'
for CWA Section 101(a)(2) uses or a "use and value" demonstration for non 101(a)(2)
uses).148 See Draft Chapter 2: Designated Uses of this Handbook for more information
on designated uses and designated use revisions.
Because the goal of a WQS variance is to make incremental progress toward eventually
attaining a designated use that is unattainable for a period of time, it is important to
ensure that the protections provided by all other criteria related to the underlying
designated use are maintained and the underlying goal remains in place. Therefore,
unless the state or authorized Tribe adopts, and the EPA approves, a revision to the
underlying designated use and criterion consistent with 40 CFR 131.10 and 131.11.
the state or authorized Tribe must retain the underlying designated use and criterion
addressed by the WQS variance in their standards to apply to all other permittees not
addressed in the WQS variance, for identifying threatened and impaired waters under
CWA Section 303(d). and for establishing a TMDL.149 In addition, "all other applicable
standards not specifically addressed by the WQS variance remain applicable."150
147 40 CFR 131.3(g): A "use attainability analysis is a structured scientific assessment of the factors affecting the
attainment of the use which may include physical, chemical, biological, and economic factors as described in §
131.10(g)."
148 EPA's Response to Comments, Water Quality Standards Regulatory Revisions, Chapter 3 Issue Category: Variances,
Docket # EPA-HQ-OW-2010-0606, August 2015, pg. 3-293, https://www.reaulations.aov/docurnent/EPA-HO-
QW-2010-0606-0344.
149 Water Quality Standards Regulatory Revisions, 80 Fed. Reg. 51036 (August 21, 2015) and 40 CFR 131.14(a)(2).
150 40 CFR 131.14(a)(2).
DRAFT CHAPTER: WQS Variances 71
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6.5.2 WQS Variances arid Site-Specific Criteria
In some situations, site-specific criteria would be more appropriate than a WQS variance.
States and authorized Tribes often apply water quality criteria to a wide range of
waterbodies and conditions without doing individual waterbody assessments. Therefore,
if the water quality criteria in a waterbody are not being met but the designated use
is being attained, it is possible the criteria might be more stringent than is needed to
protect the designated use due to chemical, physical, or biological characteristics of
the individual waterbody. When a state or authorized Tribe determines that one or
more criteria for a particular waterbody or waterbody segment is more stringent than
necessary to protect the designated use, the state or authorized Tribe may develop and
adopt site-specific criteria to provide protection appropriate for the individual chemical,
physical, and/or biological waterbody conditions. Under such circumstances site-
specific criteria may also afford dischargers relief from unnecessarily stringent WQBELs.
Once approved by the EPA, the site-specific criteria become the applicable WQS that
would be used by the permitting authority to derive WQBELs. Site-specific criteria are
discussed further in Chapter 3: Water Quality Criteria of this Handbook.
Variances 72
DRAFT CHAPTER: WQS
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6.6 WQS VARIANCES AND TRIBAL
RESERVED RIGHTS
The EPA promulgated "Water Quality Standards Regulatory Revisions To Protect
Tribal Reserved Rights" on May 2, 2Q24.151 The contents of this WQS Handbook
chapter as it applies to 40 CPR 131,9 are appropriate for consideration during any
state or authorized Tribal WQS adoption, revision, and implementation, as well as the
implementation of federally promulgated WQS. For more information on protecting
Tribal reserved rights, see the Revising the Federal Water Quality Standards Regulation
to Protect Tribal Reserved Rights website.152
151 Water Quality Standards Regulatory Revisions to Protect Tribal Reserved Rights, 89 Fed. Reg. 35717 (May 2, 2024).
https://www.aovinfo.Qov/content/pkg/FR-2024-05-02/pdf/2024-09427.pdf.
152 https://www.epa.aov/wqs-tech/revisina-federal-water-qualitv-standards-reaulation-protect-tribal-reserved-riahts.
DRAFT CHAPTER: WQS Variances 73
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6.7 FEDERAL PROMULGATIONS FOR STATES
AND TRIBES^ ^ -
AS a matter of policy, the EPA prefers that states and authorized Tribes adopt their
own WQS. However, under Section 303(c)(4) of the CWA and 40 CFR 131,22. the
EPA must promptly propose federal WQS if either of the following conditions occur:
The EPA determines that a new or revised WQS submitted by a state or
authorized Tribe is not consistent with CWA requirements and 40 CFR Part 131,
and the state or authorized Tribe does not adopt changes the EPA specifies within
90 days from that disapproval.
In any case where the EPA Administrator determines that a new or revised WQS is
necessary to meet CWA requirements and 40 CFR Part 131.
In either situation, should the EPA propose federal WQS, it must promulgate federal
WQS within 90 days of such a proposal unless the state or authorized Tribe adopts, and
the EPA approves, the WQS prior to the deadline. The EPA's promulgation of federal
WQS for states and Tribes can be found at 40 CFR Part 131. Subpart D (See Chapter
6: Procedures for Review and Revision of Water Quality Standards of this Handbook
for more information on federal promulgations). Please see the Federally Promulgated
Water Quality Standards for Specific States. Territories, and Tribes website153, for a full
iisting of EPA federal promulgations.
WQS variances remain available to states and Tribes where the EPA promulgates
designated uses and/or water quality criteria to protect designated uses under CWA
Section 303(c)(4). Such WQS variances must be consistent with 40 CFR 131.14 and are
only applicable for CWA purposes once approved by the EPA. Therefore, the guidance
and recommendations of this WQS Handbook chapter are applicable for the adoption,
revision, and implementation of any WQS variance.
,5'' https://www.epa.Qov/wqs-tech/federallv-promulaated-water-qualitv-standards-specific-states-territories-and-
tribes.
DRAFT CHAPTER: WQS Variances 74
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The EPA developed a WQS Variances website154 to provide information and
additional resources to help states and authorized Tribes navigate the requirements
of 40 CF'R 131.14. The website includes links to:
1. WQS Variance Overview Presentation155
This WQS Variance Overview presentation explains the basics of WQS variances and how
a WQS variance can help to make water quality improvements.
2. WQS Variance Infographics156
The EPA developed a series of WQS variance infographic to explain the basics of WQS
variances. These infographics are written in plain language to help states and authorized
Tribes effectively communicate to stakeholders what a WQS variance is, how a WQS
variance can be used to gain incremental improvements in water quality, and how
interested stakeholders can get involved.
3. WQS Variance Building Tool157
The WQS Variance Building Tool is designed to help states and authorized Tribes
determine whether a WQS variance is appropriate for a particular situation. If so, the
tool helps the entity navigate the requirements at 40 CFR 131.14 to determine what a
WQS variance would look like and what additional information must be documented
and submitted to the EPA to support the WQS variance. The draft regulatory language
that results from the use of this tool is intended as a regulatory framework for the state
or authorized Tribe to use as a starting point when drafting a WQS variance. States
and authorized Tribes may tailor the draft regulatory language to include additional
information that more accurately captures the case-specific facts of the individual WQS
variance or fits a desired format as long as all federal requirements are met. The final
regulatory language and all necessary supporting documentation can then be adopted
and submitted to the EPA for CWA Section 303(c) review.
Use of this tool and resulting draft regulatory language does not guarantee EPA approval.
The EPA encourages early and frequent coordination between a state or authorized Tribe
and their EPA regional WQS counterpart before adopting the WQS variance to provide
the best chance that the submission meets the requirements of the CWA and the EPAs
regulation. Refer to the EPA's website for relevant contact information.158
154 https://www.epa.gov/wqs-tech/water-quality-standards-variances.
155 https://www.epa.qov/system/files/documents/2024-05/wqs-variances-overview-4.2024.pdf.
156
15?
158
https://www.epa.gOv/wqs-tech/water-qualitv-standards-variances#anchor-2.
https://www.epa.gov/wqs-tech/water-qualitv-standards-variance-buildinq-too!.
https://www.epa.gov/wqs-tech/forms/contact-us-standards-water-body-health-requlations-and-resources#tab-1.
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The EPA has also developed several resources to accompany the WQS Variance Building
Tool. These include a collection of frequently asked questions that will help highlight
what information a state or authorized Tribe should be thinking about before they
begin using this tool. There are also checklists for a state or authorized Tribe to use to
determine if it has met the regulatory requirements for a WQS variance applicable to
specific dischargers and has included all of the required supporting documentation in its
WQS variance submission to the EPA.
~> Water Quality Standards Variance Building Tool - Frequently Asked Questions
(2Q17).159
Checklist For Evaluating State Submission of Discharger-Specific Water Quality
Standards Variances (2017).160 and
Checklist for Water Quality Standards Variance Supporting Documentation
Requirements (2017)161
154 https://www.epa.aov/sites/production/files/2017-07/documents/variance-buildina-tool-faqs.pdf.
160 https://www.epa.gov/sites/production/files/2016-03/docurinents/checklist-evaluatina-discharaer-specific.pdf.
16! https://www.epa.aov/sites/default/files/2017-07/documents/checklist-variance-supportina-documentation.pdf.
DRAFT CHAPTER: WQS Variances 76
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