Shore hugging plumes are a particular concern in all water bodies.
Shore areas are often the most biologically productive and sensitive
areas of a water body, and they are often used for recreation. Shore-
hugging plumes generally do not mix as well with receiving waters and,
thus, do not dilute as well as mixing zones with other shapes that do
not hug shorelines. Because shore-hugging plumes tend to keep unmixed
water over the benthic area or in the recreational area, they are more
likely to adversely affect the designated uses of the water body.
Therefore, EPA is including avoidance of shore-hugging plumes in the
design of outfalls.
    Because an outfall design affects the amount of initial mixing that
occurs, EPA is proposing language to encourage dischargers to utilize
the best practicable engineering design of the outfall to maximize
initial mixing. Sometimes, modifying the design of the diffuser, the
location of the outfall, or other outfall design characteristics can
reduce significant adverse impacts to the water body.
    Quantitative measures for certain mixing zone elements that are
sufficient for permitting authorities to develop associated WQBELs in a
transparent and straightforward manner provide for regulatory certainty
and consistency. EPA solicits comments on its chosen measures and
whether other measures may be more appropriate.
    Mixing zone guidance \47\ produced by EPA since 1972 has
consistently emphasized the need to protect both sessile organisms and
swimming and drifting organisms, as well as human recreation, when
developing and

locating a mixing zone. Preventing adverse impacts can involve not only
limiting the scope and location of the discharge but may warrant
prohibition of the mixing zone for the pollutant type or location.
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    \47\ For example, the Water Quality Standards Handbook, August
1994, the Technical Support Document for Water Quality-based Toxics
Control (TSD), March 1991, and EPA's Compilation of Mixing Zone
Documents, 2006.
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    Mixing zones may not be appropriate for all pollutants. For
example, mixing zones may not be appropriate for bioaccumulative
pollutants because greater bioaccumulation in the portion of the
aquatic food web located within the mixing zone may elevate human
health risks and prevent protection of the designated use of the water
body as a whole. Because fish tissue contamination tends to be a far-
field problem affecting entire or downstream water bodies rather than a
near-field problem confined to the area within a mixing zone, EPA's
position is that without adequate justification that designated uses
will be protected, it is not advisable for mixing zone policies to
allow mixing zones for discharges of bioaccumulative pollutants. EPA
adopted a similar approach in 2000 when it amended its 1995 final Water
Quality Guidance for the Great Lakes System at 40 CFR part 132 to phase
out mixing zones for existing discharges of bioaccumulative pollutants
and ban such mixing zones for new discharges within the Great Lakes
Basin.
    Mixing zones also may not be appropriate for pathogens, such as
bacteria, or pathogen indicators because they may cause significant
human health risks and endanger critical areas (e.g., recreational
areas). EPA's position is that it is not advisable to allow mixing
zones for bacteria or other pathogens in waters designated for primary
contact recreation. For a river or stream segment designated for
primary contact recreation, the presumption is that primary contact
recreation can safely occur throughout the segment and, therefore, that
pathogen levels will not exceed criteria throughout the segment.
Epidemiological studies have demonstrated that illness rates are higher
when the criteria are exceeded compared to when those criteria are not
exceeded (see sections 3.2 and 3.3 of the EPA's Recreational Water
Quality Criteria (2012)). Therefore, people recreating in or through a
bacteria mixing zone (where bacteria levels may be elevated above the
criteria levels) may be exposed to greater risk of gastrointestinal
illness than would otherwise be allowed by the state or Tribal criteria
for protection of the recreation use. For these reasons, EPA proposes
in this rule to prohibit mixing zones for discharges of bioaccumulative
pollutants and for pathogens and pathogen indicators without adequate
justification that designated uses will be protected.
    EPA's proposed mixing zone policy does not preclude reliance on
dilution allowances for situations in which rapid and complete mixing
of a discharge occurs in the receiving water. The term ``dilution
allowance'' refers to a portion of the flow in a river or stream
allocated for dilution of a discharge of pollutants. A dilution
allowance may be authorized by the Regional Administrator at the time a
CWA section 402 or section 404 permit is issued, renewed, or materially
modified and is in effect as long as the permit remains in effect. For
more information on dilution allowances, refer to EPA's NPDES Permit
Writers' Manual.\48\
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    \48\ U.S. EPA NPDES Permit Writers' Manual. https://www.epa.gov/sites/default/files/2015-09/documents/pwm_2010.pdf.
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    EPA invites comments on the proposed mixing zone policy and whether
EPA should include a detailed mixing zone policy in its promulgation.
In particular, EPA invites comments on the details proposed at 40 CFR
131.XX(g)(2)(vii)(A) and (B) of this proposed rule regarding mixing
zone size and shape restrictions. EPA specifically seeks comment on
whether: to alter any of the detailed restrictions; to include less
detail in the final rule: or to consider additional information to
inform the proposed mixing zone restrictions given the national scope
of this rulemaking.
2. Compliance Schedule Authorizing Provision
    EPA regulations also allow for compliance schedules to be included
in NPDES permits to allow permittees additional time to comply with
effluent limitations. Such schedules must require compliance by the
permittees as soon as possible, but in no case may extend beyond
compliance dates established by the CWA. See 40 CFR 122.47. Compliance
schedules may not be issued for WQBELs unless authorized in the
applicable water quality standards or implementing regulation. See 40
CFR 131.15.
    EPA proposes to include a compliance schedule authorizing provision
in the baseline WQS such that EPA could issue a compliance schedule as
part of an NPDES permit that would require the discharger to comply as
soon as possible with any WQBEL in a permit reissued or modified on or
after the effective date of the final rule. EPA proposes the compliance
schedule authorizing provision would provide that EPA may include
compliance schedules where appropriate in establishing effluent
limitations to meet these baseline WQS for Indian reservation waters,
consistent with 40 CFR 122.47.
    EPA invites comment on the inclusion of a compliance schedule
authorizing provision, and on the compliance schedule authorizing
provision in the proposed baseline standards.

VI. Proposed Procedure To Revise a Designated Use, Add a Designated
Use, or Establish a Water Quality Standards Variance After the Proposed
Rule Is Final

    EPA anticipates that data and information may become available
after the baseline WQS rule becomes final that could lead EPA to
identify a need, or a Tribe to request, that EPA revise or add
designated uses and associated criteria or establish a WQS variance for
Indian reservation waters covered by this rule. While EPA retains the
discretion to issue a subsequent Federal rulemaking to take such
actions, EPA is proposing to include a Federal administrative procedure
that could result in revisions to the applicable baseline WQS, where
appropriate, for specified water bodies covered by this WQS rule and
consistent with 40 CFR part 131. The Regional Administrator will follow
the public participation requirements of CWA section 303(c)(1), 40 CFR
131.20(b), and 40 CFR part 25 for any action taken under this
procedure. Under this procedure, the Regional Administrator would
prepare and make available to the public supporting documentation
consistent with what EPA regulations require of states and authorized
Tribes, EPA regulation 40 CFR 131.10 and 131.14, and would provide an
opportunity for public comment on the proposed designated use
revisions, additions, or establishment of a WQS variance.
    EPA's WQS regulation: (1) specifies requirements that must be met
when states and authorized Tribes adopt or revise designated uses (40
CFR 131.10); and (2) authorizes and specifies requirements for states
and authorized Tribes to adopt WQS variances that provide time to make
incremental progress towards the applicable WQS where the applicable
designated use and associated criteria are not currently attainable (40
CFR 131.14).
    To revise a use specified in CWA 101(a)(2), a Use Attainability
Analysis (UAA) must be conducted that finds the use(s) are unattainable
based on one of the factors in 40 CFR 131.10(g). The UAA, defined in 40
CFR 131.3(g), is a structured scientific assessment of the

factors affecting the attainment of the use which may include physical,
chemical, biological, and economic factors. When a UAA justifies
revision of the unattainable designated use, 40 CFR 131.10(g) requires
adoption of the highest attainable use. Additionally, states and
authorized Tribes cannot remove an existing use, defined as those uses
actually attained in the water body on or after November 28, 1975,
whether or not they are included in the WQS. 40 CFR 131.3(e).
    A non-101(a)(2) use as defined at 40 CFR 131.3(q) may be revised
after taking into consideration the use and value of water for public
water supplies, agricultural, industrial and other purposes including
navigation. (See 40 CFR 131.10(k)(3))
    WQS variances established in accordance with 40 CFR 131.14 provide
a flexible but defined pathway to make incremental water quality
improvements if the applicable designated use and associated criteria
are not immediately attainable but may be attainable in the future. Per
40 CFR 131.14(b)(1)(ii), WQS variances specify the interim requirements
that apply during the WQS variance term based on the highest attainable
condition. Further, WQS variances, once applicable, serve as the basis
for water quality based effluent limits in NPDES permits and for
issuing certifications under CWA section 401 for the parameter and
permittee or water body identified in the WQS variance. (40 CFR
131.14(a)(3)) Once the WQS variance expires, NPDES permits must be
written to meet the underlying designated use and associated criterion
or a subsequent WQS variance must be established. For additional
information on WQS variances, please refer to https://www.epa.gov/wqs-tech/water-quality-standards-variances.
    Title 40 CFR 131.XX(i) of this proposed rule lays out a Federal
administrative procedure for the relevant Regional Administrator to
determine whether a new or revised designated use and/or a WQS variance
is appropriate for a water body covered by this rule. Under the
proposed rule, in addition to the Regional Administrator being able to
identify such a need, a Tribe whose Indian reservation is affected may
also request a new or revised designated use and/or a WQS variance.
    For additions or revisions of designated uses, the Regional
Administrator would apply EPA regulations at 40 CFR 131.10 to evaluate
whether the requested change is justified for the specified water body.
If a Tribe requests the revision of any CWA section 101(a)(2)
designated use applicable through the baseline WQS rule, the Regional
Administrator would determine through a UAA where required by 40 CFR
131.10(j) whether the use is an existing use and whether any of the
factors in 40 CFR 131.10(g) preclude attainment of that designated use.
If a Tribe requests additions or revisions of any designated non-
101(a)(2) use, the Regional Administrator would determine whether the
requested change is appropriate based on a use and value demonstration
per 40 CFR 131.10(k)(3). If a Tribe requests to establish WQS
variances, the Regional Administrator would apply the provisions of 40
CFR 131.14 to evaluate whether the requested WQS variance is justified,
including whether there is a demonstrated need for the variance based
on the factors in 40 CFR 131.14(b)(2)(i)(A).
    Any final decisions made by a Regional Administrator through this
Federal administrative procedure that the requested use change or WQS
variance is appropriate and justified would result in revisions to the
applicable WQS for the specific parameter(s), water body/waterbody
segments(s), and discharger (in the case of a discharger-specific WQS
variance). Such revised or additional designated uses and the
associated criteria, and/or WQS variances would be effective for
purposes of the CWA, including for CWA section 402 NPDES permitting
purposes. For WQS variances, those CWA purposes are limited to
developing NPDES permit limits under 301(b)(1)(C), where appropriate,
and issuing certifications under section 401 of the CWA pursuant to 40
CFR 131.14(a)(3).
    Pursuant to the proposed Federal administrative procedure, a
decision by a Regional Administrator would be final and effective upon
signature without necessitating a subsequent Federal rulemaking
revising the baseline WQS rule. This is because this decision would not
result in a change to the baseline WQS rule, which is a nationally
applicable framework that is intended to be tailored to specific Indian
reservation waters as implemented. Rather, the decision would result in
a change to the individual WQS applicable to a particular Indian
reservation, as opposed to a change to any provision of the rule
itself. While the agency is proposing this Federal administrative
procedure as an alternative to subsequent Indian reservation-specific
promulgations of revised designated uses or WQS variances, the agency
could effectuate such changes through future rulemakings applicable to
individual Indian reservations. This procedure is not integral to this
proposed rule. Rather, this rule is designed to operate either with or
without the Federal administrative procedure. To enhance public
transparency under the proposed Federal administrative procedure, EPA
would maintain a public website \49\ containing an updated list of the
applicable designated uses and associated criteria, and WQS variances
with accompanying explanations of the statutory and regulatory basis
for the decisions.
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    \49\ EPA will specify the website in the final rule.
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    In all cases when implementing the procedure, the Regional
Administrator would initiate consultation with the Tribe whose waters
would be affected by the revised designated uses, consistent with the
proposed Tribal consultation provision at 40 CFR 131.XX(b) and as
described in section V of this preamble.
    EPA solicits comment on whether EPA should include a provision as
part of 40 CFR 131.XX(i) specifying that the Tribe must request in
writing any designated use revision that would result in the designated
use and associated criteria being less stringent than those applicable
under the baseline WQS before the Regional Administrator would proceed
with such an action. EPA solicits comment on whether a similar
provision should be included when establishing a WQS variance. EPA is
interested in whether such regulatory provisions would be beneficial to
ensure Tribes have the opportunity to conduct appropriate oversight of
any adoption of WQS less stringent than originally promulgated by this
rule. Alternatively, rather than specify a requirement that a Tribe
must make such a request in writing before the Regional Administrator
would proceed with such an action, EPA seeks input on whether such
Tribal oversight could be provided through existing Regional Tribal
consultation procedures that will be implemented consistent with the
proposed requirement at 40 CFR 131.XX(b) to initiate consultation on
any action that may affect Tribal interests.
    EPA envisions that the proposed Federal administrative procedure
for revising or adding designated uses or establishing WQS variances
would entail the following four steps:
     Step 1--The Regional Administrator identifies and/or the
Tribe requests a water(s) for which a revised designated use or
additional

designated use may be justified or identifies the water(s),
permittee(s) and parameters for which a WQS variance may be justified.
     Step 2--EPA, working with the Tribe, assembles the data
(including any data provided by a third party), conducts the analyses
required by the relevant regulatory provision (including any analyses
provided by a third party), and prepares the supporting documentation
demonstrating that (1) the revised or added designated use is justified
consistent with the requirements of the CWA and EPA's regulation,
specifically at 40 CFR 131.10, or (2) the WQS variance is justified
consistent with the requirements of the CWA and EPA's regulation,
specifically at 40 CFR 131.14.
     Step 3--Regional Administrator publishes a notice of a
public hearing at least 45 days in advance of the public hearing
describing the proposed designated use revision or addition and the
associated criteria and/or WQS variance, providing the relevant
analyses and documentation at least 30 days in advance of the public
hearing, announcing its intent to hold at least one public hearing, and
establishing a 45-day public comment period for the public to submit
written comments on the proposed revisions. EPA intends to rely on
EPA's Public Notices website \50\ to publish public notices and to
leverage any existing public notification processes that relevant
Tribes may have in place. These efforts must be consistent with the
public participation requirements of CWA section 303(c)(1), 40 CFR
131.20(b), and 40 CFR part 25.
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    \50\ Public Notices at U.S. EPA, website at https://www.epa.gov/publicnotices.
---------------------------------------------------------------------------

     Step 4--The Regional Administrator reviews and considers
comments and makes a final decision concerning whether revising a
designated use, adding a designated use, and/or establishing a WQS
variance is justified, consistent with the requirements of the CWA and
EPA's regulations 40 CFR 131.10 and/or 131.14. Where the Regional
Administrator makes such a final decision, those changes become
applicable for CWA purposes. (As mentioned previously, for WQS
variances, those CWA purposes are limited to purposes of developing
NPDES permit limits under 301(b)(1)(C), where appropriate, and issuing
CWA section 401 certifications pursuant to Sec.  131.14(a)(3). EPA
maintains and makes available to the public an updated list of the
applicable designated uses and WQS variances with the explanation of
the statutory and regulatory basis for the decisions available at a
website location to be provided in the final rule.
    EPA is not reopening 40 CFR 131.10 or 131.14 with this proposal,
and thus does not seek comment on the provisions in 40 CFR 131.10 or
131.14. Rather, EPA invites comment on the proposed Federal
administrative procedure for EPA to revise a baseline designated use,
add a designated use, or establish a WQS variance for a specific Indian
reservation water body covered by this proposed rule based on
consideration of location-specific factors involving the four steps as
identified.
    EPA continues to encourage Tribes who are interested in WQS that
reflect site-specific, tailored designated uses for particular Indian
reservation waters to obtain TAS for WQS and adopt their own WQS,
subject to EPA review and approval under CWA section 303(c).\51\
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    \51\ Any state or authorized Tribe that is adopting its own WQS
has the discretion to use an administrative procedure to streamline
the rulemaking process; however, CWA section 303(c)(2)(A) still
requires the state or authorized Tribe to submit any WQS adopted
pursuant to state or Tribal law to EPA for review and approval or
disapproval.
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VII. Implementation of Baseline Water Quality Standards in Clean Water
Act Programs

A. Section 402 NPDES Discharge Permits

    Under CWA section 402, any facility or activity that discharges
pollutants (other than dredged or fill material) from a point source
into the waters of the United States must obtain and comply with an
NPDES permit. EPA regulations that describe the requirements and
procedures for the development of NPDES permits are contained in 40 CFR
parts 122, 124, 125, and 129. Effluent limitations for pollutants that
are contained in NPDES permits can include TBELs and WQBELs. TBELs
represent the level of pollutant reduction that can be achieved after
application of secondary treatment for municipal publicly owned
treatment works, defined at 40 CFR part 133, and best available
treatment technologies for non-municipal (industrial) discharges. EPA
has issued effluent limitation guidelines and standards that provide
minimum national requirements that industrial discharges must meet. See
40 CFR chapter I, subchapter N. Where an EPA-promulgated applicable
effluent limitations guideline is not available for an industry sector,
permit authorities can develop TBELs based on best professional
judgment. See CWA section 402(a)(1); 40 CFR 125.3(c)(2).
    Where TBELs are not sufficient to assure attainment of WQS,
including water quality standards in downstream jurisdictions, WQBELs
are required by the CWA. WQBELs are generally derived from the
applicable WQS.\52\ See CWA section 301(b)(1)(C); 40 CFR 122.4(a) and
(d). Congress intended that WQBELs in the NPDES program should derive
from all applicable WQS, including Federal standards promulgated by
EPA.
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    \52\ For pollutants for which an EPA-approved total maximum
daily load (TMDL) has been established under section 303(d) of the
CWA to restore impaired waters to meet WQS, the permit must include
WQBELs consistent with the assumptions and requirements of any
wasteload allocation assigned to the discharge as part of the TMDL.
See 40 CFR 122.44(d)(1)(vii)(B).
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i. NPDES Permits for Discharges to Waters With Baseline Water Quality
Standards
    As described in section II.B of this preamble, EPA is generally the
authority for issuing NPDES permits in Indian country unless and until
EPA authorizes a Tribe to administer the NPDES permitting program. 40
CFR 123.1(h); see also 58 FR 67966, 67973-74 (December 22, 1993). When
implementing baseline WQS in developing and issuing an NPDES permit,
EPA would follow the regulation at 40 CFR part 122, including 40 CFR
122.44(d), and would be guided by procedures in the NPDES Permit
Writers' Manual \53\ and the Technical Support Document for Water
Quality Based Toxics Control.\54\ EPA would ensure public participation
when EPA issues NPDES permits for discharges to Indian reservation
waters, consistent with the requirements at 40 CFR part 124, subparts A
and D. EPA also would consult with the appropriate Tribe when
developing and issuing NPDES permits for discharges to Indian
reservation waters to ensure that Tribal concerns and issues are
considered.
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    \53\ ``NPDES Permit Writers' Manual,'' EPA Office of Wastewater
Management, EPA-833-K-10-001, September 2010. Available at https://www.epa.gov/npdes/npdes-permit-writers-manual.
    \54\ ``Technical Support Document for Water Quality-Based Toxics
Control,'' EPA Office of Water, EPA/505/2-90-001, March 1991.
Available at https://www3.epa.gov/npdes/pubs/owm0264.pdf.
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ii. NPDES Permits for Upstream Facilities Discharging to Downstream
Waters With Baseline Standards
    Currently, there are no Tribes authorized to administer the NPDES
program.\55\ Tribes meeting the requirements of CWA section 518(e) may
seek authorization to administer the NPDES program. EPA regulations

that specify how a Tribe can seek authorization to administer the NPDES
program are contained in 40 CFR 123.31 through 123.34.
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    \55\ Currently, 47 states and one U.S. territory are authorized
to administer the NPDES program.
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    NPDES permits must ensure compliance with the applicable WQS of all
affected waters. See CWA sections 301(b)(1)(C) and 402(b)(1)(A); 40 CFR
122.4(a), (d) introductory text, and (d)(1). The proposed rule would
allow EPA to ensure that NPDES permits issued by authorized states,
Tribes, or territories \56\ for discharges to waters upstream from
Indian reservation waters comply with the final baseline WQS. If a
permitting authority failed to meet this requirement, EPA could use its
oversight authority of approved programs, which includes the authority
to review permits.
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    \56\ ``Authorized'' in this section refers to states, Tribes, or
territories that are authorized to administer the NPDES program.
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    Authorized states, territories or Tribes implementing EPA-
authorized NPDES programs must provide copies of proposed or draft
permits to EPA, except where permit review has been waived. 40 CFR
123.43(a)(2). EPA's right to review may not be waived for permits with
discharges which may affect the waters of a state other than the one in
which the discharge originates. 40 CFR 123.24(d)(2).
    EPA will coordinate with Tribes to ensure that Tribal concerns and
issues are considered when EPA is reviewing NPDES permits issued by
authorized states that may affect Indian reservation waters covered by
the baseline WQS. If EPA determines that a NPDES permit issued by an
authorized state would not ensure compliance with downstream baseline
WQS, EPA can object to the permit. See 40 CFR 123.44(c)(1), (7), and
(8). A state may not issue an NPDES permit over EPA's objection. CWA
section 402(d)(2), 40 CFR 122.4(c). If the state does not revise the
permit to meet EPA's objection, EPA may issue the permit. See CWA
section 402(d)(4); 40 CFR 123.44(h)(2) and (3). Tribes that have TAS
for WQS that may be affected by a state issued permit would also
receive notice under the public notice procedures of 40 CFR 124.10(c)
and have the opportunity to provide comments on the permit. EPA
encourages affected Tribes to raise any concerns with an upstream state
issued NPDES permit to both the state and EPA. EPA would follow
applicable requirements to ensure public participation and would
coordinate, as appropriate, with adjacent states and Tribes, and other
interested parties when implementing the standards.

B. Section 404 Permits for Discharges of Dredged or Fill Material

    Water quality standards are among the criteria considered in the
CWA section 404 program when reviewing permit requests for discharges
of dredged or fill material into waters of the U.S. Currently, CWA
section 404 permits for discharges must comply with all applicable
state WQS (including standards in a downstream jurisdiction) in effect
under the CWA. See CWA section 301(b)(1)(C); 40 CFR 230.10(b)(1) and
233.20(a). Section 404 of the CWA is jointly administered by the EPA
and the United States Army Corps of Engineers (the Corps) or by states
or Tribes with an EPA approved 404(g) program.
    CWA section 404 permits for dredged or fill activities must include
permit conditions to meet criteria set out in the section 404(b)(1)
Guidelines, see 40 CFR part 230, discussed further below. These
criteria are to include applicable WQS. The current section 404 program
regulations at 40 CFR 230.10(b)(1), require permits to ensure
compliance with any applicable state water quality standard. In this
proposal, EPA is proposing to amend 40 CFR 230.10(b)(1) to clarify
that, consistent with CWA section 301(b)(1)(C), CWA section 404 permits
need to ensure compliance with federally promulgated WQS--which would
include baseline WQS for Indian reservation waters--as well as with
state WQS.
i. CWA Section 404 Permits Issued by the Army Corps of Engineers
    The U.S. Army Corps of Engineers is the authority that issues CWA
section 404 permits for discharge of dredged or fill material into
``waters of the United States'' where no state or Tribe has assumed
responsibility for implementing the program. See CWA sections 404(a),
(g)-(i). Generally, the Corps works closely with both state and Tribal
governments to ensure that applicable WQS are met in CWA section 404
permitting actions.
    In evaluating a CWA section 404 permit application, the Corps
follows the requirements of 40 CFR part 230, commonly called the
``Section 404(b)(1) Guidelines'' after the CWA section authorizing
their development. Except as provided in CWA Section 404(b)(2), the
Corps may only issue a CWA section 404 permit if it determines that the
proposed disposal site for the discharge of dredged or fill material
complies with the 404(b)(1) Guidelines. The 404(b)(1) Guidelines
require, among other things, that no discharge of dredged or fill
material shall be permitted if it ``causes or contribute to a water
quality violation of any applicable state water quality standard.'' 40
CFR 230.10(b)(1).
    Because a Corps-issued section 404 permit is a ``Federal license or
permit'' for the discharge of dredged or fill material into ``waters of
the United States,'' a CWA section 401 certification from a state or
authorized Tribe is required. EPA provides section 401 certifications
on behalf of Tribes that do not have the authority to give CWA section
401 certification. Section 401 is discussed further in section VII.C of
this preamble.
    EPA is proposing to amend 40 CFR 230.10(b)(1) to read ``. . . any
applicable state water quality standard or federally promulgated water
quality standard.'' This would clarify that the CWA section 404 program
must protect all applicable water quality standards, including
federally promulgated standards. The Corps must forward public notices
for all CWA section 404 individual permit applications to EPA for its
discretionary review. See 33 CFR 325.3. If EPA determines that a
proposal for a CWA section 404 individual permit could cause or
contribute to a violation of the baseline WQS for Indian reservation
waters, or other criteria set out in the 404(b)(1) Guidelines, EPA may
provide its views to the Corps. EPA may prohibit the specification
(including the withdrawal of specification) of any defined area as a
disposal site and is further authorized to deny or restrict the use of
any defined area as a disposal site for dredged or fill material
whenever EPA determines, after notice and opportunity for public
hearing, that the discharge of such materials will have an unacceptable
adverse effect on municipal water supplies, shellfish beds and fishery
areas, wildlife, or recreational areas. See CWA section 404(c).
ii. CWA Section 404 Permits Issued by States or Tribes Who Have Assumed
the CWA Section 404 Program
    States or eligible Tribes may assume the CWA section 404 program,
as described in 40 CFR part 233. Currently, only three states (Florida,
Michigan, and New Jersey) and no Tribes have requested and received EPA
approval to administer the CWA section 404 program. State-issued CWA
section 404 permits for discharges of dredged or fill material upstream
or adjacent to Indian reservation waters covered by the baseline WQS
would need to ensure compliance with those standards. See 40 CFR
230.10(b)(1) and 233.20(a). Under CWA section 404(j), states or Tribes
who have assumed the CWA section 404 program must provide

copies of public notices for standard individual permits and for draft
general permits to EPA, except those for which permit review has been
waived. 40 CFR 233.51 and 233.13(b)(1). EPA's right to review may not
be waived for any permits for discharges with reasonable potential for
adverse impacts on waters of another state. 40 CFR 233.51(b)(3). EPA
proposes to amend this regulation to clarify that EPA's right to review
may not be waived for permits with reasonable potential to adversely
impact waters of another state or waters subject to federally
promulgated WQS.
    Under 40 CFR 233.50, the EPA Regional Administrator may object to a
state or Tribe-issued CWA section 404 permit if the permit would not
ensure compliance with the 404(b)(1) guidelines. A state or Tribe that
has assumed the CWA section 404 program may not issue a CWA section 404
permit unless EPA's objections or requirements for a permit condition
have been resolved. 33 U.S.C. 1344(j); 40 CFR 233.50(f). States,
Tribes, or any other interested person may request a public hearing on
the Regional Administrator's comments, objection, or permit
recommendations. 33 U.S.C. 1344(j); 40 CFR 233.50(d)-(f). The Regional
Administrator must hold a hearing whenever requested by the entity
proposing to issue the permit, or if warranted based on significant
public interest. 33 U.S.C. 1344(j); 40 CFR 233.50(g)-(i). If a state or
Tribe that has assumed CWA section 404 authority does not prepare a
permit revised to satisfy EPA's objection or requirement for a permit
condition, or deny the permit, EPA transfers processing of the permit
application to the Corps of Engineers. 33 U.S.C. 1344(j); 40 CFR
233.50(h)-(j). If a permit is transferred to the Corps of Engineers,
and EPA has concerns that the proposed permit would cause or contribute
to a violation of WQS, including these baseline WQS if codified, EPA
could provide comments to the Corps of Engineers.
    EPA intends to work closely with the appropriate Tribe in
determining whether a proposed CWA section 404 permit would comply with
the baseline WQS. EPA would follow applicable requirements regarding
public participation and intends to coordinate as appropriate with
adjacent states and Tribes, and other interested parties when
implementing the standards.

C. Section 401 Certifications

    Under section 401 of the CWA, a Federal agency may not issue a
permit or license to conduct any activity that may result in any
discharge into waters of the United States unless a section 401 water
quality certification is issued, or certification is waived.\57\ States
and authorized Tribes in which the discharge would originate or will
originate are generally responsible for issuing water quality
certifications.58 59 In cases where a state or Tribe does
not have authority, EPA is responsible for issuing certification. 33
U.S.C. 1341(a)(1). Some of the major Federal licenses and permits
subject to CWA section 401 include CWA section 402 permits issued by
EPA, CWA section 404 permits issued by the Corps, Federal Energy
Regulatory Commission (FERC) licenses for hydropower facilities and
natural gas pipelines, and Rivers and Harbors Act of 1899 section 9 and
10 permits.
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    \57\ EPA recently proposed revisions to the Clean Water Act
Section 401 Certification Rule located at 40 CFR part 121. See Clean
Water Act Section 401 Water Quality Certification Improvement Rule,
87 FR 35318 (June 9, 2022).
    \58\ ``Authorized tribes'' in this section refers to tribes that
are authorized to administer the CWA section 401 program due
treatment in a similar manner as a state. See 40 CFR 131.4(c).
    \59\ ``Authorized Tribes'' in this section refers to Tribes that
are authorized to administer the CWA section 401 program due
treatment in a similar manner as a state. See 40 CFR 131.4(c).
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    Tribes may receive TAS for section 401 when eligible for TAS to
administer the section 303(c) program for water quality standards. 40
CFR 131.4(c) (``Where EPA determines that a Tribe is eligible to the
same extent as a State for purposes of water quality standards, the
Tribe likewise is eligible to the same extent as a State for purposes
of certifications conducted under Clean Water Act section 401.''). To
date, 81 federally recognized Tribes (out of 574) have received TAS for
section 401 concurrently with obtaining TAS for section 303(c).\60\
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    \60\ EPA recently proposed a section 401-specific set of
requirements and procedures for tribes seeking TAS for purposes of
making section 401(a)(1) and 401(d) certification decisions and for
exercising their statutory rights as a ``neighboring jurisdiction''
under section 401(a)(2). 87 FR 35370, June 9, 2022. This proposed
approach would provide an alternate path for tribes wishing to
obtain TAS status only for section 401 and not also for section
303(c).
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i. CWA Section 401 Certification by Authorized Tribes
    In circumstances where a Tribe has obtained authority to administer
the CWA section 401 program due to treatment in a similar manner as a
state, the Tribe is authorized to issue certifications under CWA
section 401 (see 40 CFR 131.4(c)). In acting on a certification request
for a federally licensed or permitted activity which may result in a
discharge that originates in Indian reservation waters covered by the
baseline WQS, the Tribe would determine whether any such discharge will
comply with the applicable provisions of sections 301, 302, 303, 306,
and 307 of the CWA, which would encompass the baseline WQS. See 33
U.S.C. 1341(a)(1). In many cases, the applicable baseline WQS,
including the narrative criteria, would provide a basis for the Tribe
to make its determination on a certification request. In cases where
the Tribe needs to evaluate specific parameters, the Tribe could
request EPA to derive numeric translations for those parameters to aid
the Tribe in making its determination.
ii. CWA Section 401 Certification by EPA
    The EPA Administrator is the CWA section 401 certifying authority
for any activity requiring a Federal license or permit that may result
in a discharge into navigable waters in Indian country where Tribes
have not obtained authority to administer the CWA section 401 program.
See 33 U.S.C. 1341(a)(1). In these situations, if the proposed baseline
WQS are finalized, the Administrator would be able to rely on the
baseline WQS among other water quality requirements when deciding
whether to grant or deny section 401 certifications, or to develop
conditions. The Administrator must provide public notice of receipt of
a CWA section 401 certification request. See id.
iii. Authorized Tribes and CWA Section 401(a)(2)
    Under CWA section 401(a)(2), the Administrator provides notice to
states and authorized Tribes if the Administrator determines that a
discharge originating in another jurisdiction may affect their water
quality. See 33 U.S.C. 1341(a)(2). After receiving such notice from the
Administrator, authorized Tribes may raise objections to the issuance
of the license or permit if they determine that the discharge will
violate their water quality requirements.
    Under the CWA section 401(a)(2) process, the licensing or
permitting Federal agency must notify the Administrator upon receipt of
an application for a Federal license or permit and related
certification. Id. Within 30 days of receiving this notification from
the licensing or permitting Federal agency, the Administrator may
determine that a discharge originating in another jurisdiction may
affect the water quality of any other state or authorized Tribe. Id. If
the Administrator determines that a discharge may affect the water
quality of another state or authorized Tribe, the Administrator is
required to notify that

state or authorized Tribe, the licensing or permitting Federal agency,
and the applicant. Id. The state or authorized Tribe has a 60-day
opportunity after receiving the notice to determine whether the
discharge will violate any of its water quality requirements. If they
determine that the action will violate their water quality
requirements, they may raise an objection to the issuance of the
license or permit to EPA and the Federal agency in writing and request
a public hearing. See id. The Federal agency issuing the license or
permit must hold a public hearing if requested by the state or
authorized Tribe in these circumstances. Id. The licensing or
permitting Federal agency will consider the recommendations of the
state or authorized Tribe and the Administrator, as well as any
additional evidence presented at the hearing, and determine whether
additional conditions may be necessary to assure compliance with
applicable water quality requirements. See id. If imposition of
additional conditions cannot assure such compliance, the Federal agency
cannot issue the license or permit. Id.

D. Section 303(d) Impaired Water Listings and Total Maximum Daily Loads

    WQS provide the basis for identifying impaired waters (waters not
attaining the applicable standards) and developing TMDLs pursuant to
CWA section 303(d). Where applicable, the baseline WQS would provide
this basis. On September 26, 2016, EPA promulgated the final rule
``Treatment of Indian Tribes in a Similar Manner as States for Purposes
of Section 303(d) of the Clean Water Act.'' \61\ That rule establishes
regulatory procedures for eligible Tribes to apply for and obtain
authority to identify impaired waters on their reservations and to
establish TMDLs. 40 CFR 130.16. CWA section 303(d) provides for states
and authorized Tribes to: (1) develop lists of impaired waters (and
establish priority rankings for waters on the lists) and (2) establish
TMDLs for these waters.
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    \61\ 81 FR 65901, September 26, 2016.
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    By listing impaired waters, a state or authorized Tribe identifies
those waters in its territory that are not currently meeting applicable
WQS, and/or are not expected to meet applicable WQS, even after the
application of the TBELs required by CWA sections 301(b) and 306. 40
CFR 130.2(j). For purposes of determining whether a water body is
impaired and should be included on the CWA section 303(d) list, EPA
regulation requires states and authorized Tribes to assemble and
evaluate all existing and readily available water quality-related data
and information. 40 CFR 130.7(b)(5). These data and information may
include, for example, physical, chemical, and biological data,
including fish and shellfish tissue concentration data. EPA's
regulation includes a non-exhaustive list of water quality-related data
and information to be assembled and evaluated. Id. States and
authorized Tribes establish priorities for development of TMDLs for
waters on their CWA section 303(d) list considering the severity of the
pollution and the uses to be made of the waters. 40 CFR 130.7(b)(4).
States and authorized Tribes submit the list of impaired waters to EPA
for review and approval.
    Under the CWA, each state and authorized Tribe must, ``from time to
time,'' establish and submit TMDLs for pollutants causing impairments
in all the waters on its CWA section 303(d) list in accordance with the
priority ranking. CWA sections 303(d)(1)(C) and 303(d)(2). A TMDL is a
planning document intended to address impairment of waters. It includes
the calculation and allocation to point and nonpoint sources of the
maximum amount of a pollutant that a water body can receive and still
meet applicable WQS. TMDLs must be established at a level necessary to
implement the applicable WQS with seasonal variations and a margin of
safety which accounts for any lack of knowledge concerning the
relationship between effluent limitations and water quality. CWA
section 303(d)(1)(C). Where a TMDL makes allocation tradeoffs between
point and nonpoint sources, the TMDL record must also demonstrate
``reasonable assurance'' that the nonpoint source allocations will be
achieved. 40 CFR 130.7(c)(1) and 130.2(i). The state or authorized
Tribe submits the TMDL to EPA for review and approval. EPA notes that
CWA section 303(d) does not establish any new implementation
authorities for control of nonpoint source pollution, and nonpoint
source load allocations are primarily implemented through existing
state, local, Tribal, and other Federal programs.\62\
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    \62\ Memorandum: New Policies for Establishing and Implementing
TMDLs. See https://www3.epa.gov/npdes/pubs/owm0124.pdf.
---------------------------------------------------------------------------

    To date, no Tribe has applied for TAS for the CWA section 303(d)
program. EPA is providing technical assistance and is encouraging
Tribes to apply for TAS. When a Tribe lacks TAS authorization for CWA
section 303(d), EPA generally is the authority for establishing
impaired waters lists and TMDLs in Indian country. Where a Tribe is not
in a position to apply for and receive TAS for the CWA section 303(d)
program and is interested in having EPA develop lists or TMDLs for
particular waters, EPA will work with the Tribe to determine
appropriate next steps, consistent with available resources. In
instances where EPA establishes lists of impaired waters and TMDLs for
waters covered by baseline WQS or other WQS applicable in Indian
country, EPA would work closely with impacted Tribes and would provide
for full and meaningful public participation in both the listing and
TMDL development processes.

VIII. Effective Date of the Baseline Water Quality Standards

    EPA proposes to make a final rule effective for CWA purposes 120
days after it is published in the Federal Register. On that delayed
effective date, baseline WQS would therefore become the CWA-effective
WQS applicable to Indian reservation waters covered by a final rule. It
would apply to all Indian reservation waters except those waters
automatically excluded from coverage and those which the Regional
Administrator has approved exclusion from coverage as discussed in
sections IV.A and B of this preamble. EPA is proposing this delayed
effective date to allow adequate time for Tribes to coordinate with the
appropriate Regional Administrator regarding any possible exclusions
from coverage by baseline WQS.
    As mentioned in section IV.B of this preamble, a Tribe should
communicate with the Regional Administrator after this proposal is
published in the Federal Register, but no later than 90 days after the
final rule is published, regarding Indian reservation waters to be
excluded from coverage under the final baseline WQS rule. EPA expects
that the Regional Administrator would decide, informed by consultation
with the Tribe, no later than 120 days after the final rule is
published in the Federal Register whether to approve an exclusion from
coverage under the final baseline WQS.
    EPA invites comments on whether there should be a delayed effective
date and whether 120 days is an appropriate period of delay.
    EPA further expects that after the final rule goes into effect for
CWA purposes, the Regional Administrator generally would no longer
exclude additional Indian reservation waters from coverage by the
baseline WQS. EPA proposes this approach in the interest of promoting
regulatory certainty and avoiding the confusion that could potentially
result

after the effective date if waters are alternately covered or not
covered by baseline WQS depending on the timing of discussions between
Tribes and Regional Administrators about exclusions.
    EPA acknowledges, however, that limited circumstances may warrant
the ability of the Regional Administrator to exclude specific Indian
reservation waters from coverage after the baseline WQS are in effect.
EPA expects such circumstances would pertain to instances where a Tribe
communicates with the Regional Administrator about an exclusion after a
material change with respect to a Tribe's Indian reservation, for
example, when (1) a Tribe becomes newly federally recognized after the
effective date of a final rule and acquires Indian reservation lands or
(2) a Tribe that was duly approved by the Regional Administrator to be
excluded from coverage by baseline WQS later acquires new trust lands
outside the boundaries of a formal reservation after the effective date
of the final rule and wants to extend exclusion from coverage to the
newly acquired trust lands.
    EPA invites comments on this approach to limiting the exclusion of
Indian reservation waters from coverage by baseline WQS after the final
rule goes into effect for CWA purposes. Additionally, EPA invites
comments on whether the proposed regulatory text should be amended to
reflect the selected approach.

IX. Conditions Under Which Baseline Water Quality Standards Would No
Longer Apply

    Under the CWA, Congress gave states and authorized Tribes primary
responsibility for developing and adopting WQS for their respective
navigable waters (CWA sections 303(a) through (c)). Although EPA would
be promulgating baseline WQS for Indian reservation waters covered by a
final rule, federally recognized Indian Tribes retain the option to
seek TAS authority to administer the WQS program and adopt and submit
to EPA WQS consistent with CWA section 303(c) and EPA's implementing
regulation at 40 CFR part 131. As discussed earlier in this preamble,
EPA encourages and is committed to working with eligible Tribes to
obtain TAS to administer a WQS program and adopt new/revised WQS for
EPA approval.
    Once a Tribe obtains TAS and submits WQS for EPA action, EPA will
review and would approve those WQS if they meet the requirements of CWA
section 303(c) and implementing regulation at 40 CFR part 131. Once a
Tribe's new WQS are approved by EPA, in accordance with proposed 40 CFR
131.XX(a)(2), the Federal baseline WQS will no longer apply.
Specifically, that provision excludes from coverage of the rule
``Indian reservation waters . . . where EPA has approved the applicable
state or tribal water quality standards.'' Thus, a Tribe's WQS will go
into effect for CWA purposes upon EPA's approval of the standards.\63\
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    \63\ 40 CFR 131.21(c) provides that WQS adopted by an authorized
Tribe go into effect for CWA purposes upon EPA approval, ``unless
EPA has promulgated a more stringent water quality standard for the
State or Tribe that is in effect.'' Emphasis added. Where a more
stringent EPA-promulgated standard is in effect, 40 CFR 131.21(c)
goes on to provide that the less stringent Tribal WQS will go into
effect after EPA ``withdraws'' the more stringent Federal water
quality standard. Here, in accordance with the proposed scope of
coverage of the baseline WQS rule, 40 CFR 131.XX(a)(2) (excluding
from coverage of the rule ``Indian reservation waters . . . where
EPA has approved the applicable state or Tribal water quality
standards''), Tribal WQS will go into effect for CWA purposes upon
EPA approval regardless of stringency. Thus, because the baseline
WQS are no longer ``in effect'' for Indian reservation waters once
EPA has approved applicable Tribal WQS, there is no need to
``withdraw'' the baseline WQS for those waters.
---------------------------------------------------------------------------

    The public would have the opportunity to provide comment on the
Tribe's new/revised WQS submission and the exclusion of the relevant
Indian reservation waters from the baseline WQS rule upon EPA-approval
of those WQS during the Tribe's public comment period and hearing
associated with the proposed WQS submission. EPA would work with the
Tribe to ensure that it included a statement in its public notice that
exclusion from the scope of federally promulgated baseline WQS would be
a consequence of EPA's potential approval of the Tribe's new/revised
WQS. After approving an authorized Tribe's WQS, EPA would update the
public website that it intends to provide in the final rule to indicate
that the Tribe is no longer subject to the baseline WQS.
    EPA invites comment regarding when Federal baseline WQS would no
longer apply to the Tribe's waters subject to the Tribe's new WQS once
approved by EPA.

X. Economic Analysis

    The baseline WQS proposed in this rule would not themselves impose
costs on any entity. However, to best inform the public of the
potential impacts of this proposed rule, EPA has developed an analysis
of the potential control actions and costs that point source facilities
discharging into or upstream from waters covered by this rule may incur
as a result of implementing the baseline WQS. This analysis and the
methods and assumptions used in estimating costs are documented in
Economic Analysis for Potential Federal Baseline Water Quality
Standards for Indian Reservation Waters, which can be found in the
record for this rulemaking.
    The current regulatory framework is the set of currently applicable
requirements under the CWA without this proposed rule. These
requirements include TBELs and WQBELs in NPDES permits. For purposes of
this economic analysis, point source costs only reflect incremental
changes that are needed to comply with new or more stringent WQBELs
derived from the proposed baseline WQS.
    As discussed in section V.B of this preamble, the water quality
criteria in the proposed baseline WQS would consist of narrative water
quality criteria with binding procedures to translate the narrative
criteria into numeric values as needed for water quality regulatory
purposes. Although the procedures include several options to fit case-
by-case circumstances, for simplicity the economic analysis generally
relies on Option One discussed in section V.B. of this preamble: that
is, relying on EPA's national recommended CWA section 304(a) water
quality criteria to protect human health and aquatic life.
    Although the focus of the cost analysis is to estimate control
costs for point sources, attaining the proposed baseline WQS may depend
on additional actions such as nonpoint source controls. Nonpoint source
controls, whether required through a nonpoint source program or
implemented voluntarily, may lead to nonpoint sources incurring costs
as an indirect result of the proposed baseline WQS. Conversely,
implementing nonpoint source controls may relieve a portion of the
estimated indirect burden on and cost to point sources within the same
watershed. However, quantitative evaluation of the potential control
needs beyond those potentially addressed under the NPDES program is not
possible given the limited available data. Thus, EPA identified the
types of controls and costs that may be incurred for nonpoint sources
but did not develop nationwide nonpoint source cost estimates.
    EPA seeks comment on all aspects of the economic analysis
including, but not limited to, its assumptions relating to the current
regulatory framework, affected entities, implementation, and compliance
costs.

A. Identifying Affected Entities

    EPA used a multi-step method for evaluating the effect of the
proposed

baseline WQS applying to point sources. This method included the
following steps: identification of potentially affected permittees,
sample selection, extrapolation, determining the need for WQBELs
(reasonable potential analysis), and projecting effluent limits.
    EPA identified facilities discharging to Indian reservation waters
as well as facilities within a five-mile radius and discharging
upstream from Indian reservation waters. EPA focused its analysis on
the 57 major \64\ facilities identified; other facilities may also
incur costs and EPA invites comments from minor facilities that believe
they may be impacted. Seven of those facilities discharge directly to
Indian reservation waters, and all these are sewerage systems.\65\ Of
the 50 major facilities discharging upstream from Indian reservation
waters, 9 are industrial facilities, and 41 are sewerage systems. EPA
evaluated all 7 direct dischargers to Indian reservation waters and all
9 upstream industrial facilities and selected a sample of 10 upstream
sewerage systems with which to extrapolate for cost estimation
purposes.
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    \64\ EPA uses the designation of ``major'' for municipal
discharges of 1 million gallons per day (MGD) or more, or serving a
population of 10,000 or more, and industrial discharges with a major
rating code over a specified value based on the presence of toxics
and size of discharge flow (EPA, 2010). Minor dischargers typically
do not have monitoring requirements for toxic pollutants so data to
evaluate reasonable potential for these facilities is often limited.
In addition, these dischargers may not contribute significantly to
instream loads even if such pollutants were present in the effluent
from these facilities. Thus, the potential for minor facilities to
incur costs as a result of the potential criteria is low, and minor
facilities were not included in the analysis. However, EPA
acknowledges minor facilities with smaller operating budgets, such
as those managed by smaller communities, could have more difficulty
complying with any additional requirements than would major
facilities. EPA also has programs and tools available to assist
Tribes in these situations, such as the Lagoon Wastewater Treatment
Action Plan, and various infrastructure funding opportunities.
    \65\ Sewerage systems are those facilities both public and
private that collect and treat primarily domestic wastewaters. Some
EPA databases refer to sewerage systems as wastewater treatment
facilities (WWTFs), or wastewater treatment plants (WWTPs).
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B. Method for Estimating Costs

    EPA evaluated compliance scenarios and associated costs for the
sample facilities based on available information about the facilities,
their treatment systems, and current effluent quality. EPA determined
whether a facility would most likely achieve compliance through
optimization, pollution prevention and source control, additional
effluent treatment, or alternative compliance mechanisms such as WQS
variances or dilution credits. In some cases, available information did
not clearly point to one compliance alternative. In such cases, EPA
estimated a range of costs for compliance.
    EPA extrapolated costs to the remaining major upstream sewerage
systems from the sample based on facility flow. Most options include
one-time costs (e.g., costs to develop a pollution prevention program
or develop a WQS variance) and on-going or annual costs (e.g.,
financing the capital cost of constructing additional effluent
treatment, operation and maintenance [O&M] of treatment units,
maintaining a pollution prevention program).

C. Results

    Total cost estimates range from $15.51 million in annualized costs
over 20 years at a 3 percent discount rate (with $6.1 million in one-
time costs) to $30.54 in annualized costs over 20 years at a 3 percent
discount rate (with $1.23 million in one-time costs). Using a discount
rate of 7 percent over 20 years, total annualized costs range from
$18.94 million (also with $6.1 million in one-time costs) to $36.45
million (also with $1.23 million in one-time costs). Total one-time
costs are larger in the low estimate than in the high estimate because
one-time WQS variance costs are often used in lieu of annualized
effluent treatment costs for facility-specific low estimates for
certain pollutants. The potential costs presented in the Economic
Analysis for Potential Federal Baseline Water Quality Standards for
Indian Reservation Waters are a product of a series of assumptions and
subsequent analyses that are intended to be both conservative and as
comprehensive as possible. The document identifies uncertainties in the
analysis associated with data limitations, potential pollutant load
reductions achievable, and the methods dischargers would use to comply
with potential requirements and permit conditions that affect the
estimated costs.
    Promulgating baseline WQS for Indian reservation waters would
promote the implementation of pollution control measures and best
practices to help improve water quality and prevent future degradation
of Indian reservation waters, as well as potentially providing positive
water quality benefits to waters in adjacent jurisdictions. Improved
water quality for Indian reservation waters will benefit Tribes as well
as anyone who recreates on Indian reservation waters or values
environmental quality regardless of their current or anticipated uses
of Indian reservation waters.
    Although implementation of baseline WQS is likely to yield
significant benefits, estimating the dollar value of these improvements
to Tribes may not be feasible. First, Tribes often express the
difficulty of placing a monetary value on ecosystem services, given the
belief that these resources are sacred and beyond any earthly value.
Second, estimating the value of water quality improvements to visitors
of Indian reservations is challenging due to the lack of data on site-
specific visitation, use (e.g., recreational fishing) and valuation.
Therefore, EPA provided a qualitative description of benefits
categories that may stem from baseline WQS. These benefits include
those related to human health, ceremonial and subsistence harvests of
fish and shellfish, recreation, and other social welfare improvements.
EPA anticipates, however, that the abovementioned benefits will
ultimately outweigh the potential estimated incremental costs
associated with promulgation of this rule and that this rule will help
address the environmental challenges Tribes are currently facing.

XI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review; and Executive
Order 14094: Modernizing Regulatory Review

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to Executive Order 12866 review have been documented
in the docket. EPA prepared an analysis of the potential costs and
benefits associated with this action. This analysis, Economic Analysis
for Potential Federal Baseline Water Quality Standards for Indian
Reservations, is summarized in section XI of the preamble and is
available in the docket.

B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations at 40 CFR part 131 and
has assigned OMB control number 2040-0049.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. EPA-
promulgated standards are implemented through various water quality
control programs including the NPDES program, which limits discharges
to navigable waters except in compliance with an NPDES permit. The CWA
requires that all NPDES permits include any limits on discharges that
are necessary to meet applicable WQS. Thus, under the CWA, EPA's
promulgation of WQS establishes standards that a state or EPA
implements through the NPDES permit process. For this proposed rule, a
state (upstream dischargers) or EPA has discretion in developing
discharge limits, as needed to meet the standards. As a result of this
action, states and EPA will need to ensure that permits they issue
include any limitations on discharges necessary to comply with the
standards established in the final rule. In doing so, states or EPA
will have a number of choices associated with permit writing. While
implementation of the rule may ultimately result in new or revised
permit conditions for some dischargers, including small entities, EPA's
action, by itself, does not impose any of these requirements on small
entities. That is, the promulgated WQS are not self-implementing.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. The action imposes
no enforceable duty on any state, local, or Tribal governments or the
private sector.

E. Executive Order 13132 (Federalism)

    This action does not have federalism implications. EPA is proposing
to promulgate Federal baseline WQS for Indian reservation waters that
currently do not have CWA-effective WQS in place. However, it will not
impose substantial direct compliance costs on state or local
governments, nor will it preempt state law. Thus, Executive Order 13132
does not apply to this action.
    Consistent with EPA's policy to promote communications between EPA
and state and local governments, EPA nonetheless consulted with state
officials early in the process of developing the proposed action to
allow them to provide meaningful and timely input into its development.
On September 15, 2021, EPA consulted with state representatives from
the Association of Clean Water Administrators (ACWA) to hear their
initial views on the proposed regulatory changes. Participants raised
questions about EPA's implementation of baseline WQS under the CWA,
EPA's prioritization of Tribes obtaining TAS to administer their own
WQS programs, the ability of baseline WQS to be tailored to reflect
region or location-specific information, and how EPA would reconcile
differences between downstream WQS and upstream state WQS. EPA has
considered these comments in developing this proposal.
    In keeping with the spirit of E.O. 13132, and consistent with EPA's
policy to promote communications between EPA and state and local
governments, EPA specifically solicits comment on this proposed rule
from state and local officials. In particular, EPA requests comment on
any provision in this proposed rule that state officials believe would
impose an undue burden on state WQS programs.

F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)

    This action has Tribal implications, however it will neither impose
substantial direct compliance costs on federally recognized Tribal
governments, nor preempt Tribal law. Its primary effect will be to
establish Federal WQS for waters of federally recognized Tribes with
Indian reservations that currently do not have CWA-effective WQS. It
could also affect Tribes with Tribal WQS applicable under the CWA to
waters adjacent to such reservations. As mentioned above, EPA-
promulgated standards are implemented through various water quality
control programs including the NPDES program. Under the CWA, EPA's
promulgation of WQS establishes standards that a state or EPA
implements through the NPDES permit process; EPA implements the NPDES
program in the majority of Indian country waters that would be subject
to this rule. For this proposed rule, a state (upstream dischargers) or
EPA has discretion in developing discharge limits, as needed to meet
the standards. While implementation of the rule may ultimately result
in new or revised permit conditions for some dischargers, which could
include Tribal governments, EPA's promulgation action, by itself, does
not impose any of these requirements on dischargers. In any case, in
accordance with proposed 40 CFR 131.XX(b), EPA would conduct timely and
meaningful consultation with Tribes on any EPA permit actions where
Tribal interests may be affected.
    EPA consulted with Tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes early in the process
of developing this regulation to allow them to provide meaningful and
timely input into its development. EPA notified the leaders of all 574
federally recognized Tribes and held a 90-day Tribal consultation and
coordination period from June 15 through September 13, 2021, to inform
development of the proposed rule.
    The pre-proposal input that EPA received from Tribes during the
consultation and coordination process is documented in Summary Report
of Tribal Consultation and Coordination for the Proposed Rule: Federal
Baseline Water Quality Standards for Indian Reservations, available in
the docket for this proposed rule.

G. Executive Order 13045 (Protection of Children From Environmental
Health and Safety Risks)

    This action is not subject to Executive Order 13045 because it is
not economically significant as defined in E.O. 12866, and because EPA
does not believe the environmental health or safety risks addressed by
this action present a disproportionate risk to children.

H. Executive Order 13211 (Actions That Significantly Affect Energy
Supply, Distribution, or Use)

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action pertains to water quality
standards, which do not regulate the supply, distribution, or use of
energy.

I. National Technology Transfer and Advancement Act of 1995

    This proposed rulemaking does not involve technical standards.

J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)

    Executive Order 12898 (59 FR 7629, February 16, 1994) directs
Federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations (people of color and/or

Indigenous peoples) and low-income populations.
    Environmental impacts to Tribes may be considered under the
category of environmental justice in recognition that Tribal
communities may at times be among the communities disproportionately
impacted by environmental degradation. Where Tribal populations are
part of a larger non-Tribal community, many of the environmental
justice considerations are very similar to those of other vulnerable
and underserved populations. However, there is a unique set of
environmental justice considerations for Tribes, particularly where
Tribal members are exercising their cultural practices. For EPA, the
government-to-government relationship and trust responsibility that the
Federal Government has with federally recognized Tribal governments
further sets environmental justice issues for Tribes apart from those
in other communities.\66\
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    \66\ EPA recognizes our responsibility to work with both
federally recognized Tribes and all other indigenous peoples, per
the EPA Policy on Environmental Justice for Working with Federally
Recognized Tribes and Indigenous Peoples (2014) to address their EJ
concerns. As defined in the policy, Indigenous Peoples ``includes
state-recognized tribes; indigenous and tribal community-based
organizations; individual members of federally recognized tribes,
including those living on a different reservation or living outside
Indian country; individual members of state-recognized tribes;
Native Hawaiians; Native Pacific Islanders; and individual Native
Americans.'' Policy available at https://www.epa.gov/environmentaljustice/epa-policy-environmental-justice-working-federally-recognized-tribes-and.
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    EPA and other Federal agencies focus on resolving EJ issues
affecting Tribes through a unique combination of approaches which
center on (1) supporting the Tribes' sovereignty and exercise of their
own environmental authorities and (2) taking direct action on behalf of
the Tribes as part of the Federal Government's Tribal trust
responsibility. This proposed rule is relying on a combination of both
approaches, as discussed below.
    EPA believes that the human health or environmental conditions that
exist prior to this action result in or have the potential to result in
disproportionate and adverse human health or environmental effects on
Tribes. Many Tribes rely on aquatic and aquatic-dependent resources for
their lifeways. Attaining and sustaining clean water to protect human
health is essential to ensuring Tribes can continue to practice these
traditional lifeways. However, due to water quality issues, many Tribes
are unable to do so. The contamination of aquatic food resources above
levels safe to consume in desired quantities results in what is often
described as a suppression effect. An illustration of a suppression
effect is when the fish consumption rate for a given Tribe reflects a
current level of consumption that is artificially diminished relative
to the Tribe's heritage fish consumption rate.67 68 69
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    \67\ National Environmental Justice Advisory Council (NEJAC).
2001. Fish Consumption and Environmental Justice. https://www.epa.gov/sites/default/files/2015-02/documents/fish-consump-report_1102.pdf. p. vii. Accessed 10/20/2021.
    \68\ EPA. 2016. Idaho Tribal Fish Consumption Survey. https://www.epa.gov/columbiariver/idaho-tribal-fish-consumption-survey.
Accessed 1/26/2022.
    \69\ Northwest Indian Fisheries Commission, 2019. Opposition to
EPA's 2019 Actions to Roll Back Washington's Human Health Water
Quality Criteria, Docket No. EPA-HQ-OW-2015-0174. Available online
at https://www.regulations.gov/comment/EPA-HQ-OW-2015-0174-0970.
Accessed 10/18/21.
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    The negative impacts of suppression extend well beyond Tribal
health, leading to consequences for Tribal economies and cultures as
well. Given that aquatic resources often support a Tribe's cultural
self-determination and can be pivotal to the economic well-being of the
community, impacts to these resources can affect the very foundation of
Tribal social and political organization.\70\ Impairments of aquatic
resources may also impact a Tribe's ability to provide for present and
future generations and the maintenance of their lifeways. Water quality
impacts may stretch even further into a Tribe's sacred practices when
members can no longer rely on their waters for ceremonial uses.\71\
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    \70\ Ranco, D.J., O'Neill, C.A., Donatuto, J., & Harper, B.L.
2011. Environmental Justice, American Indians and the Cultural
Dilemma: Developing Environmental Management for Tribal Health and
Well-being. Environmental Justice 4;4, DOI: 10.1089/env.2010.0036.
    \71\ Martin, C., Simonds, V.W., Young, S.L., Doyle, J.,
Lefthand, M., Eggers, M.J. Our Relationship to Water and Experience
of Water Insecurity among Aps[aacute]alooke (Crow Indian) People,
Montana. Int. J. Environ. Res. and Public Health 2021, 18, 582.
https://doi.org/10.3390/ijerph18020582. Accessed 1/26/2022.
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    EPA believes that this action is likely to reduce existing
disproportionate and adverse effects on Indigenous peoples.
Specifically, the proposed rule provides several mechanisms for EPA, in
consultation with a Tribe, to address such issues. These mechanisms
include: flexibilities allowing for the consideration of Tribe-specific
fish consumption rates when translating narrative criteria into numeric
values; an opportunity for Tribes to protect culturally significant
waters by nominating them to be designated as outstanding national
resource waters; and the ability for EPA and Tribes to ensure the
protection of unique Tribal cultural and traditional uses while
implementing the baseline WQS. In short, implementing CWA-effective WQS
in Indian reservation waters would provide a strong basis for NPDES
permit limits and other controls that is not presently available to
protect such waters. Establishing the baseline WQS would also enhance
EPA's existing implementation in Indian country of section 401
certifications and other programs that rely on WQS in protecting Tribal
waters.
    EPA additionally identified and addressed environmental justice
concerns by considering how this proposed rulemaking also promotes
Tribal sovereignty over Tribes' water resources. The processes
established in the rule would foster the active participation of Tribes
in EPA's administration of baseline WQS. This participation should, in
turn, improve Tribal understanding of CWA programs and may even help
remove perceived barriers for some Tribes to obtain authority to
administer CWA TAS programs themselves.
    To achieve the benefits associated with a final rule, EPA
recognizes that some facilities may need to add pollution control
measures and incur additional compliance costs over time. This includes
an estimated 164 NPDES dischargers on Indian reservations potentially
covered by this rule and 274 NPDES dischargers located within 5 miles
upstream from those reservations.\72\ Most of these facilities are non-
Tribally owned. Nevertheless, approximately 118 tribally-owned
facilities could face added requirements. Given that this rule's
intention is to address disproportionate impacts currently faced by
Tribes, EPA realizes the importance of considering any potential
impacts Tribes may experience in association with implementation of a
final rule.
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    \72\ Facilities 5 miles upstream from areas that would be
covered by baseline WQS were considered in the rule's economic
analysis. However, facilities located greater than 5 miles upstream
may be affected by the rule depending on local factors considered
during the downstream protection analysis for a given facility.
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    Several Federal funding streams available to facilities that serve
Tribal communities in Indian country may help ensure that capital
improvement costs, which are estimated to be $1 million to $3 million
in aggregate, would not be passed on to ratepayers.\73\ The Federal
Tribal Infrastructure Task Force has developed a matrix summarizing the
various Federal assistance vehicles for water and wastewater treatment
services in Indian

country and Alaskan Native Villages.\74,75\
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    \73\ See EPA's Economic Analysis for Potential Federal Baseline
Water Quality Standards for Indian Reservation Waters.
    \74\ In 2007, the multi-agency Tribal Infrastructure Task Force
was created to develop and coordinate Federal activities in
delivering water infrastructure, wastewater infrastructure and solid
waste management services to tribal communities. EPA is a member of
the Task Force. See https://www.epa.gov/tribal/federal-infrastructure-task-force-improve-access-safe-drinking-water-and-basic-sanitation.
    \75\ Tribal Infrastructure Task Force. 2018. Tribal Resource
Directory Matrix of Federal Assistance for Water and Wastewater
Treatment Services. https://www.epa.gov/tribal/tribal-resource-directory-matrix-federal-assistance-water-and-wastewater-treatment-services.
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    Although there is funding for capital improvements, there is a
general lack of Federal funding sources to support operation and
maintenance (O&M) of such wastewater facilities. As a result, some
Tribal communities may need to contribute toward O&M needs, which are
estimated to range from approximately $50,000 to $500,000 in aggregate
per year. Tribal communities, along with other communities that receive
services, would need to fulfill these O&M needs with the resources and
expertise they have on hand or by imposing an additional burden on
ratepayers.
    EPA anticipates, however, that the abovementioned benefits will
ultimately outweigh these potential pass-through costs and that this
rule will help address the environmental justice challenges Tribes are
currently facing Tribes.
    For more information on how EPA provided meaningful participation
opportunities for Tribes in developing this proposal, please see
Section F. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments).

List of Subjects

40 CFR Part 131

    Environmental protection, Indians--lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.

40 CFR Parts 230 and 233

    Environmental protection, Administrative practice and procedure,
Indians--lands, Intergovernmental relations, Penalties, Reporting and
recordkeeping requirements, Water pollution control.

Michael S. Regan,
Administrator.

    For the reasons set forth in the preamble, the EPA proposes to
amend 40 CFR parts 131, 230, and 233 as follows:

PART 131--WATER QUALITY STANDARDS

0
1. The authority citation for part 131 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
2. Add Sec.  131.XX to read as follows:

Sec.  131.XX   Federal baseline water quality standards for Indian
reservation waters.

    (a) Scope. The Federal water quality standards in this section
apply to all waters of the United States in Indian country except:
    (1) Indian reservation waters for which EPA has promulgated other
Federal water quality standards;
    (2) Indian reservation waters where EPA has explicitly found that a
state has jurisdiction to adopt water quality standards or authorized a
Tribe to adopt water quality standards pursuant to Sec.  131.8, and
where EPA has approved the applicable state or Tribal water quality
standards;
    (3) Indian country waters on off-reservation allotments and off-
reservation dependent Indian communities; and
    (4) Indian reservation waters of Tribes for which the Regional
Administrator approves an exclusion from application of the standards
in this section, informed by consultation with the Tribe. EPA will
maintain a publicly available list of Indian reservation waters that
are excluded from coverage of the baseline water quality standards in
this section at [EPA website to be inserted in final rule].
    (b) Consultation with Tribes. In taking actions under this section,
the Regional Administrator will initiate Tribal consultation with the
Tribe(s) whose interests may be affected, consistent with applicable
EPA Tribal consultation policies.
    (c) Federal baseline designated uses. The following designated uses
apply to all Indian reservation waters specified in paragraph (a) of
this section except where paragraph (i) of this section applies:
    (1) Aquatic life. Protection and propagation of fish, shellfish,
and wildlife, which includes protection of human health of consumers of
fish, shellfish, and other aquatic life.
    (2) Primary contact recreation. Provides for recreation in and on
the water.
    (3) Cultural and traditional uses. Protection of cultural and
traditional uses of reservation waters.
    (d) Federal baseline water quality criteria--(1) Narrative
criteria. The following narrative criteria apply to all waters covered
by paragraph (a) of this section and designated for the uses in
paragraph (c) of this section or as revised per paragraph (i) of this
section.
    (i) All waters shall be free from toxic, radioactive, conventional,
non-conventional, deleterious or other polluting substances in amounts
that will prevent attainment of the designated uses specified in
paragraph (c) of this section and revised designated uses made under
paragraph (i) of this section, where appropriate;
    (ii) All waters shall be free from adverse impacts to the chemical,
physical or hydrologic, or biological integrity caused by pollutants or
pollution that prevent the attainment of applicable designated uses
specified in paragraph (c) of this section and revised designated uses
made under paragraph (i) of this section, where appropriate;
    (iii) All waters shall be free from substances attributable to
wastewater or other discharges where appropriate, that:
    (A) Settle to form objectionable deposits;
    (B) Float as debris, scum, oil, or other matter to form nuisances;
    (C) Produce objectionable color, odor, taste, or turbidity; or
    (D) Produce undesirable or nuisance aquatic life;
    (iv) All waters shall be free from conditions that would likely
jeopardize the continued existence of any threatened or endangered
species listed under the Federal Endangered Species Act or result in
the destruction or adverse modification of such species' critical
habitat; and
    (v) All waters shall maintain a level of water quality at their
pour points to downstream waters that provide for the attainment and
maintenance of the water quality standards of those waters, including
the waters of another state or a federally recognized Tribe.
    (2) Procedures to translate narrative criteria. The Regional
Administrator shall utilize one of the options set forth in this
paragraph (d)(2) to derive numeric translations of the narrative
criteria in paragraph (d)(1) of this section for all purposes under
Clean Water Act (CWA) section 303(c) for specific parameters as
necessary to protect the applicable designated uses in paragraph (c) of
this section or as revised per paragraph (i) of this section for
specific water bodies.
    (i) Translate the narrative criteria in paragraph (d)(1) of this
section using EPA's national recommended water quality criteria
published under section 304(a) of the CWA for parameters for which EPA
has section 304(a) criteria recommendations; or

    (ii) Where information and/or data are available that more
accurately reflect site-specific conditions, translate the narrative
criteria in paragraph (d)(1) of this section using EPA's national
recommended water quality criteria published under section 304(a) of
the CWA modified to reflect site-specific conditions and aquatic
communities. The modifications shall protect the applicable designated
uses in paragraph (c) of this section or as revised per paragraph (i)
of this section and be based on a sound scientific rationale, including
EPA published methodologies if available, and Indigenous Knowledge, as
appropriate, incorporating where relevant:
    (A) A fish consumption rate protective of Tribal fish consumers or
EPA's latest default fish consumption rate, if appropriate; or
    (B) Available ambient monitoring data reflecting site-specific
water chemistry inputs; or
    (C) Protective default water chemistry inputs; or
    (D) Other scientifically defensible assessments, for example,
guidance published by EPA regions or those related to Endangered
Species Act consultation, and Indigenous Knowledge, as appropriate; or
    (iii) Where appropriate, translate the narrative criteria in
paragraph (d)(1) of this section using water quality standards adopted
by the Tribe, or CWA-effective water quality standards applicable in an
adjacent or other relevant state(s) or Tribe(s), that are based on a
sound scientific rationale, reflect similar waterbody characteristics,
and ensure protection of the applicable designated use(s), taking into
consideration Indigenous Knowledge, as appropriate; or
    (iv) Where applicable, translate the narrative criteria in
paragraph (d)(1) of this section using provisions of 40 CFR part 132
(the Water Quality Guidance for the Great Lakes System) to ensure the
translations are as protective as required by 40 CFR part 132; or
    (v) Where paragraphs (d)(2)(i) through (iv) of this section are not
applicable, the Regional Administrator shall rely on existing CWA
implementation provisions in this part to derive numeric translations
of the narrative criteria in paragraph (d)(1) of this section where
necessary; and
    (vi) The Regional Administrator shall maintain and make available
to the public for informational purposes a list of numeric translations
of the narrative criteria derived per paragraph (d)(2) of this section
at [location of list to be provided in final rule].
    (e) Federal baseline antidegradation policy. (1) Existing instream
water uses and the level of water quality necessary to protect the
existing uses shall be maintained and protected.
    (2) Where the quality of the waters exceeds levels necessary to
support the protection and propagation of fish, shellfish, and wildlife
and recreation in and on the water, that quality shall be maintained
and protected unless the Regional Administrator finds with written
agreement from the Tribe, after full opportunity for intergovernmental
coordination and public involvement, that allowing lower water quality
is necessary to accommodate important economic or social development in
the area in which the waters are located. In allowing such degradation
or lower water quality, the Regional Administrator shall assure water
quality adequate to protect existing uses fully. Further, the Regional
Administrator shall assure that there shall be achieved the highest
statutory and regulatory requirements for all new and existing point
sources and all Tribal-regulated cost effective and reasonable best
management practices for nonpoint source control.
    (i) Before allowing any lowering of high water quality, pursuant to
paragraph (e)(2) of this section, the Regional Administrator shall find
with written agreement from the Tribe, after an analysis of
alternatives, that such a lowering is necessary to accommodate
important economic or social development in the area in which the
waters are located. The analysis of alternatives shall evaluate a range
of practicable alternatives that would prevent or lessen the
degradation associated with the proposed activity. When the analysis of
alternatives identifies one or more practicable alternatives, the
Regional Administrator shall only find with written agreement from the
Tribe, that a lowering is necessary if one such alternative is selected
for implementation.
    (ii) [Reserved]
    (3) Where high quality waters constitute an outstanding national
resource, such as waters of national and Tribal parks and wildlife
refuges and waters of exceptional recreational, ecological, or cultural
significance, that water quality shall be maintained and protected.
    (4) In those cases where potential water quality impairment
associated with a thermal discharge is involved, the decision to allow
such degradation shall be consistent with section 316 of the Clean
Water Act.
    (f) Federal baseline antidegradation implementation methods--(1)
Applicability. The antidegradation policy in paragraph (e) of this
section and the antidegradation implementation methods in this
paragraph (f) shall apply to all Indian reservation waters of the
United States included in paragraph (a) of this section.
    (i) The requirements of paragraphs (e) and (f) of this section
shall be followed when considering all requests to authorize new or
expanded regulated activities. Regulated activities include, but are
not limited to, any activity that requires a permit, license, or water
quality certification pursuant to sections 401, 402, and 404 of the
CWA.
    (ii) Antidegradation protections will be addressed in new or
reissued general permits authorized, implemented, or administered by
the Regional Administrator either at the time the Regional
Administrator develops and issues the general permit or upon review of
an applicant's request to be covered by a general permit. The Regional
Administrator will describe in writing in the permit fact sheet how the
general permit is consistent with the antidegradation requirements of
this paragraph (f)(1)(ii) and the antidegradation policy in paragraph
(e) of this section.
    (2) Existing instream use protection consistent with paragraph
(e)(1) of this section. For all waters, the Regional Administrator,
shall ensure that the level of water quality necessary to protect
existing uses is maintained. In order to achieve the requirement in
this paragraph (f)(2), the Regional Administrator shall consider
whether a regulated activity would lower the water quality to the
extent that it would no longer be sufficient to protect and maintain
the existing uses of that water body. If the lowering of water quality
would not protect and maintain the existing uses of that water body,
then the Regional Administrator would not allow the lowering of water
quality. Such consideration shall be based on all existing and readily
available water quality-related data and information, as well as any
additional water-quality related data and information submitted during
the public comment period for the authorization.
    (3) High quality water protection consistent with paragraph (e)(2)
of this section. In determining which waters will receive high quality
water protection consistent with paragraph (e)(2) of this section, the
Regional Administrator will identify high quality water on a parameter-
by-parameter basis. Each parameter that is determined to be high
quality shall be considered and evaluated independently, consistent
with this paragraph (f)(3), at the time an

applicant requests authorization to lower high water quality. A
parameter is high quality if its water quality level exceeds its water
quality criterion in paragraph (d) of this section. The Regional
Administrator shall ensure that no regulated activity that results in a
lowering of high water quality occurs unless the components outlined in
paragraph (f)(3)(i) of this section are available and the Regional
Administrator has made a finding with written agreement from the
relevant Tribe, consistent with paragraph (f)(3)(ii) of this section.
If the Tribe does not provide its written agreement, then the Regional
Administrator will maintain the current high water quality.
    (i) When determining whether to allow a lowering of high water
quality for one or more parameters that exceed levels necessary to
support the protection and propagation of fish, shellfish, and wildlife
and recreation in and on the water, the Tribe and Regional
Administrator will consider the following components and information:
    (A) Identifying information. Name of the applicant, a description
of the nature of the applicant's business and the pollutants to be
discharged, location of the discharge, the name of and any water
quality data for the receiving water body, daily maximum and average
flow to be discharged, and effluent characterization.
    (B) Analysis of alternatives. Identification and evaluation of a
range of practicable alternatives that would prevent or lessen the
degradation associated with the proposed activity to determine whether
the degradation of water quality is necessary. When the analysis of
alternatives identifies one or more practicable alternatives, the
Regional Administrator shall only find with written agreement from the
Tribe that a lowering of high water quality is necessary, consistent
with paragraph (e)(2)(ii) of this section, if one such alternative is
selected for implementation.
    (C) Socio-economic analysis. Identification and evaluation of the
social and economic development benefits to the area in which the
waters are located that will be foregone if the lowering of water
quality is not allowed. Along with the analysis of alternatives, the
socio-economic analysis is used to determine whether the lowering of
high water quality will accommodate important economic and social
development in the area in which the water is located. The ``area in
which the waters are located'' shall be determined on a case-by-case
basis and shall include all areas directly impacted by the proposed
regulated activity. Factors that must be considered in the socio-
economic analysis include, but are not limited to, the ecological and
economic importance of the affected waters, the importance of the
development to the affected community, and the socio-economic health of
the affected community as determined by appropriate analytical methods.
    (ii) The Regional Administrator shall make a finding that a
lowering of high water quality is necessary to accommodate important
social and economic development in the area in which the water is
located only if the information in paragraph (f)(3)(i) of this section
supports such a conclusion and the Tribe has provided written
agreement.
    (A) If the lowering of high water quality is necessary to
accommodate important social or economic development goals, and the
Tribe has provided its written agreement, the Regional Administrator
may allow a lowering of the high water quality as long as one of the
alternatives identified in paragraph (f)(3)(i)(B) of this section is
selected for implementation and incorporated into the authorization for
the activity. If no practicable alternative was identified by the
analysis of alternatives, but the lowering of high water quality will
accommodate important social or economic development and the Tribe has
provided written agreement, the Regional Administrator may allow the
lowering of high water quality. If a non-degrading practicable
alternative is selected, no lowering of the high water quality will
occur, and the Regional Administrator does not need to allow the
lowering.
    (B) In no event will the Regional Administrator allow water quality
to be lowered below the level required to fully protect existing and
designated uses.
    (C) To fulfill intergovernmental coordination, the Regional
Administrator shall notify local, state, and Federal agencies that
operate in the area impacted by the activity and request comment on the
preliminary decision to allow a lowering of water quality in a high
quality water based on whether it is necessary to accommodate important
social and economic development in the area of the waters impacted by
the activity.
    (D) To ensure the opportunity for public involvement, the Regional
Administrator shall provide public notice following EPA's own
procedures and request public comment on the preliminary decision to
allow a lowering of high water quality. In addition, the Regional
Administrator will rely on any existing public notification and input
procedures in place for the Tribe. The preliminary decision will
provide relevant information regarding the lowering of high water
quality, including the alternatives analysis, socio-economic analysis,
the estimated amount of assimilative capacity available in the water
body, and the estimated amount of assimilative capacity to be utilized
by the proposed activity.
    (E) The Regional Administrator's authorization of the regulated
activity shall serve as notice of the final decision on whether to
allow a lowering of high water quality.
    (F) Before allowing any degradation of high water quality, the
Regional Administrator shall identify point sources and Tribal-
regulated nonpoint sources that discharge to, or otherwise impact, the
receiving water. The Regional Administrator shall coordinate with other
agencies, as necessary, to assure compliance with the highest statutory
and regulatory requirements for all new and existing point sources and/
or all Tribal-regulated cost-effective and reasonable best management
practices for non-point source control. If compliance with the highest
statutory and regulatory requirements for all new and existing point
sources and all Tribal-regulated cost-effective and reasonable best
management practices for non-point sources cannot be assured, the
Regional Administrator will not allow a lowering of high water quality.
    (4) Outstanding national resource water protection consistent with
paragraph (e)(3) of this section. For Indian reservation waters
assigned as Outstanding National Resource Waters, the Regional
Administrator shall ensure, through the application of appropriate
controls on point and Tribal-regulated nonpoint pollutant sources, that
water quality is maintained and protected. No new or expanded regulated
discharges will be allowed to Outstanding National Resource Waters or
tributaries to such waters that would result in lower water quality
unless it is on a short term and temporary basis, consistent with
paragraph (f)(4)(v) of this section.
    (i) Any person or entity may nominate a specific Indian reservation
water with applicable baseline water quality standards under this
section to be assigned as an Outstanding National Resource Water. The
person or entity may transmit a written nomination to the Regional
Administrator and the Tribe, at any time, including why the Indian
reservation water warrants Outstanding National Resource Water
protection.

    (ii) The Regional Administrator shall determine with written
agreement from the Tribe whether the nominated water qualifies as an
Outstanding National Resource Water as described in paragraph (f)(4) of
this section.
    (iii) The Regional Administrator shall issue a public notice,
utilizing EPA's own procedures and any existing Tribal public notice
procedures, regarding the decision to assign a water as an Outstanding
National Resource Water.
    (iv) The Regional Administrator will maintain a comprehensive list
of the Indian reservation waters that have been assigned as Outstanding
National Resource Waters consistent with paragraph (e)(3) of this
section at [location of list to be provided in final rule].
    (v) The Regional Administrator may allow short-term, temporary
water quality degradation in an Outstanding National Resource Water
only if the short-term, temporary degradation is limited to the
shortest possible time, does not impact existing uses, and does not
alter the essential or special characteristics that make the Indian
reservation water an Outstanding National Resource Water. For purposes
of this section, short-term shall be considered any period that is
measured in the context of weeks to months, not years.
    (g) Policy on dilution allowances and mixing zones. In conjunction
with the issuance of CWA section 402 and 404 permits for discharges to
Indian reservation waters covered in paragraph (a) of this section:
    (1) Dilution allowances. Where the discharge has rapid and complete
mixing with the receiving water, a dilution allowance may be
established by the Regional Administrator at the time a CWA section 402
or section 404 permit is issued, renewed, or materially modified which
is in effect as long as the permit remains in effect.
    (2) Mixing zones. Where the discharge does not have rapid and
complete mixing with the receiving water, a mixing zone may be
established by the Regional Administrator at the time a CWA section 402
or section 404 permit is issued, renewed, or materially modified which
is in effect as long as the permit remains in effect.
    (i) Mixing zone means an allocated impact zone where water quality
criteria can be exceeded only if acutely toxic conditions are
prevented.
    (ii) Mixing zones shall not be authorized for a pollutant when the
receiving water does not meet water quality criteria for that
pollutant. Effluent limits established consistent with the assumptions
and requirements of a wasteload allocation for the discharge in an EPA-
approved or EPA-established total maximum daily load (TMDL) are
acceptable if otherwise in accordance with this section.
    (iii) Mixing zones shall not be authorized where they may fail to
protect the applicable designated uses in paragraph (c) of this section
or as revised per paragraph (i) of this section of the receiving water
body, as a whole, including, but not limited to, any of the following
scenarios:
    (A) Impairment to the integrity of the aquatic community, including
interference with successful spawning, egg incubation, rearing, or
passage of aquatic life.
    (B) Discharges into shellfish beds.
    (C) Lethality to aquatic life passing through the mixing zone.
    (D) Heat in the discharge that may cause thermal shock, lethality,
or loss of cold water habitat or attract aquatic life to a toxic
discharge.
    (E) Conditions that impede or prohibit recreation in or on the
water body.
    (iv) Mixing zones shall not be authorized for pathogens, pathogen
indicators, or bioaccumulative pollutants in the discharge, unless the
Regional Administrator can demonstrate, after consideration of the
effects of the mixing zone (including potential bioaccumulation within
specific trophic levels of resident species or other relevant factors),
that the designated use of the water body as a whole will be protected.
Bioaccumulative pollutant means a pollutant that is taken up and
retained by an aquatic organism from any surrounding media (e.g.,
water, food, sediment).
    (v) Mixing zones shall not overlap.
    (vi) Water quality within an authorized mixing zone is allowed to
exceed chronic water quality criteria for those parameters established
by the Regional Administrator through the CWA section 402 or section
404 permit. Acute water quality criteria may be exceeded for such
parameters within the zone of initial dilution inside the mixing zone.
Acute criteria shall be met as near to the point of discharge as
practicably attainable. Water quality criteria shall not be exceeded
outside of the boundary of a mixing zone as a result of the discharge
for which the mixing zone was authorized.
    (vii) Mixing zones shall be no larger than necessary, and the
concentrations of pollutants present shall be minimized. Mixing zones
shall meet the following restrictions:
    (A) Mixing zones in flowing waters shall not:
    (1) Extend in a downstream direction for a distance from the
discharge port(s) greater than 10 times the stream width plus the depth
of water over the discharge port(s);
    (2) Extend upstream for a distance of over 100 feet;
    (3) Utilize greater than 25% of the applicable critical low flow
when based on steady-state modeling;
    (4) Utilize greater than 25% of the flow when based on dynamic
modeling; nor
    (5) Occupy greater than 25% of the width of the water body.
    (B) Mixing zones in nonflowing waters shall not:
    (1) Exceed 10% of the volume of the water body;
    (2) Exceed 10% of the surface area of the water body (maximum
radial extent of the plume regardless of whether it reaches the
surface); nor
    (3) Extend beyond 15% of the width of the water body.
    (viii) Critical low flow means:
    (A) The 1Q10 (the lowest one-day average flow event expected to
occur once every ten years) or 1B3 (the lowest one-day average flow
event expected to occur once every three years) flow rate for acute
aquatic life criteria.
    (B) The 7Q10 (the lowest seven-consecutive-day average flow event
expected to occur once every ten years) or 4B3 (the lowest four-
consecutive-day average flow event expected to occur once every three
years) flow rate for chronic aquatic life criteria with a duration of
less than 30 days and human health criteria based on a short-term
toxicological effect.
    (C) The 30Q10 (the lowest thirty-consecutive-day average flow event
expected to occur once every ten years), 30Q5 (the lowest thirty-
consecutive-day average flow event expected to occur once every five
years), or 30B3 (the lowest thirty-consecutive-day average flow event
expected to occur once every three years) flow rate for chronic aquatic
life criteria with a duration of 30 days or longer.
    (D) The harmonic mean flow rate for human health criteria based on
lifetime exposure.
    (ix) The Regional Administrator shall take the following elements
into consideration when reviewing outfall designs as part of mixing
zone applicability determinations and CWA section 402 permit
development:
    (A) Promote rapid mixing to the extent practicable through careful
location and outfall design;
    (B) Promote use of diffusers to the extent practicable; and
    (C) Avoid shore-hugging plumes to the maximum extent practicable.

    (h) Authorization for NPDES permit compliance schedules. When
appropriate, the Regional Administrator may include a compliance
schedule for water quality-based effluent limits in National Pollutant
Discharge Elimination System (NPDES) permits consistent with 40 CFR
122.47, to permittees discharging to Indian reservation waters covered
by paragraph (a) of this section.
    (i) Federal administrative procedure to revise baseline designated
uses, add designated uses and establish water quality standards
variances. (1) The Regional Administrator may, upon the request of a
Tribe for its reservation waters, or based on the Regional
Administrator's identification, revise one or more designated uses in
paragraph (c) of this section and associated criteria, add additional
designated uses and associated criteria where such revisions will more
appropriately reflect the Tribe-specific use and value of waters
covered by paragraph (a) of this section, or establish water quality
standards variances that apply to specific parameter(s), water body/
waterbody segment(s), and permittee(s) covered by paragraph (a) of this
section, as specified in the water quality standards variance. Any such
designated use revision or addition, and associated criteria revisions,
shall be consistent with Sec. Sec.  131.10 and 131.11. Any such water
quality standards variance shall be consistent with Sec.  131.14.
    (2) For any revision or addition of a designated use and associated
criteria or water quality standards variance established under
paragraph (i)(1) of this section, the Regional Administrator shall
first provide for public notice of a public hearing on the proposed
revision or addition to the designated use(s) and associated criteria
and/or water quality standards variance at least 45 days in advance of
the public hearing and hold a 45-day public comment period on the
proposal, consistent with Sec.  131.20(b) and EPA's public
participation regulation at 40 CFR part 25. For any such proposal, the
Regional Administrator shall prepare and make available to the public
supporting documents identifying the specific surface water(s) affected
and include the justification for each proposed designated use revision
and/or water quality standards variance consistent with the
requirements of the CWA and EPA's implementing regulation, specifically
at Sec. Sec.  131.10 and 131.14, respectively. The documents shall be
made available to the public at least 30 days in advance of the date of
a public hearing consistent with 40 CFR 25.5.
    (3) Where the Regional Administrator makes a final decision to
revise the designated use and associated criteria, add a designated use
and associated criteria, or establish a water quality standards
variance, those changes become applicable for CWA purposes, consistent
with the requirements of the CWA and EPA's regulations including
Sec. Sec.  131.10 and 131.14. For water quality standards variances,
those CWA purposes are limited to purposes of developing NPDES permit
limits under section 301(b)(1)(C) of the CWA, where appropriate, and
issuing certification under section 401 of the CWA pursuant to Sec.
131.14(a)(3).
    (4) The Regional Administrator shall maintain and make available to
the public for informational purposes an updated list of designated use
revisions, additions, and the associated criteria, as well as water
quality standards variances established pursuant to this paragraph (i)
at [location of list to be provided in final rule]. The Regional
Administrator shall also maintain and make available to the public the
supporting documents for each designated use revision, addition, and
water quality standards variance.
    (5) Nothing in this paragraph (i) shall limit the Administrator's
authority to revise the designated uses in paragraph (a) of this
section or establish a water quality standards variance through
subsequent Federal rulemaking.
    (j) Applicability date. The Federal water quality standards in this
section will become the applicable water quality standards, effective
for CWA purposes, for the waters identified in paragraph (a) of this
section [DATE 120 DAYS AFTER THE FINAL RULE IS PUBLISHED IN THE FEDERAL
REGISTER].
    (k) EPA implementation of the Federal baseline water quality
standards of this section in waters of the Great Lakes system. In
making decisions under the CWA based on the water quality standards of
this section for waters located in the Great Lakes System, as defined
in 40 CFR 132.2, EPA will ensure that such decisions are consistent
with the requirements for water quality standards, antidegradation
policies, and implementation procedures for the Great Lakes System in
40 CFR part 132, as well as the water quality standards of this
section.

PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF
DISPOSAL SITES FOR DREDGED OR FILL MATERIAL

0
3. The authority citation for part 230 is revised to read as follows:

    Authority:  33 U.S.C. 1344(b) and 1361(a).

0
4. Amend Sec.  230.10 by revising paragraph (b)(1) to read as follows:

Sec.  230.10   Restrictions on discharge.

* * * * *
    (b) * * *
    (1) Causes or contributes, after consideration of disposal site
dilution and dispersion, to violations of any applicable State water
quality standard or federally promulgated water quality standard;
* * * * *

PART 233--404 STATE PROGRAM REGULATIONS

0
5. The authority citation for part 233 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
6. Amend Sec.  233.51 by revising paragraph (b)(3) to read as follows:

Sec.  233.51   Waiver of review.

* * * * *
    (b) * * *
    (3) Discharges with reasonable potential for adverse impacts on
waters of another State or on waters subject to federally promulgated
water quality standards;
* * * * *
[FR Doc. 2023-09311 Filed 5-4-23; 8:45 am]
BILLING CODE 6560-50-P