[Federal Register Volume 81, Number 189 (Thursday, September 29, 2016)]
[Proposed Rules]
[Pages 66900-66911]
[FR Doc No: 2016-23432]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2016-0405; FRL-9953-19-OW]
RIN 2040-AF62

Federal Baseline Water Quality Standards for Indian Reservations

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance notice of proposed rulemaking (ANPRM).

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SUMMARY: The Environmental Protection Agency (EPA) is considering
establishing federal baseline water quality standards (WQS) for certain
Indian reservation waters to narrow a long-standing gap in coverage of
Clean Water Act (CWA) protections. Currently, fewer than 50 of over 300
tribes with reservations have WQS effective under the CWA; most of the
reservations with existing CWA-effective WQS have obtained the coverage
through treatment in a manner similar to a state (TAS) under CWA
section 518. In advance of any potential rulemaking to address this gap
of CWA coverage, EPA specifically invites comments on whether to
establish such federal baseline WQS for Indian reservation waters that
do not yet have WQS under the CWA and, if so, what those WQS should be
and how they should be implemented. Federal baseline WQS would define
water quality goals for unprotected reservation waters and serve as the
foundation for CWA actions to protect human health and the environment.
Such WQS, if established, would apply only to those waters not already
covered by existing CWA-effective WQS and would be superseded by any
WQS subsequently adopted by an authorized tribe and approved by EPA
under CWA section 303(c).

DATES: Comments must be received on or before December 28, 2016. EPA
intends to hold two public webinars to discuss the ANPRM during the
public comment period. If you are interested, see EPA's Web site at
https://www.epa.gov/wqs-tech/advance-notice-proposed-rulemaking-federal-baseline-water-quality-standards-indian for the dates and times
of the webinars and instructions on how to register and participate.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2016-0405, at http://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. EPA may publish any comment
received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Mary Lou Soscia, Region 10,
Environmental Protection Agency, 805 SW. Broadway, Suite 500, Portland,
OR 97205; telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:

I. Who may be interested in this ANPRM?
II. Background
    A. What is the role of WQS under the CWA?
    B. What is the ``gap'' in WQS protection for waters on Indian
reservations?
    C. How has EPA tried to address the gap of CWA coverage
previously?
    D. Why is EPA publishing this ANPRM?
III. What would be included in the federal baseline WQS effort?
    A. To what waters would the potential federal baseline WQS
apply?
    B. Which waters should be excluded from the potential federal
baseline WQS?
    C. What designated uses should be considered in proposing
potential federal baseline WQS?
    D. What water quality criteria should be considered in proposing
potential federal baseline WQS?
    1. Narrative Water Quality Criteria
    2. Numeric Water Quality Criteria
    a. Aquatic Life Protection
    b. Human Health Protection
    E. What approaches should the potential federal baseline WQS
take with regard to antidegradation requirements?
    1. Antidegradation Policy
    2. Antidegradation Implementation Methods
    F. How could wetlands be addressed in the potential federal
baseline WQS?
    G. Which general provisions should be included in the potential
federal baseline WQS?
    1. Mixing Zone Authorizing Provision

    2. Compliance Schedule Authorizing Provision
    3. WQS variance authorizing provision
    H. Can tribes adopt WQS of their own?
IV. Statutory and Executive Order Review

I. Who may be interested in this ANPRM?

    Tribes, states, local governments, and citizens concerned with
water quality, and how water quality may be defined and protected on
Indian reservations, may be interested in this ANPRM. Entities
discharging pollutants to waters of the United States may be indirectly
affected by a rulemaking resulting from this ANPRM since WQS are used
to develop National Pollutant Discharge Elimination System (NPDES)
permit limits and serve as a basis for Clean Water Act (CWA) section
404 permit decisions. WQS are also the basis for assessing water
quality, identifying impaired waters and developing total maximum daily
loads (TMDLs) under CWA sections 305(b) and 303(d). Potentially
affected entities include:

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                                                        Examples of
                     Category                       potentially affected
                                                          entities
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States, Tribes, and Territories..................  Tribes currently
                                                    without CWA-
                                                    effective WQS and
                                                    tribes and states
                                                    near or bordering
                                                    Indian reservations
                                                    that do not have WQS
                                                    effective under the
                                                    CWA.
Federal Agencies.................................  Federal agencies with
                                                    projects or other
                                                    activities near
                                                    surface waters on
                                                    Indian reservations.
Industry.........................................  Industries
                                                    discharging
                                                    pollutants to
                                                    surface waters on
                                                    Indian reservations,
                                                    or that may affect
                                                    surface waters on
                                                    Indian reservations.
Municipalities...................................  Publicly-owned
                                                    treatment works and
                                                    stormwater outfalls
                                                    discharging
                                                    pollutants to
                                                    surface waters on
                                                    Indian reservations,
                                                    or that may affect
                                                    surface waters on
                                                    Indian reservations.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by a
potential federal baseline WQS rule resulting from this ANPRM. This
table lists the types of entities that EPA is now aware could
potentially be affected by such action. Other types of entities not
listed in the table could also be affected. If you have questions
regarding the effect of this action on a particular entity, please
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.

II. Background

A. What is the role of WQS under the CWA?

    The CWA--initially enacted as the Federal Water Pollution Control
Act Amendments of 1972 (Pub. L. 92-500) and subsequent amendments--
establishes the basic structure in place today for regulating pollutant
discharges into the waters of the United States. In the CWA, Congress
established the national objective to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's waters,''
and to achieve ``wherever attainable, an interim goal of water quality
that provides for the protection and propagation of fish, shellfish,
and wildlife and for recreation in and on the water'' (sections 101(a)
and 101(a)(2)).
    The CWA establishes the basis for the current WQS regulation and
program. Section 301 of the CWA provides that: ``the discharge of any
pollutant by any person shall be unlawful'' except in compliance with
specific requirements of Title III and IV of the CWA, including
industrial and municipal effluent limitations specified under CWA
section 304 and ``any more stringent limitation, including those
necessary to meet water quality standards, treatment standards, or
schedules of compliance established pursuant to any [s]tate law or
regulation.'' Section 303(c) of the CWA addresses the development of
state \1\ and authorized tribal WQS and provides for the following:
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    \1\ ``State'' in the CWA and this document refers to the 50
states, the District of Columbia, and the five United States
territories: The Commonwealth of Puerto Rico, the U.S. Virgin
Islands, Guam, American Samoa, and the Commonwealth of the Northern
Mariana Islands. ``Authorized tribe'' refers to those federally
recognized Indian tribes with authority to administer CWA WQS
program in a manner similar to a state under CWA Section 518.
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    (1) WQS shall consist of designated uses and water quality criteria
based upon such uses;
    (2) States and authorized tribes shall establish WQS considering
the following possible uses for their waters--protection and
propagation of fish, shellfish and wildlife, recreational purposes,
public water supply, agricultural and industrial water supplies,
navigation, and other uses;
    (3) State and authorized tribal WQS must protect public health or
welfare, enhance the quality of water, and serve the purposes of the
CWA;
    (4) States and authorized tribes must review their WQS at least
once every three years; and
    (5) EPA must review any new or revised state and authorized tribal
WQS, and is also required to promulgate federal WQS where EPA finds
that new or revised state or authorized tribal WQS are not consistent
with applicable requirements of the CWA or in situations where the
Administrator determines that federal WQS are necessary to meet the
requirements of the CWA.
    EPA established regulatory requirements in 1975,\2\ 1983,\3\
1991,\4\ 2000,\5\ and 2015 \6\ to implement CWA section 303(c), now
found in the WQS regulation at 40 CFR part 131. The WQS regulation
includes general provisions, requirements for establishing WQS,
procedures for review and revision of WQS, and the text of federal WQS
that EPA has promulgated for specific waters of the United States.
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    \2\ In 1975, EPA established the initial WQS regulation at 40
CFR 130.17. See 40 FR 55334, Nov. 20, 1975.
    \3\ In 1983, EPA established the core of the current WQS
regulation by strengthening the previous provisions and moving them
to a new 40 CFR part 131. See 54 FR 51400, November 8, 1983.
    \4\ In 1991, EPA added 40 CFR 131.7 and 131.8 to extend the
ability to participate in the WQS program to eligible Indian tribes,
pursuant to CWA section 518 which was enacted in 1987. See 56 FR
64893, December 12, 1991. See also EPA's revised interpretation of
CWA section 518 (81 FR 30183, May 16, 2016).
    \5\ In 2000, EPA promulgated 40 CFR 131.21(c), commonly known as
the ``Alaska Rule,'' to clarify that new and revised WQS adopted by
states and authorized tribes and submitted to EPA after May 30,
2000, become applicable WQS for CWA purposes only when approved by
EPA. See 65 FR 24641, April 27, 2000.
    \6\ In 2015, EPA updated six key areas of the WQS regulation to
provide a better-defined pathway for states and authorized tribes to
improve water quality, protect high quality waters, increase
transparency and enhance opportunities for meaningful public
engagement at the state, tribal and local levels. See 80 FR 51019,
August 21. 2015.
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    CWA-effective WQS are the foundation of the water quality-based
pollution control program mandated by the CWA and serve a dual purpose.
First, WQS define the goals for a water body by designating its uses,
setting criteria to protect those uses, and establishing
antidegradation requirements. Second, WQS are a basis for water
quality-based limits in NPDES permits (CWA sections 301(b)(1)(C) and
402), as the measure to assess whether waters are impaired (CWA section

303(d)(1)(A)), for assessing and reporting on water quality biannually
under CWA section 305(b), and as the target for a TMDL or ``pollution
budget'' to aid in the restoration of impaired waters (CWA section
303(d)(1)(C)). Under CWA section 401, WQS serve as a basis for
granting, granting with conditions, or denying state, authorized
tribal, or federal certifications for federal licenses or permits for
activities that may result in a discharge to waters covered by such
WQS.

B. What is the ``gap'' in WQS protection for waters on Indian
reservations?

    The federal government has recognized 567 tribes. Over 300 of these
tribes have reservation lands such as formal reservations, Pueblos, and
informal reservations (i.e., lands held in trust by the United States
for tribal governments that are not designated as formal reservations).
Under principles of federal law, states generally lack authority to
regulate on Indian reservations. See, e.g., Alaska v. Native Village of
Venetie Tribal Government, 522 U.S. 520, 527 n.1 (1998). EPA has
generally excluded such lands from state programs it has approved under
the CWA (and other environmental laws administered by EPA).\7\ Thus,
state WQS under EPA-authorized state CWA programs generally do not
apply on Indian reservations.
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    \7\ As noted in this section, there are a few instances where
EPA has approved state WQS for particular reservations based on
regulatory authority granted to the state in a separate federal law.
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    In the absence of applicable state or federal WQS, the principal
mechanism for establishing WQS for Indian reservation waters has been
through the authority provided by CWA section 518. That section
provides that, where a tribe is interested in administering the CWA WQS
program, the tribe must (a) become authorized and (b) adopt and submit
WQS to EPA for approval. To become authorized, the tribe must seek
eligibility for TAS--consistent with the requirements of CWA section
518(e) and 40 CFR 131.8. Section 518(e) of the CWA establishes
eligibility criteria for TAS, including requirements that the tribe
have a governing body carrying out substantial governmental duties and
powers; that the functions to be exercised by the tribe pertain to the
management and protection of water resources within the borders of an
Indian reservation; and that the tribe be reasonably expected to be
capable of carrying out the functions to be exercised in a manner
consistent with the terms and purposes of the CWA and applicable
regulations. In 1991, EPA issued a final rule to implement CWA section
518(e) for the WQS program. EPA's regulation at 40 CFR 131.8 uses the
eligibility criteria contained in CWA section 518 and establishes
procedures for EPA Regional Administrators to receive and take action
on tribal applications, so they are treated in a similar manner as a
state for CWA purposes. To adopt WQS and have them approved by EPA, an
authorized tribe must meet the same requirements applicable to states
in 40 CFR 131 subparts B and C.
    Most of the Indian reservations that are currently covered by CWA-
effective WQS involve authorized tribes that have developed and adopted
WQS that were approved by EPA (and made effective for CWA purposes).
Currently, 53 of the over 300 federally recognized tribes with
reservation lands have been authorized to administer a WQS program. Of
these authorized tribes, 42 have had their WQS approved by EPA.\8\
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    \8\ EPA maintains a current list of authorized tribes and tribal
WQS approvals at: https://www.epa.gov/wqs-tech/epa-approvals-tribal-water-quality-standards.
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    Another way to establish CWA-effective WQS for Indian reservation
waters is for EPA to promulgate federal WQS on a tribe-by-tribe,
reservation-by-reservation basis. EPA has promulgated such federal WQS
for one tribe, the Confederated Tribes of the Colville Reservation in
Washington. See 40 CFR 131.35 (54 FR 28622, July 6, 1989).\9\ There are
also uncommon circumstances where a separate federal law grants a
particular state the authority to regulate the environment on an Indian
reservation. Where EPA expressly approves such a state's authority and
the state's WQS for waters of an Indian reservation, such WQS will
apply under the CWA for those waters. To date, EPA has approved three
states (Washington, South Carolina, and Maine) to administer WQS on
reservations or parts of reservations of six Indian tribes.
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    \9\ When establishing federal WQS for waters of the United
States, EPA uses authority provided by the CWA to promulgate federal
WQS where the EPA Administrator determines that new or revised WQS
are necessary to meet the requirements of the CWA (see CWA section
303(c)(4)(B) and 40 CFR 131.22(b)).
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    For various reasons, many tribes with reservation lands have been
unable to apply, or have chosen not to apply, for TAS to administer a
WQS program under the CWA. Some tribes have lacked resources to develop
WQS to implement a WQS program while other tribes are focusing on
addressing other environmental priorities first. Some tribes may be
concerned that they cannot meet eligibility requirements, or that
applying for program authorization could raise jurisdictional or other
legal issues. Some tribes may have adopted water quality standards
under tribal law and believe that such water quality standards are
adequate to protect their water resources without being approved under
the CWA. However, a tribe must obtain TAS and EPA must approve their
water quality standards for those standards to be effective for CWA
purposes.
    Thus, except for the 42 authorized tribes with EPA-approved WQS in
effect, the one instance where EPA has promulgated federal WQS (for the
Colville Reservation), and six tribes for which EPA has approved states
(Washington, South Carolina, and Maine) to adopt WQS on reservations or
parts of reservations, there is a gap in water quality protection under
the CWA for waters on Indian reservations.

C. How has EPA tried to address the gap of CWA coverage previously?

    Between 1998 and 2003, EPA consulted widely with tribes, states,
and others on the possibility of EPA promulgating certain federal WQS
referred to as ``core WQS'' for Indian country waters without CWA-
effective WQS. On January 18, 2001, EPA Administrator Carol Browner
signed a proposed rule to promulgate the core WQS under CWA section
303(c). On January 22, 2001, EPA withdrew that proposal to allow
additional review. Eventually, EPA Administrator Christine Whitman
requested that EPA staff conduct additional outreach and consultation
with tribes and states and issue an ANPRM before proposing a core WQS
rule. Between 2001 and 2003, EPA began working on the ANPRM to invite
comments and views on a variety of broad, possible approaches for
establishing federal core WQS for waters in Indian country. Ultimately,
EPA did not issue the core WQS ANPRM, nor did it reissue the proposed
rule.

D. Why is EPA publishing this ANPRM?

    EPA is publishing this ANPRM to initiate an informed dialogue with
tribes, states, the public, and other stakeholders regarding whether
EPA should initiate a rulemaking to establish federal baseline WQS for
Indian reservations currently lacking such WQS and, if so, what
approach EPA should take regarding key policy issues raised by such a
rulemaking.
    Federal baseline WQS--which could include designated uses,
narrative and numeric criteria, antidegradation requirements, and other
WQS policies such as a mixing zone policy, a compliance schedule
authorizing

provision, and a WQS variance procedure--can provide an important tool
for tribes and EPA to use in making defensible, site-specific decisions
that protect reservation waters. The WQS being considered would provide
adequate coverage in each category, as a starting point. To be most
effective, CWA-effective WQS should be tailored to the individual
circumstances of the authorized tribe and its waters, likely through
the development of additional or refined criteria and uses. EPA's
preference is for tribes to utilize the TAS and WQS submittal process
to develop such tailored WQS. EPA remains committed to assisting tribes
in reaching this goal.
    The primary benefit of federal baseline WQS would be to ensure that
Indian reservation waters that are without CWA-effective WQS have
direct water quality-based protection under the CWA. Many of the CWA's
mechanisms for protecting water quality, such as water quality-based
effluent limits in NPDES discharge permits, rely on WQS as the
foundation for water quality-based decisions. Without applicable WQS,
these mechanisms may be limited.
    This ANPRM seeks input on key issues related to whether and how to
fill the gap of WQS coverage in Indian reservation waters. In
preparation for this ANPRM effort and consistent with EPA's Policy on
Consultation and Coordination with Indian tribes, from August through
November 2015 and from June through August 2016, EPA consulted and
coordinated with officials from more than 130 tribes from around the
United States. During that time, EPA received considerable input from
tribal officials, most of it positive and supportive of this effort.
EPA plans to continue consultation and coordination with tribal
officials to address some of the tribes' questions and concerns, most
of which center on implementation of any federal baseline WQS.
    As mentioned previously, WQS would inform permit decisions and
other implementation actions. Recognizing tribes potentially affected
by this effort may have limited resources and experience with WQS
development, administration, and implementation, EPA would work with
the affected tribal government(s) through opportunities for
coordination and consultation, as appropriate, in interpreting and
applying any final federal baseline WQS rule.
    EPA invites comment from all Indian tribes, especially tribes with
reservation land that do not have CWA-effective WQS and members of
those tribes, on whether establishing federal baseline WQS is an
appropriate step in advancing the federal trust responsibility to
federally recognized tribes, and enhancing tribal government
sovereignty through protection of reservation water quality. EPA is
interested also in any input regarding whether there are any concerns
that would warrant not including a particular tribe in any final
federal baseline WQS rule. While EPA is considering proposing to apply
these WQS to all Indian reservations without CWA-effective WQS, in
order to meet the goals of the CWA and better protect Indian
reservation waters, EPA invites comment on other options.
    This ANPRM is part of a broader effort to narrow gaps in CWA-
effective WQS coverage in Indian country. On May 16, 2016, EPA revised
the interpretation of CWA section 518 to streamline the process for
tribes to apply for TAS for CWA regulatory programs, including the WQS
program.\10\ At the same time as EPA considers--through this ANPRM--
whether and how to establish federal WQS for waters on Indian
reservations, EPA continues to encourage, work closely with, and
provide support to eligible tribes that wish to seek TAS and develop
their own WQS for approval under the CWA. EPA continues to recognize
that the appropriate place for a tribe to fully realize its unique
objectives for WQS continues to be through seeking TAS for the purpose
of administering WQS under the CWA.\11\ EPA remains committed to
helping tribes navigate the TAS and WQS adoption processes. In
practice, implementation of any final federal baseline WQS could also
provide individual tribes valuable understanding and experience in how
WQS function under the CWA to protect Indian reservation waters.
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    \10\ See 81 FR 30183 (May 16, 2016).
    \11\ Recognizing the importance of protecting waters on which
tribes rely, EPA is also preparing a final rule to establish
procedures for tribes to obtain TAS to administer the water quality
restoration provisions of CWA section 303(d) to identify impaired
waters on their reservations and to establish total maximum daily
loads, which serve as plans for attaining and maintaining applicable
WQS.
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    EPA expects that this reinterpretation of CWA section 518 will
better position tribes to seek TAS, establish their own WQS, and
facilitate tribal involvement in the protection of reservation water
quality as intended by Congress. To help facilitate the TAS application
and WQS adoption processes, EPA is developing new guidance, including
creating draft TAS applications and WQS language for use by eligible
tribes.\12\
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    \12\ ``Eligible tribes'' are those tribes that EPA has approved
for TAS under the requirements of CWA section 518(e) and 40 CFR
131.8.
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    EPA expects to continue to provide such support even if EPA were to
promulgate any final federal baseline WQS rule. In addition, as
described in sections III.A and III.B of this document, EPA would
expect that any final federal baseline WQS that may be put in place
would no longer apply to the waters on Indian reservations of a tribe
once the tribe has been authorized to administer a CWA WQS program and
the tribe's own WQS are in place and approved by EPA.

III. What would be included in the federal baseline WQS effort?

    EPA seeks input on which components of WQS to include in any
federal baseline WQS effort--if it determines that such an effort is
necessary--to ensure that the water quality of waters on Indian
reservations is protected under the CWA. The range of WQS components
that could be included are outlined in 40 CFR part 131, and include:
Designated uses, narrative and numeric criteria, antidegradation
requirements, and other WQS policies such as a mixing zone policy, a
compliance schedule authorizing provision, and a WQS variance
procedure. While EPA shares the ultimate goal of having WQS tailored to
the particular circumstances of each Indian reservation, given the
challenges of such an approach in a national federal rule, tailoring
opportunities may be limited. However, where flexibility under the CWA
and the national WQS regulation exists, any final federal baseline WQS
could allow for actions based on such WQS (e.g., NPDES permitting,
TMDLs) to reflect local considerations and consultation with the
affected tribe(s).
    EPA invites input on how EPA should approach establishing any
federal baseline WQS. For instance, should EPA establish one set of WQS
that apply universally to the reservation waters covered by any final
federal baseline WQS rule? Alternatively, should EPA pursue
establishing federal baseline WQS that offer limited tailoring
opportunities by establishing cultural and traditional designated uses
that account for unique practices observed by particular tribes (see
section III.C of this document), criteria that account for higher fish
consumption patterns of particular tribes by establishing human health
criteria using a limited range of fish consumption rates (see section
III.D

of this document), and establish greater protection for high quality
and Outstanding National Resource Waters of particular importance to
the tribe through the antidegradation provisions (see section III.E of
this document)? These components are further discussed below.
    In addition, EPA seeks input on whether and how to make any
potential federal baseline WQS consistent with the requirements of 40
CFR part 132. In 1995, EPA published a final rule at 40 CFR part 132,
60 FR 15366 (March 23, 1995) that implements the CWA section 118
requirement for EPA to publish water quality guidance on minimum WQS,
including antidegradation policies, and implementation procedures for
the Great Lakes System, and that states and authorized tribes adopt
WQS, antidegradation policies, and implementation procedures consistent
with the guidance. EPA invites comments on whether any potential
federal baseline WQS should ensure that decisions for reservation
waters in the Great Lakes System (as defined in 40 CFR 132.2) are
consistent with the WQS, antidegradation policies, and implementation
procedures for the Great Lakes System in 40 CFR part 132, in addition
to any final federal baseline WQS, even in cases where tribes have not
adopted WQS under CWA sections 303(c) and 518.

A. To what waters would the potential federal baseline WQS apply?

    In this ANPRM, EPA invites comment on the potential scope of any
federal baseline WQS. Such WQS could apply to any or all waters of the
United States that are, or after the effective date of a final baseline
WQS rule become, located within the exterior boundaries of an Indian
reservation except: (1) Indian reservation waters for which EPA has
promulgated other federal WQS; and (2) Indian reservation waters where
EPA has expressly found that a tribe or state has jurisdiction to adopt
WQS, and tribal or state WQS are effective under the CWA. Consistent
with EPA's long-standing approach, waters of Indian reservations would
include waters located within the boundaries of Pueblos as well as
lands held in trust by the United States for an Indian tribe even if
the land has not been formally designated as a reservation. See, e.g.,
56 FR 64881 (December 12, 1991); see also Oklahoma Tax Commission v.
Citizen Band Potawatomi Indian Tribe of Oklahoma, 505 U.S. 505, 511
(1991); HRI v. EPA 198 F.3d 1224 (10th Cir. 2000); Arizona Public
Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000).
    Indian reservations are a subset of the broader geographic area
that comprises Indian country as a whole. Indian country is defined at
18 U.S.C. 1151 as: (a) All land within the limits of any Indian
reservation under the jurisdiction of the United States Government,
notwithstanding the issuance of any patent, and, including rights-of-
way running through the reservation; (b) all dependent Indian
communities within the borders of the United States whether within the
original or subsequently acquired territory thereof, and whether within
or without the limits of a state; and (c) all Indian allotments, the
Indian titles to which have not been extinguished, including rights-of-
way running through the same.

B. Which waters should be excluded from the potential federal baseline
WQS?

    The objective of any federal baseline WQS would be to address the
gap in CWA-effective WQS coverage, but it may be appropriate to exclude
from any such WQS areas certain waters where other tribal or
reservation-specific CWA WQS apply. EPA invites comments on whether
federal baseline WQS, if promulgated, should automatically not apply to
the following categories of Indian reservation waters:

--Indian Reservation waters for which EPA has promulgated other,
reservation-specific federal WQS. Currently, EPA has promulgated WQS
for only one Indian reservation, the reservation of the Confederated
Tribes of the Colville Reservation (see 40 CFR 131.35).
--Indian reservation waters where EPA has explicitly found that a tribe
or state has jurisdiction to adopt WQS, and the tribe or state has
adopted WQS that are in effect for CWA purposes in accordance with
EPA's WQS regulation at 40 CFR part 131. Currently only 42 tribes have
such WQS, but more could reach this status in the future. There are
also three instances where EPA has approved states to adopt WQS on
reservations or parts of reservations of six Indian tribes.

    EPA invites comments on the automatic exclusions described in this
section and on whether other automatic exclusions should be considered.
In addition, EPA invites comment on whether the application of any
exclusion to tribes should be immediate once the Regional Administrator
or appropriate delegate approves an authorized tribe's own WQS for CWA
purposes.

C. What designated uses should be considered in proposing potential
federal baseline WQS?

    The first key component of WQS is designated uses. EPA's WQS
regulation requires states, and authorized tribes, as well as EPA per
40 CFR 131.22(c), to specify goals and expectations for how each water
body is to be used. Designated uses communicate to the public a state
or authorized tribe's environmental management objectives and water
quality goals for its waters. Clear and accurate designated uses are
essential in maintaining the actions necessary to restore and protect
water quality and meet the requirements of the CWA. EPA's implementing
regulation distinguishes between two broad categories of designated
uses: Uses specified in CWA section 101(a)(2) and a non-101(a)(2) use.
The states and authorized tribes must take these uses into
consideration when designating waters. EPA invites comments on which
designated uses should be established in any federal baseline WQS and
whether and how to differentiate designated uses for different waters
on Indian reservations that would be covered by such federal baseline
WQS.
    For the federal baseline WQS effort, EPA is considering including
designated uses consistent with the uses specified in section 101(a)(2)
of the CWA. These uses provide for the protection and propagation of
fish, shellfish, and wildlife, and recreation in and on the water,
including the protection of human health when consuming fish,
shellfish, and other aquatic life. Since 1983, EPA's WQS regulation has
interpreted and implemented the CWA through requirements that WQS
protect these CWA section 101(a)(2) uses unless states and authorized
tribes, or EPA by extension, demonstrate that those uses are infeasible
to attain through a use attainability analysis consistent with EPA's
regulation at 40 CFR 131.10, effectively creating a rebuttable
presumption of attainability. Where such uses do not appropriately
reflect tribe-specific or site-specific conditions, EPA, in
consultation with tribes, could subsequently modify, sub-categorize, or
remove such designated uses consistent with EPA's WQS requirements. For
more information on CWA section 101(a)(2) uses, please refer to EPA's
Water Quality Standards Handbook, Chapter 2 Designated Uses.\13\ EPA
requests comment on such an approach and any other alternative
approach.
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    \13\ https://www.epa.gov/sites/production/files/2014-10/documents/handbook-chapter2.pdf.
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    During the tribal consultation process, many tribes stressed the
value and

importance of protecting water quality at levels appropriate for use in
various cultural and traditional activities of individual tribes. EPA
does not anticipate proposing to specifically define what cultural and
traditional uses are for purposes of this effort, because they can
include a wide variety of uses specific to the ceremonies and
traditions of each tribe and require different protections. EPA
anticipates that, in some cases, the cultural and traditional uses
would be adequately protected under the categories of the CWA section
101(a)(2) uses. For example, full body immersion in the water and other
fishing-related cultural or traditional practices may, in some
instances, be covered by the CWA section 101(a)(2) uses. However, such
practices that require protection of aquatic plants used for basket
weaving or water quality for ceremonial washings (uses that tribes
suggested be protected during the 2015 consultation and coordination
effort) may not be adequately covered by the CWA section 101(a)(2)
uses.
    Accordingly, EPA seeks input on whether, and if so, how to include
protection of specific or general cultural and traditional uses
explicitly within the scope of the federal baseline WQS. Such a use
designation would be accompanied by water quality criteria sufficient
to protect the cultural and traditional uses of the tribe's reservation
waters. To protect these types of uses, EPA could rely on a combination
of numeric and narrative criteria. EPA, in consultation with tribes,
could determine at the implementation stage which criteria are
applicable to protect the cultural or traditional uses specific to a
tribe's reservation waters. Tribal treaty or other reserved rights to
fish, hunt, and/or gather on Indian reservations could generally be
encompassed by this designated use, to the extent they are not
encompassed by the other CWA section 101(a)(2) designated uses (e.g., a
designated use of ``fishing'' or ``fish harvesting'' could encompass
fish and shellfish consumption, and could also encompass sustenance or
subsistence fish and shellfish consumption, depending on the reserved
right). EPA seeks comment on the express inclusion of language
designating cultural and traditional uses in the potential federal
baseline WQS and any desired impacts of such a designation.
    EPA could also propose to designate a public water supply use for
Indian reservation waters covered by the potential federal baseline
WQS. A public water supply use is a use specified in CWA section
303(c)(2)(A), and is considered by EPA to be a non-101(a)(2) use, which
means that it is unrelated to the protection or propagation of fish,
shellfish, wildlife or recreation in or on the water. This designation
reflects the requirements in CWA section 303(c) and EPA's implementing
regulation at 40 CFR 131.10(a) that when states or authorized tribes,
and EPA per 40 CFR 131.22(c), are establishing WQS, the waters' use and
value for public water supplies shall be taken into consideration, and
that WQS protect the public health or welfare, enhance the quality of
water, and serve the purposes of the CWA. Inclusion of a public water
supply use designation could help to reinforce EPA's objective to
establish baseline human health goals that serve as the basis for CWA
protection. Many states have established such a use on large numbers of
their water bodies, and EPA anticipates that many tribes will similarly
desire such a use to be established on some or most of their waters to
help ensure safe drinking water. On the other hand, designating a
public water supply use for Indian reservation waters could result in a
designation on a water body where such a use is not attainable or
otherwise not appropriate. In such instances, EPA could provide a
mechanism for the tribe or other parties to provide information for EPA
to consider in deciding whether to remove that designation.\14\ For
more information on non-101(a)(2) uses, please refer to EPA's Water
Quality Standards Handbook, Chapter 2 Designated Uses.
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    \14\ EPA would remove the designation in a manner similar to how
states and authorized tribes can remove such non-101(a)(2) uses in
accordance with EPA's regulation at 40 CFR 131.10(k)(3).
---------------------------------------------------------------------------

    EPA is seeking comment on whether the public water supply use is an
applicable or suitable use that should be proposed for Indian
reservation waters. Options could include not promulgating this use at
all for Indian reservation waters, promulgating for all Indian
reservation waters, promulgating for some Indian reservation waters, or
not promulgating the use for those specific Indian reservation waters
identified as unsuitable for such a use prior to finalization of any
potential federal baseline WQS rule.
    As noted previously, EPA recognizes that it is possible that
designated uses set forth in any federal baseline WQS may not
ultimately reflect tribe-specific or site-specific conditions or the
actual attainability of certain uses. In such circumstances, EPA could
subsequently modify, sub-categorize, or remove designated uses that
would be established in the potential federal baseline WQS or add
additional uses in order to provide limited tailoring of the federal
baseline designated uses. This could be accomplished through subsequent
federal promulgations consistent with EPA's regulation at 40 CFR part
131.\15\ In undertaking any such modification or tailoring, EPA would
expect to work in consultation with tribes to assemble information to
develop requisite analyses required by the regulation. EPA could also
consider ways to streamline any subsequent federal rulemakings,
including ``batching'' designated use modifications that pertain to
multiple tribes and delegating such rulemaking authority to the EPA
Regional Administrators. EPA solicits comment on this potential
approach to appropriately modifying or tailoring any potential federal
baseline WQS to address site-specific issues.
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    \15\ Consistent with 40 CFR 131.10, (1) a revision to a use
specified in CWA section 101(a)(2) or a sub-category of such a use
requires a use attainability analysis and identification of the
highest attainable use and associated criteria; and (2) a revision
to a non-101(a)(2) use, such as public water supply, requires a use
and value demonstration as described in 40 CFR 131.10(a).
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    EPA continues to encourage tribes who are interested in
establishing WQS that reflect site-specific, tailored designated uses
better suited to particular Indian reservations to obtain TAS for WQS
and adopt their own WQS for EPA review and approval.

D. What water quality criteria should be considered in proposing
potential federal baseline WQS?

    EPA's current WQS regulation at 40 CFR 131.11 requires adoption of
water quality criteria that protect designated uses. Such criteria must
be based on sound scientific rationale, must contain sufficient
parameters to protect the designated use, and may be expressed in
either narrative or numeric form. (See 40 CFR 131.11(a) and (b).) In
adopting water quality criteria, states and authorized tribes should
establish numeric values based on CWA section 304(a) criteria, CWA
section 304(a) criteria modified to reflect site-specific conditions,
or other scientifically defensible methods. (See 40 CFR 131.11(b).) As
discussed more fully below, CWA section 303(c)(2)(B) requires states
and authorized tribes to adopt numeric criteria for priority toxic
pollutants for which EPA has developed CWA section 304(a) recommended
criteria. CWA section 304(a)(1) requires EPA to develop and publish,
and from time to time update, criteria for water quality accurately
reflecting the latest

scientific knowledge regarding concentrations of specific chemicals or
levels of parameters in water that protect aquatic life and human
health. Water quality criteria recommendations developed under CWA
section 304(a)(1) are based on sound scientific rationale, are
protective of the designated use(s), and are based solely on data and
scientific judgments on the relationship between pollutant
concentrations and environmental and human health effects. CWA section
304(a)(1) criteria do not reflect consideration of economic impacts or
the technological feasibility of meeting the chemical concentrations in
ambient water. EPA's regulation at 40 CFR 131.11(b)(2) provides that
states and authorized tribes should also establish narrative criteria
where numeric criteria cannot be determined or to supplement numeric
criteria. Per 40 CFR 131.22(c), these requirements apply equally to EPA
when promulgating federal WQS. Narrative criteria are descriptions of
the conditions necessary to attain a water body's designated use, while
numeric criteria are values expressed as levels, concentrations,
toxicity units or other numbers that quantitatively define the desired
condition of the water body.\16\ Most state and authorized tribal WQS
include both narrative and numeric water quality criteria.
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    \16\ See EPA's Water Quality Standards Handbook, Chapter 3,
section 3.5.2. https://www.epa.gov/sites/production/files/2014-10/documents/handbook-chapter3.pdf.
---------------------------------------------------------------------------

1. Narrative Water Quality Criteria
    In considering potential approaches to narrative criteria that
could be included in any proposed federal baseline WQS, EPA could look
to the Quality Criteria for Water, 1986 (``Gold Book''). EPA could
establish a narrative water quality criterion that provides that waters
must be free from toxic, radioactive, conventional, non-conventional,
deleterious, or other polluting substances in amounts that will prevent
attainment of the designated uses specified above. EPA could also
establish narrative criteria that provide that all waters must be free
from substances attributable to wastewater or other dischargers that:
(1) Settle to form objectionable deposits; (2) float as debris, scum,
oil, or other matter to form nuisances; (3) produce objectionable
color, odor, taste, or turbidity; (4) injure or are toxic or produce
adverse physiological responses in humans, animals or plants; and/or,
(5) produce undesirable or nuisance aquatic life, including excess
algae. Such narrative criteria would be considered when identifying the
level of protection sufficient to protect any designated uses
established in federal baseline WQS, as outlined in section III.C and
consistent with 40 CFR 122.44(d), when making WQS implementation
decisions. EPA notes that all states have narrative criteria for the
protection of designated uses.
    EPA could also include narrative criteria that are specifically
intended to protect a designated use that includes water-based
activities essential to maintaining cultural and traditional practices
that might not be adequately covered by the numeric criteria included
in the federal baseline WQS. For example, during consultation with EPA,
some tribes expressed an interest in protecting wild rice for
consumption and reeds for basket weaving. To help better protect those
resources, EPA could include a narrative criterion that provides that
water quality associated with certain designated uses be free from
pollutants in amounts that prevent the growth of aquatic plants
regularly harvested by tribes for cultural or traditional activities.
    EPA seeks input on whether to include narrative criteria in any
proposed federal baseline WQS and, if so, how best to approach the
development of such criteria. Specifically, EPA solicits comment on the
inclusion of the narrative criteria discussed above, particularly those
intended to protect cultural and traditional uses, as well as other
suggestions regarding how to protect a tribe's cultural and traditional
practices.
    In addition, EPA invites comments on how to establish a narrative
criterion specifically intended for the protection of downstream
waters. Pursuant to CWA sections 303 and 101(a), the federal regulation
at 40 CFR 131.10(b) requires that ``In designating uses of a water body
and the appropriate criteria for those uses, the [s]tate shall take
into consideration the water quality standards of downstream waters and
shall ensure that its water quality standards provide for the
attainment and maintenance of the water quality standards of downstream
waters.'' This provision requires states and authorized tribes, and EPA
per 40 CFR 131.22(c), to consider and ensure the attainment and
maintenance of downstream WQS during the establishment of designated
uses and water quality criteria in upstream waters.
    EPA's current policy on downstream protection is described in a
document entitled, Protection of Downstream Waters in Water Quality
Standards: Frequently Asked Questions (June 2014) and includes
descriptions of numeric and narrative approaches to ensure the
maintenance and attainment of downstream WQS.\17\ Options to address
downstream protection include, but are not limited to, downstream
protection values developed in tandem with upstream criteria, use of
water quality modeling to ensure upstream criteria are protective of
downstream WQS, numeric criteria, and customized narratives. States and
authorized tribes have reasonable discretion in choosing their
preferred approach to downstream protection based on their individual
circumstances. As described in that document, EPA has developed a set
of four customizable templates\18\ for narrative downstream protection
criteria to assist states and authorized tribes with developing a
downstream protection narrative criterion. These templates may be used
to develop a ``broad narrative'' criterion that provides basic legal
coverage under 40 CFR 131.10(b) (e.g., applies to all waters in the
reservation) as well as a variety of ``tailored narratives'' that can
be developed to address specific water bodies, pollutants, and/or water
body types.
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    \17\ https://nepis.epa.gov/Exe/ZyPDF.cgi/P100LIJF.PDF?Dockey=P100LIJF.PDF.
    \18\ https://www.epa.gov/wqs-tech/templates-narrative-downstream-protection-criteria-state-water-quality-standards.
---------------------------------------------------------------------------

    EPA invites comment on consideration of a downstream protection
narrative criterion and seeks input on suggested narrative language,
which may be informed through use of the customizable templates. EPA
solicits any additional suggestions for other options.
2. Numeric Water Quality Criteria
    As noted previously, in accordance with 40 CFR 131.11(b), states
and authorized tribes, and EPA per 40 CFR 131.22(c), should establish
numeric water quality criteria, unless numeric criteria cannot be
established. At minimum, and as noted above, pursuant to CWA section
303(c)(2)(B), numeric water quality criteria must be established for
the CWA section 307(a)(1) toxic pollutants.19 20 For
regulatory purposes, EPA has translated the 65 compounds and families
of compounds listed under CWA section 307(a) (which potentially include
thousands of specific compounds) into 126 specific toxic substances,
which are

often referred to as the ``priority toxic pollutants.''
---------------------------------------------------------------------------

    \19\ The CWA section 307(a)(1) list of toxic pollutants is
codified at 40 CFR 401.15.
    \20\ Where numeric criteria are not available for such priority
toxic pollutants, CWA section 303(c)(2)(B) requires adoption of
water quality criteria based on biological monitoring or assessment
methods consistent with EPA guidance published pursuant to CWA
section 304(a)(8).
---------------------------------------------------------------------------

    EPA seeks input on whether to establish numeric criteria for any
federal baseline WQS for all parameters for which EPA has published CWA
section 304(a) criteria recommendations, or for some other set of
parameters. These include criteria recommendations for both priority
toxic pollutants discussed previously as well as many other pollutants
and parameters. EPA also invites comments on additional options to
consider when establishing numeric criteria, as well as alternative
approaches to numeric criteria that could help form the basis for any
federal baseline WQS.
a. Aquatic Life Protection
    For the federal baseline WQS effort, EPA could include numeric
criteria for the protection of aquatic life for all pollutants for
which EPA has published CWA section 304(a)(1) criteria recommendations.
EPA has established recommended aquatic life criteria under CWA section
304(a) for 60 pollutants; for a full listing and description of these
criteria see https://www.epa.gov/wqc/national-recommended-water-quality-criteria-aquatic-life-criteria-table.\21\
---------------------------------------------------------------------------

    \21\ These criteria were derived by EPA using its Guidelines for
Deriving Numerical National Water Quality Criteria for the
Protection of Aquatic Organisms and Their Uses. https://www.epa.gov/wqc/guidelines-deriving-numerical-national-water-quality-criteria-protection-aquatic-organisms-and
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    Regarding criteria for temperature, EPA recognizes that temperature
varies significantly, not only nationally but on a regional and local
scale. For instance, temperature requirements for a warm water fishery
differ from temperature requirements protective of a cold water
fishery, and different stages of aquatic life may in turn need
different protective WQS. The appropriate temperature WQS to protect
aquatic life, therefore, may vary among and within reservations
depending on the location of the reservations and the species endemic
to the waters. Due to the broad applicability of the potential federal
baseline WQS to Indian reservations across the United States, EPA is
interested in obtaining comment on recommended approaches for
addressing temperature that would be protective of the federally
promulgated designated uses included in any potential federal baseline
WQS rule. Specifically, EPA solicits comment on using a narrative
temperature criterion to account for significant variability in
temperature requirements of aquatic species in different regions,
different water bodies, and different temperature sensitivities among
species to protect and restore the natural thermal regime (spatial,
temporal, seasonal, diurnal) that is protective of the most thermally
sensitive species. The translation of this temperature narrative
criterion would be conducted during CWA implementation (such as permit,
assessment, TMDL programs) to protect the specific aquatic life uses at
a site.
    Similarly, the appropriate criteria for nutrients may vary among
and within reservations depending on the location of the reservations.
EPA invites comments on whether and how to include numeric and/or
narrative nutrient criteria in any potential federal baseline WQS rule
given the resource implications in developing appropriate numeric
nutrient criteria for such a large number of water bodies over such a
broad geographic area. EPA solicits comment on other potential
approaches to addressing nutrients in any potential federal baseline
WQS rule.
    EPA invites comments on the numeric aquatic life criteria that
could be included in any potential federal baseline WQS rule. EPA also
invites comments on additional options to consider when establishing
numeric criteria for the protection of aquatic life, as well as
alternative approaches to numeric criteria for the protection of
aquatic life that could help form the basis for any federal baseline
WQS.
b. Human Health Protection
    For the federal baseline WQS effort, EPA could include numeric
criteria for the protection of human health for all pollutants for
which EPA has published CWA section 304(a) criteria recommendations.
EPA has published recommended human health criteria under CWA section
304(a) for 122 pollutants; for a full listing and description of these
criteria, see https://www.epa.gov/wqc/national-recommended-water-quality-criteria-human-health-criteria-table.
    To derive criteria for the protection of human health, EPA looks
first to its 2000 Human Health Methodology.\22\ Human health criteria
are based on two types of biological endpoints: (1) Carcinogenicity and
(2) systemic toxicity (i.e., all adverse effects other than cancer).
EPA takes an integrated approach and considers both cancer and non-
cancer effects when deriving human health criteria. Where sufficient
data are available, EPA derives criteria using both carcinogenic and
non-carcinogenic toxicity endpoints and chooses the lower value. Human
health criteria for carcinogenic effects are calculated using the
following input parameters: Cancer slope factor, cancer risk level,
body weight, drinking water intake rate, fish consumption rate, and a
bioaccumulation factor(s). Human health criteria for non-carcinogenic
and nonlinear carcinogenic effects are calculated using a reference
dose in place of a cancer slope factor and cancer risk level, as well
as a relative source contribution, which is intended to ensure that an
individual's total exposure from all sources does not exceed the
criteria. Each of these inputs is discussed in more detail in this
section and in EPA's 2000 Human Health Methodology.
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    \22\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004.
https://www.epa.gov/wqc/human-health-water-quality-criteria.
---------------------------------------------------------------------------

    As discussed in this section, EPA seeks additional comment on two
of the human health criteria input parameters: The cancer risk level
and the fish consumption rate, which may vary depending on policy
decisions, other applicable federal laws, and data availability.
    EPA invites comments on the human health criteria that could be
included in any federal baseline WQS rule. EPA also invites comments on
alternative approaches to numeric criteria for the protection of human
health that could help form the basis for any federal baseline WQS.
Cancer Risk Level
    EPA's CWA section 304(a) national recommended human health criteria
generally assume that carcinogenicity is a ``non-threshold
phenomenon,'' which means that there are no ``safe'' or ``no-effect''
levels because even extremely small doses are assumed to cause a finite
increase in the incidence of cancer. Therefore, EPA calculates CWA
section 304(a) human health criteria for carcinogenic effects as
pollutant concentrations corresponding to lifetime increases in the
risk of developing cancer.\23\ EPA calculates its CWA section 304(a)
human health criteria values at a 10-\6\ (one in one
million) cancer risk level and recommends cancer risk levels of
10-\6\ or 10-\5\ (one in one hundred thousand)
for the general population. EPA notes that states and authorized tribes
can also choose other risk levels, such as 10-\7\ (one in
ten million), when deriving human health criteria.
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    \23\ As noted above, EPA recommends the criteria derived for
non-carcinogenic effects if it is more protective (lower) than that
derived for carcinogenic effects.
---------------------------------------------------------------------------

    If the pollutant is not considered to have the potential for
causing cancer in

humans (i.e., systemic toxicants), EPA assumes that the pollutant has a
threshold below which a physiological mechanism exists within living
organisms to avoid or overcome the adverse effects of the pollutant.
    For the federal baseline WQS effort, EPA could calculate human
health criteria using the 10-\6\ (one in one million) cancer
risk level to ensure that the resulting criteria are sufficiently
protective and based on a sound scientific rationale. EPA invites
comments on this approach and seeks input on other potential options,
such as 10-\5\ or 10-\7\.
Fish Consumption Rate
    As noted previously, the fish consumption rate is one of the input
parameters used to calculate human health criteria. EPA generally
recommends selecting a fish consumption rate that is based upon local
data and, where sufficient data are available, selecting a fish
consumption rate that reflects consumption that is not suppressed by
fish availability or concerns about the safety of available fish.\24\
However, given the broad geographic scope of this potential federal
baseline WQS rule, it could be challenging to identify reservation-,
water-, or even region-specific fish consumption rates based on
available data. EPA current thinking is to propose a more limited set
of options to address fish consumption rate in any potential numeric
human health criteria that may be proposed as part of a federal
baseline WQS regulation. Some potential options include:
---------------------------------------------------------------------------

    \24\ USEPA. January 2013. Human Health Ambient Water Quality
Criteria and Fish Consumption Rates: Frequently Asked Questions.
https://www.epa.gov/wqc/human-health-ambient-water-quality-criteria-and-fish-consumption-rates-frequently-asked.

--EPA's national default fish consumption rate of 22 g/day, which is a
90th percentile value found to be reasonable and adequately
representative of the general population of fish consumers based on the
2003-2010 data from the National Health and Nutrition Examination
Survey (NHANES).\25\
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    \25\ EPA's national fish consumption rate is based on the total
rate of consumption of fish and shellfish from inland and nearshore
waters (including fish and shellfish from local, commercial,
aquaculture, interstate, and international sources). USEPA. January
2013. Human Health Ambient Water Quality Criteria and Fish
Consumption Rates: Frequently Asked Questions. https://www.epa.gov/wqc/human-health-ambient-water-quality-criteria-and-fish-consumption-rates-frequently-asked.
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--EPA's national default subsistence value of 142 g/day, representing
subsistence fishers whose daily consumption is greater than the general
population, as presented in EPA's 2000 Human Health Methodology.
--160 g/day, which provides for half of the USDA's recommended daily
protein intake from all sources to come from fish consumption (which
would assume the other half would come from sources other than fish and
shellfish).
--175 g/day, the 95th percentile value of the data from surveyed tribal
members in the Fish Consumption Survey of the Umatilla, Nez Perce,
Yakama, and Warm Springs Tribes of the Columbia River Basin (Columbia
River Inter-Tribal Fish Commission (CRITFC), 1994).\26\

    \26\ Accounts for consumption of fish from inland and nearshore
waters, as well as anadromous fish.
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    EPA could consider proposing an approach in which it assigns, as a
default, human health criteria based on one of the four fish
consumption rate options above to all reservations, and allow affected
tribal governments, should they so request in comments, to select one
of the other three options above for their reservations, based on any
applicable rights reserved in treaties or other federal law, and
available data and information. In such a case, EPA could promulgate
reservation-specific human health criteria based on one of the other
three alternative fish consumption rates for such reservation(s). EPA
invites comments this approach, as well as comments on additional
options to consider when establishing numeric criteria for the
protection of human health as part of the federal baseline WQS effort.
    During consultation, EPA heard a number of tribes suggest that
their own specific survey data be used in calculating the fish
consumption rate for human health criteria for a specific reservation.
EPA recognizes why such an approach may be attractive to tribes, but
has concerns that attempting to provide individual, reservation-
specific tailoring opportunities could present a very large workload
that could substantially delay proposal and finalization of any federal
baseline WQS effort. EPA notes that an alternative approach to fully
tailor WQS to a particular reservation is through the TAS and WQS
adoption processes. EPA requests comment on these considerations and
how they should be addressed in any potential federal baseline WQS
regulation.

E. What approaches should the potential federal baseline WQS take with
regard to antidegradation requirements?

    Maintaining high water quality is critical to supporting economic
and community growth and sustainability. Protecting high water quality
also provides a margin of safety that will afford the water body
increased resilience to potential future stressors, including climate
change. While preventing degradation and maintaining a reliable source
of clean water involves costs, it can be more effective and efficient
than investing in long-term restoration efforts or remedial actions.
    Antidegradation requirements are an essential component of WQS and
play a critical role in maintaining and protecting the valuable water
resources. Although designated uses and criteria are the primary tools
used to achieve the goals of the CWA, antidegradation requirements
complement these by providing a framework for making decisions
regarding changes in water quality. In the 1987 amendments to the CWA,
Congress expressly affirmed the principle of antidegradation that is
reflected in section 101 of the Act to ``maintain the chemical,
physical and biological integrity of the Nation's waters.'' In the 1987
amendments, Congress incorporated a reference to antidegradation
policies in CWA section 303(d)(4)(B), thus confirming that an
antidegradation policy is an integral part of the CWA and explaining
the relationship between the antidegradation policies and other
regulatory programs under the CWA.
    The federal antidegradation regulation requires development and
adoption of an ``antidegradation policy'' and development of
``antidegradation implementation methods.'' 40 CFR 131.12. The intent
of an antidegradation policy is to ensure that in all cases, at a
minimum: (1) Water quality necessary to support existing uses is
maintained; (2) that where water quality is better than the minimum
level necessary to support protection and propagation of fish,
shellfish and wildlife, and recreation in and on the water, that water
quality is also maintained and protected unless, through a public
process, some lowering of water quality is deemed to be necessary to
accommodate important economic or social development in the area in
which the water is located; and (3) waters identified as Outstanding
National Resource Waters are protected. For the purposes of EPA's
national WQS regulation, ``antidegradation policies'' must be in rule
or other legally binding

form, and must be consistent with the requirements of 40 CFR 131.12(a).
``Antidegradation implementation methods'' refer to any additional
documents and/or provisions developed by a state or authorized tribe,
and EPA per 40 CFR 131.22(c), which describes methods for implementing
its antidegradation policy, whether or not the state or authorized
tribe formally adopts the methods in regulation or other legally
binding form. EPA's initial thinking is that any proposed federal
baseline WQS would include both an antidegradation policy and
antidegradation implementation methods. EPA seeks input on establishing
antidegradation requirements for any federal baseline WQS, whether
antidegradation implementation methods should be included in rule, as
well as alternative approaches that could help form the basis for any
federal baseline WQS.
1. Antidegradation Policy
    The antidegradation policy provisions of any federal baseline WQS
rule would have to be consistent with the federal antidegradation
policy at 40 CFR 131.12(a).\27\ Such provisions would establish
baseline levels of water quality protection for Indian reservation
waters, as required, by the CWA and federal WQS regulation. EPA notes
that the language in any federal baseline WQS rule would need to be
slightly different from 40 CFR 131.12(a) in order to make the policy
easier to understand in the federal baseline WQS context.
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    \27\ 40 CFR 131.12(a) outlines the required contents of state
and authorized tribal antidegradation policies; 40 CFR 131.22(c)
makes clear that in promulgating WQS, EPA is subject to the same
policies, procedures, analyses, and public participation
requirements established for states and authorized tribe in the
national WQS regulation (e.g., the requirements at 40 CFR
131.12(a)).
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    When identifying high quality (or Tier 2) waters, EPA's initial
thinking is that high quality waters could be identified, at the time a
lowering of water quality is proposed, on a parameter-by-parameter
basis. The national WQS regulation allows states and authorized tribes,
and EPA per 40 CFR 131.22(c), to utilize either a parameter-by-
parameter basis or a water body-by-water body basis to identify high
quality waters (see 40 CFR 131.12(a)(2)(i)). Under the parameter-by
parameter approach, states, authorized tribes (and EPA where necessary)
determine whether water quality is better than the applicable criteria
for a specific parameter or pollutant that would be affected by a new
discharge or an increase in an existing discharge of the pollutant. For
example, if zinc levels were 20 milligrams per liter (mg/L) and the
applicable criterion was 120 mg/L, that water body would be a high
quality water for zinc, but might not necessarily be high quality for
another parameter. Determining which parameters are at a quality higher
than necessary to support the CWA section 101(a)(2) uses is generally
made at the time of a permit application for a new discharge or an
increase in an existing discharge of the pollutant in question. The
parameter-by-parameter basis is straightforward, may result in more
Tier 2 protections being afforded to more waters, and lends itself to
greater public transparency. EPA seeks input on identifying high
quality waters using the parameter-by-parameter basis in any federal
baseline WQS rulemaking.
    EPA's initial thinking is that water bodies could be identified
that are of exceptional recreational, ecological, or other significance
(e.g., Outstanding National Resource Waters). This provision would be
consistent with 40 CFR 131.12(a)(3), and in effect, could establish the
highest level of protection by prohibiting the lowering of water
quality. Any proposed federal baseline WQS could outline a nomination
process to identify Indian reservation waters that warrant protection
as an Outstanding National Resource Water. Such a process could specify
that any interested party may nominate a specific water for such
protection and that the Regional Administrator, in consultation with
the appropriate tribal government(s), will make the final decision to
assign the water as an Outstanding National Resource Water. A decision
to assign a water as an Outstanding National Resource Water is subject
to the public participation requirements of 40 CFR part 25, although a
public hearing is not required.
    EPA invites comments on the antidegradation policy outlined in this
section and how this could be reflected in any potential federal
baseline WQS proposal. EPA also seeks input on any additional options
to consider when establishing an antidegradation policy for any
potential federal baseline WQS rule.
2. Antidegradation Implementation Methods
    Consistent with 40 CFR 131.12(b), methods to implement the
antidegradation policy must be developed, provide an opportunity for
public involvement, and be made available to the public. While
antidegradation implementation methods are not required to be contained
in regulation, EPA is considering whether to include antidegradation
implementation methods as a section of any proposed federal baseline
WQS regulation. Because the antidegradation implementation methods
would inform permit decisions and other implementation actions, EPA's
current view is that for public transparency and for consistency in
implementation, any federal baseline WQS effort should include
antidegradation implementation methods in regulation. EPA invites
comments on whether and how EPA could establish antidegradation
implementation methods for any potential federal baseline WQS
rulemaking. EPA also seeks input on any additional options to consider
when establishing antidegradation implementation methods for any
potential federal baseline WQS rule.
    The WQS regulation at 40 CFR 131.12 does not specify minimum
elements that must be included in antidegradation implementation,
however, EPA provided a list of the areas that antidegradation
implementation methods would need to address, at a minimum, to be
consistent with the national WQS regulation (see 78 FR 58530, September
4, 2013). The list of minimum elements includes: (1) Scope and
applicability; (2) Existing uses protection; (3) High quality water
protection, including how high quality waters are to be identified, and
the analyses and procedures that must be met to determine whether to
allow a lowering of high quality waters; (4) Outstanding National
Resource Water protection; and (5) Thermal Discharges.\28\ The federal
baseline WQS effort could establish antidegradation implementation
methods for each of these minimum elements.
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    \28\ EPA is not requesting comment on EPA's interpretation of
CWA section 316 or the implementing regulation at 40 CFR 124.66.
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    EPA invites comments on the components and contents of the
antidegradation implementation methods that could be established to
meet the minimum elements, as well as any additional options to
consider when establishing antidegradation implementation methods for
any potential federal baseline WQS rule.

F. How could wetlands be addressed in the potential federal baseline
WQS?

    The national WQS regulation at 40 CFR 131.3(i) defines WQS as
``provisions of [s]tate \29\ or Federal law

which consist of a designated use or uses for the waters of the United
States and water quality criteria for such waters based upon such uses.
WQS are to protect the public health or welfare, enhance the quality of
water and serve the purposes of the Act.'' Wetlands that are ``waters
of the United States'' can be covered by federal WQS that help to
provide a mechanism for their protection. A number of states have
established WQS for wetlands, and EPA recently worked together with the
Association of Clean Water Administrators to establish a template to
assist states and authorized tribes in establishing narrative WQS for
wetlands.
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    \29\ EPA's regulation, at 40 CFR 131.3(j), defines ``state'' to
include the ``50 States, the District of Columbia, Guam, the
Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the
Commonwealth of the Northern Mariana Islands, and Indian Tribes that
EPA determines to be eligible for purposes of the water quality
standards program.''
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    Wetlands often need specialized WQS because they have different
functions and different vulnerability and wetland-specific WQS can
provide robust protection for wetlands and their functions. Wetlands
exist as ecosystems along the margins (land-sea, land-lake, land-river)
and in depressional landscapes (e.g., prairie potholes in the Midwest
and kettle-hole wetlands in the northern United States). By season and
location, wetlands experience variable water depth and velocity, soil
type and saturation levels, vegetation, nutrient levels, sediment type,
and oxygen demand, both within a given wetland and among wetland types.
    EPA seeks comment on whether to include specific WQS provisions for
the protection of wetlands WQS and, if so, suggestions for language,
considerations, and approaches for doing so. Such wetland-specific WQS
could include specific designated uses, narrative criteria, and
antidegradation requirements developed from EPA's online template, see
https://www.epa.gov/wqs-tech/templates-developing-wetland-water-quality-standards.

G. Which general provisions should be included in the potential federal
baseline WQS?

    As specified in 40 CFR 131.13--131.15, WQS can generally include
certain discretionary policies that generally affect how WQS are
applied or implemented. Most common among such provisions are those
addressing mixing zones, compliance schedules authorizing provisions,
and WQS variances. EPA requests input on whether it would be
appropriate to include such provisions in any proposed federal baseline
WQS regulation and, if so, which provisions and how they should be
framed. EPA requests specific comment on inclusion of the following
three WQS provisions that EPA is considering to ensure effective
implementation of any potential federal baseline WQS proposal.
1. Mixing Zone Authorizing Provision
    Should EPA consider inclusion of a provision in the potential
federal baseline WQS rule, if promulgated, to allow EPA to establish
mixing zones in permitting scenarios on a case-by-case basis after
consultation with the appropriate tribal government(s)?
    EPA's guidance on mixing zones has been detailed in a number of
Agency publications, including EPA's Water Quality Standards Handbook,
Chapter 5, General Policies and the Technical Support Document for
Water Quality-based Toxics Control (TSD), March 1991, p33-34, 70-78.
    EPA invites comments on whether to include a mixing zone
authorizing provision in any potential federal baseline WQS rule, as
well as any additional options to consider when establishing a mixing
zone authorizing provision.
2. Compliance Schedule Authorizing Provision
    Should EPA consider inclusion of a compliance schedule authorizing
provision in the potential federal baseline WQS rule, if promulgated,
to allow compliance schedules to be included in NPDES permits on a
case-by-case basis when appropriate after consultation with the
appropriate tribal government(s)? Such authorizing provision would
allow for compliance schedules to be included in NPDES permits to allow
permittees additional time to achieve compliance with effluent
limitations implementing the requirements of the CWA and applicable
regulations.
    By including such a provision, the potential federal baseline WQS
would authorize EPA to include a compliance schedule, when appropriate
and consistent with 40 CFR 122.47, in a NPDES permit for a new,
recommencing or existing discharger to Indian reservation waters of the
United States. Where it did so, the discharger to whom a permit was
issued or reissued on or after the effective date of the final rule
would have to comply with the permit limitations and requirements by
the compliance schedule date. A new source or new discharger to Indian
reservation waters of the United States would not be eligible for a
compliance schedule unless it meets the requirements of 40 CFR
122.47(a)(2). If a new source or new discharger is not granted a
compliance schedule, it must comply with any water quality-based
effluent limitation in a permit issued on or after the effective date
of the final rule upon commencing discharge.
    EPA invites comment on the inclusion of a compliance schedule
authorizing provision as part of any potential federal baseline WQS
rule, as well as any additional options to consider when establishing a
compliance schedule authorizing provision.
3. WQS Variance Authorizing Provision
    Should EPA consider inclusion of a provision that would establish a
process for EPA to issue WQS variances on a case-by-case basis after
consultation with the appropriate tribal government(s)?
    A WQS variance is a time-limited designated use and criterion
(i.e., interim requirements) that is targeted to a specific
pollutant(s), source(s), and/or water body segment(s) that reflects the
highest attainable condition during the specified time period. As such,
a WQS variance requires a public process and EPA review and approval
under CWA section 303(c). While the underlying designated use and
criterion reflect what is ultimately attainable, the WQS variance
reflects the highest attainable condition for a specific timeframe and
is, therefore, less stringent. The interim requirements specified in
the WQS variance apply only for CWA section 402 permitting purposes and
in issuing certifications under section 401 of the CWA for the
pollutant(s), permittee(s), and/or water body or waterbody segment(s)
covered by the WQS variance.
    Such interim requirements may be adopted based on documentation
demonstrating the need for a WQS variance consistent with 40 CFR
131.14(b)(2). Where the underlying designated use and criterion are not
being met, WQS variances that reflect a less stringent, time-limited
designated use and criterion would allow dischargers additional time to
implement adaptive management approaches to improve water quality, but
still retain the underlying designated use as a long term goal for the
water body. WQS variances can apply to individual dischargers, multiple
dischargers, and to entire water bodies or segments.
    A WQS variance serves as the basis for the water quality-based
effluent limit in NPDES permits. However, the interim requirements do
not replace the underlying designated use and criteria

for the water body as a whole for all CWA purposes. A WQS variance is
designed to lead to improved water quality over the duration of the WQS
variance and, in some cases, full attainment of designated uses due to
advances in treatment technologies, control practices, or other changes
in circumstances, thereby furthering the objectives of the CWA. For
more information on WQS variances, please refer to EPA's final
rulemaking to update the national WQS regulation.\30\
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    \30\ 80 FR 51019, August 21, 2015. https://www.gpo.gov/fdsys/pkg/FR-2015-08-21/pdf/2015-19821.pdf.
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    EPA's current regulation allows for adoption of a WQS variance,
consistent with 40 CFR 131.14, as part of a state or authorized tribe's
WQS. EPA would consider establishing WQS variances to EPA's promulgated
federal baseline designated uses and criteria on a case-by-case basis
in consultation with tribes. Recognizing such tribes may have limited
resources and minimal to no expertise with WQS development and
administration, EPA could work in consultation with the affected tribal
government(s) to assemble documentation to justify a WQS variance and
meet the requirements of 40 CFR 131.14, as appropriate.
    EPA invites comments on the inclusion of a WQS variance authorizing
provision as outlined in this section, any additional options to
consider when establishing a WQS variance provision for any potential
federal baseline WQS rule, and on the implementation of the WQS
variance provision.

H. Can tribes adopt WQS of their own?

    In any final federal baseline WQS rule, EPA could include an
explicit section to make clear that a tribe approved for TAS
eligibility under CWA section 518 would continue to be able to adopt
WQS of its own and submit them to EPA for approval, even after baseline
WQS became effective. The tribe would need to apply to EPA for TAS to
administer the WQS program. If EPA determines the tribe is eligible to
administer the program, using the eligibility criteria and procedures
in 40 CFR 131.8, then EPA would review the WQS adopted and submitted by
the tribe to EPA. At that point, EPA reviews the submission under the
process it regularly uses for tribes and states to ensure they are
consistent with the requirements of the CWA and EPA's implementing
regulation at 40 CFR part 131, and can approve in whole or in part.\31\
For any such WQS that are approved, the corresponding federal baseline
WQS rule would no longer apply to such tribe's reservation waters
because such waters would fall within the categories of waters excluded
from any federal baseline WQS rule, namely reservation waters with CWA-
effective WQS. Therefore, the federal baseline WQS would not affect a
tribe's ability to apply to administer its own WQS program and adopt
WQS under 40 CFR 131.8.
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    \31\ CWA section 303(c)(2) requires states and authorized tribes
to submit new and revised WQS to EPA for review. EPA is required to
review and approve or disapprove the WQS pursuant to CWA section
303(c)(3). EPA's goal is to work closely and collaboratively with
states and authorized tribes throughout the WQS development and
revision process.
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    EPA invites comments on the inclusion of a section making clear
that tribes, at any time, may seek TAS and, if approved by EPA, submit
their own WQS for CWA purposes as outlined in this section.

IV. Statutory and Executive Order Review

A. Statutory and Executive Order Reviews

    Under Executive Order 12866, entitled Regulatory Planning and
Review (58 FR 51735, October 4, 1993), this is a ``significant
regulatory action'' because the action raises novel legal or policy
issues. Accordingly, EPA submitted this action to the Office of
Management and Budget (OMB) for review under Executive Order 12866 and
any changes made in response to OMB recommendations have been
documented in the docket for this action. Because this action does not
propose or impose any requirements, and instead seeks comments and
suggestions for the Agency to consider in possibly developing a
subsequent proposed rule, the various statutes and Executive Orders
that normally apply to rulemaking do not apply in this case. Should EPA
subsequently determine to pursue a rulemaking, EPA will address the
statutes and Executive Orders as applicable to that rulemaking.

B. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This ANPRM seeks input on key issues related to whether and how to
fill the gap of WQS coverage in Indian reservation waters. In
preparation for this ANPRM effort, EPA consulted and coordinated with
tribal officials, consistent with EPA's Policy on Consultation and
Coordination with Indian tribes. EPA initiated consultation in the Fall
of 2015, from August through November, and then continued consultation
in the Summer of 2016, from June to August. During that time, EPA
received considerable input from tribal officials, most of it
supportive of this effort. The types of questions posed by tribal
officials are reflected in this ANPRM for further discussion and public
comment. EPA will continue to consult, coordinate, and engage tribes,
to permit them to have meaningful and timely input into development of
any potential federal baseline WQS rulemaking.
    EPA invites comment from tribes on whether establishing federal
baseline WQS is an appropriate step in advancing the federal trust
responsibility to federally recognized tribes, and enhancing tribal
government sovereignty through protection of reservation water quality.
EPA is interested in any input regarding whether there are any concerns
that would warrant not including a tribe in any final federal baseline
WQS rule. While EPA is considering proposing to apply these WQS to all
Indian reservations without CWA-effective WQS, in order to meet the
goals of the CWA and better protect Indian reservation waters, EPA
invites comment on other options.

List of Subjects in 40 CFR Part 131

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

    Dated: September 19, 2016.
Gina McCarthy,
Administrator.
[FR Doc. 2016-23432 Filed 9-28-16; 8:45 am]
 BILLING CODE 6560-50-P