federalregister 36741 Tuesday July 7, 1998 Part II Environmental Protection Agency 40 CFR Part 131 Water Quality Standards Regulation; Proposed Rule 36742 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [ FRL   0W   6118   9]

RIN   2040   AC56 Water Quality Standards Regulation AGENCY: Environmental Protection Agency. ACTION: Advance notice of proposed rulemaking.

SUMMARY: EPA is today publishing this advance notice of proposed rule making ( ANPRM) seeking comments from interested parties on possible revisions to the Water Quality Standards Regulation at 40 CFR Part 131. This ANPRM is intended to initiate discussions on what if any changes are needed in the national water quality standards program to improve the effectiveness of water quality standards in restoring and maintaining the quality of the Nation's waters. EPA will consider all comments before deciding whether to propose revisions to the regulation. EPA is particularly interested in comments on certain key portions of the current Water Quality Standards Regulation ( the regulation) contained in 40 CFR Part 131, which establishes requirements for adoption of water quality standards pursuant to section 303 of the Clean Water Act ( CWA or the Act). This ANPRM identifies specific issues on which EPA solicits comment. In addition to the specific issues on which EPA solicits comments, EPA is interested in comments on any other aspects of the program. EPA requests comments with the objectives of: supporting watershed or place based environmental water quality management, ensuring that current water quality criteria and water quality assessment science can be easily incorporated into State and Tribal water quality programs, and enhancing effective implementation of the Act. DATES: Written comments must be submitted by midnight January 4, 1999. ADDRESSES: Send written comments to W   98   01, WQS ANPRM Comment Clerk, Water Docket, MC 4101, US EPA, 401 M Street, S. W., Washington, D. C. 20460. Comments may also be submitted electronically to OWDocket epamail. epa. gov. The record is available for inspection from 9: 00 to 4: 00 p. m., Monday through Friday, excluding legal holidays at the Water Docket, East Tower Basement, USEPA, 401 M St., S. W., Washington, D. C. For access to docket materials, please call ( 202) 260   3027 to schedule an appointment.

FOR FURTHER INFORMATION CONTACT: Rob Wood at U. S. EPA Standards and Applied Science Division ( 4305), 401 M Street SW, Washington, DC 20460 ( email WOOD. ROBERT@ EPA. GOV) ( telephone: 202   260   9536).

SUPPLEMENTARY INFORMATION: EPA will hold a series of full day public meetings for the purpose of discussion and debate on the issues presented in this notice. EPA plans to hold the public meetings during the 180 day public comment period on this notice. Dates, times and locations of public meetings will be announced to the public.

A. Potentially Affected Entities This ANPRM by itself will have no regulatory impact or effect. The ANPRM does contain EPA interpretations of core areas of the regulation as well as EPA thinking about how the regulation may need to be changed. As discussed in more detail below, this ANPRM marks the beginning of a national dialogue on possible changes to the water quality standards regulation and program. If changes to the regulation are proposed and ultimately made final, to the extent such changes would require and/ or authorize changes to State and Tribal water quality standards, States and authorized Tribes would be affected. If changes to State and Tribal water quality standards result from any final rule that EPA may promulgate in the future, entities subject to compliance with State or Tribal water quality standards would also potentially be affected. For example, States and Tribes authorized to implement the National Pollutant Discharge Elimination System ( NPDES) Permit Program would need to ensure that permits they issue include any limitations on discharges necessary to comply with any water quality standards established as a result of any subsequent final rulemaking. Therefore, entities discharging pollutants to waters of the United States under NPDES could be affected by subsequent proposed and final rulemaking. Categories and entities that may ultimately be affected include:

Category Examples of potentially affected entities State, Tribes and Jurisdictional Governments ......................................... States, Tribes authorized to administer water quality standards, and jurisdictional governments. Industry ..................................................................................................... Industrial dischargers of pollutants to waters of the U. S. Municipalities ............................................................................................ Publicly owned treatment works discharging pollutants to waters of the U. S.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities that could be affected by any subsequent final rulemaking. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. Water Docket Information The record for this notice has been established under docket number W   98   01 and includes supporting documentation. When submitting written comments to the Water Docket, ( see ADDRESSES section above) please reference docket number [ W   98   01] and submit an original and three copies of your comments and enclosures ( including references). To ensure that EPA can read, understand and therefore properly respond to comments, the Agency would prefer that commenters cite the specific question( s) in the notice to which each comment refers. The questions presented in this notice for public comment are organized by subsection and numbered. Each question has a unique number ( for example III. B. 3. a., question 1) for this purpose. Comments must be received or postmarked by midnight January 4, 1999. Commenters who want EPA to acknowledge receipt of their comments should enclose a self addressed, stamped envelope. No facsimiles ( faxes) will be accepted. Electronic comments are encouraged and may be submitted to the Water Docket ( see ADDRESSES section above). Electronic comments must be submitted as an ASCII file or a WordPerfect file avoiding the use of special characters and any form of encryption. Electronic comments must be identified by the docket number, [ W   98   01], and be received by midnight of January 4, 1999. Comments and data will also be accepted on disks in WP5.1 format or 36743 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules ASCII file format. No confidential business information ( CBI) should be sent via e mail. The remainder of this Supplementary Information section is organized as follows:

I. Purpose and Objectives of This ANPRM A. General Purpose and Vision B. Objectives II. Introduction to Water Quality Standards A. Statutory History B. Regulatory History C. Water Quality Guidance for the Great Lakes System III. Program Areas for Public Comment A. Introduction B. Uses 1. Background 2. Refined Designated Uses 3. Existing Uses a. Protection of Existing Uses 4. Use Attainability a. Attainability of Uses b. Removal of Designated Uses c. Use Attainability Analysis d. Alternatives to `` Downgrade'' of the Designated Use i. Variances ii. Temporary Standards iii. Ambient based Criteria C. Criteria 1. Background 2. Ambient Water Quality Criteria to Protect Aquatic Life 3. Site Specific Criteria 4. Narrative Water Quality Criteria 5. State or Tribe Derived Criteria 6. Water Quality Criteria for Priority Pollutants 7. Criteria for Non Priority Pollutants with Toxic Effects 8. Criteria Where Data or Guidance is Limited 9. Toxicity Criteria 10. Sediment Quality Criteria 11. Biological Criteria 12. Wildlife Criteria 13. Physical Criteria 14. Human Health a. Risk Levels b. Fish Consumption Assumptions c. Maximum Contaminant Levels 15. Microbiological Criteria 16. Nutrient Criteria D. Antidegradation 1. Background 2. General Description of Antidegradation 3. 40 CFR 131.12 ( a)( 1) `` tier 1'' a. Tier 1 Implementation 4. 40 CFR 131.12 ( a)( 2) `` tier 2'' a. Identification of `` High Quality'' Waters b. Tier 2 Implementation i. Triggers for tier 2 Review ii. `` Necessary'' Lowering of Water Quality iii. Identification of `` Important'' Social or Economic Activities iv. Tier 2 and Identification of Waters under CWA Section 303( d) v. Achieving all cost effective and reasonable best management practices for nonpoint sources 5. 40 CFR 131.12 ( a)( 3) `` tier 3'' a. Designating ONRWs i. Relationship of tier 3 to the Wild and Scenic Rivers Act b. Tier 3 Implementation c. Tier 21  2 6. 40 CFR 131.12 ( a)( 4) `` Thermal Discharges'' E. Mixing Zones 1. Background 2. EPA Policy and Guidance on Mixing Zones 3. State and Tribal Mixing Zone Policies 4. Mixing Zone Requirements 5. Mixing Analyses 6. Narrative Criteria for Mixing Zones 7. Mixing Zones for Bioaccumulative Pollutants 8. Stream Design Flow Policies F. Wetlands as Waters of the United States G. Independent Application Policy 1. Introduction a. Biological Assessments b. Toxicological Assessments c. Chemical Assessments 2. Independent Application and Water Quality Assessments a. Independent Application b. Alternatives to Independent Application 3. Independent Application and NPDES Permitting a. Independent Application b. Alternatives to Independent Application IV. Summary and Potential Program and Regulation Changes V. Regulatory Assessment Requirements A. Executive Order ( E. O.) 12866, Regulatory Planning and Review B. The Regulatory Flexibility Act ( RFA) as Amended by the Small Business Regulatory Enforcement Fairness Act ( SBREFA) of 1996 C. Paperwork Reduction Act I. Purpose and Objectives of This ANPRM A. General Purpose and Vision On February 14, 1998, the visionary `` Clean Water Action Plan'' was announced by the Administrator of EPA and the Secretary of Agriculture. The `` Clean Water Action Plan'' is a blueprint for restoring and protecting the Nation's precious water resources. A key element of the plan is advancement of the watershed approach to water quality protection. EPA's belief is that refining designated uses and implementing better more integrated water quality criteria to protect the refined uses, two important themes of this ANPRM, are essential steps in carrying out the blueprint presented. Revision of the water quality standards regulation can be an essential component in implementing the vision of the `` Clean Water Action Plan.'' States, Tribes and EPA have developed functional water quality standards programs under the current regulation and these programs have provided the basis for significant water quality improvement in the United States. Simply put, the current regulation is not broken. Rather, with the renewed interest in watershed management combined with improved methods for water quality assessment, a comprehensive evaluation for the purpose of strengthening the regulation is appropriate at this time. EPA and the public need to examine whether changes in the regulation could enhance water quality management on a watershed basis and focus resources on areas of greatest concern. A review of the regulation will also complement similar outreach discussions EPA is currently undertaking for the purposes of reviewing the water quality planning and management and total maximum daily load ( TMDL) programs as well as aspects of the NPDES program. EPA is committed to ensuring that these programs, combined, form an even stronger integrated basis for water quality planning, priority setting and implementation on a watershed basis. In recent years there has been a rising level of scrutiny placed on water quality standards and the State, Tribal and EPA decisions based on water quality standards. The increased scrutiny comes from virtually all parties affected by water quality based decisions and is evidenced by the growing tide of challenges to State standards, EPA policies and guidance, and individual water quality based decisions. Remaining water quality problems in the U. S. are often difficult to assess, define and solve. Once agreed upon, the solutions will be less conventional than we are used to and may result in different regulatory approaches. Examples of such problems include aquatic and riparian habitat destruction from municipal and agricultural run off and fish tissue contamination from chemicals with many and diverse sources. EPA believes that this scrutiny will continue and that an evaluation of the water quality standards program and its regulatory and policy underpinnings to identify where these program underpinnings may need to be strengthened, clarified or revised is imperative. Our task under the Clean Water Act is to ensure adequate water quality even where it is difficult to do so. To accomplish this task, EPA envisions a national water quality standards program in which: the best possible information on whether designated uses are being attained and how to attain and maintain them is available and used; water quality criteria are selected from a wide ranging menu of scientifically sound criteria that can be tailored to each watershed; national norms of consistency and flexibility in State and Tribal water quality standards are clear; and innovative, cost effective approaches are 36744 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules encouraged. To realize this vision, EPA believes that a structured national debate is needed to identify a focused set of issues that may ultimately lead to changes to the water quality standards regulation and policy. The ANPRM process allows EPA to begin this work by consulting with all interested parties to find out what changes, if any, are necessary and desirable, to make the water quality standards regulation more responsive to current needs and to identify opportunities for further clarifications of policy and guidance by EPA. In the fourteen years since EPA last revised the water quality standards regulation, interested parties have gained considerable experience in developing and implementing water quality standards. This experience will provide valuable information for review of these regulations. The most significant shift in water quality management programs in recent years has been the increased emphasis on the use of watershed based programs. It is increasingly apparent that EPA, States, Tribes, municipalities and the public share a common view that water quality programs, including water quality standards, can be better tailored to the characteristics, problems, risks and implementation tools available in individual watersheds or basins with meaningful involvement of the local communities. The water quality standards regulation should ensure that States and Tribes have the flexibility to define the water quality standards and hence the environmental objectives of a water body according to the characteristics of the ecosystem and the needs of the water's users within the bounds established under the CWA. The regulation must allow the States and Tribes to tailor water body use designations and criteria to protect these uses within individual basins or watersheds based on the needs in the basin. The present use of broad, jurisdiction wide use classifications and lists of associated chemical criteria may be at once too general and too narrow for some waters, lacking the refinement necessary to tailor water quality management actions to specific watersheds. This general approach reflects the historical lack of information on specific basins or water bodies and the need to ensure that all waters receive adequate protection. Additionally, it should be made clear how much flexibility States and Tribes have to adjust use designations as information improves about whether a designated use or a higher use can be attained and to reflect natural and human caused changes in water quality that may have occurred. The challenge for EPA, States and Tribes is to identify and use opportunities to refine use designations for waters where it makes sense and better match the water quality criteria to the refined use, thus making water quality standards more flexible. In addition, to more effectively implement the standards, the criteria that are used need to better integrate multiple stressors and their cumulative impacts in order to more effectively protect designated uses. Significant scientific advancements in recent years have added to the ability to assess environmental impacts and risks related to changes in water quality. As they are further developed, new and emerging sophisticated and integrated analytical tools such as bioassessment, criteria for bioaccumulative chemicals, sediment quality criteria and toxicity assessments will increasingly allow States, Tribes, EPA and the public to characterize better the ecological condition of water resources. At present, this improving capability, used in a tailored watershed planning and management framework, can enhance the ability of States and Tribes to characterize and protect locally agreed upon goals for maintaining and protecting the chemical, physical and biological integrity of individual basins. In the long term, chemical, physical and biological assessment methods will continue to improve. As they do, the water quality standards program should be designed to accommodate effectively the new science. In the meantime, progress should not be stalled by incomplete knowledge. With the new science and assessment methodologies, however, come new challenges for States and Tribes to identify the resources necessary to make use of these advances. One of the main themes of this ANPRM is the need for better data, and new types of data, in order to support a more refined approach to water quality protection. EPA recognizes, however, that efforts to obtain such data, and develop the analytical capacity to integrate it into existing regulatory programs, could encounter significant resource constraints in some States and Tribes. EPA is well aware that in order for a new, data intensive, watershed specific approach to succeed, it must be workable for the States and Tribes that will have to implement it. EPA welcomes comments regarding concerns over resource constraints and ideas for how to address them. The water quality standards program must protect the nation's waters as envisioned in the CWA. It must establish requirements that are necessary to attain and maintain healthy, sustainable ecosystems. It must be flexible enough for States and Tribes to ensure that standards are protecting water quality in a way that makes sense. EPA seeks to avoid a program that results in costly requirements that have little or no environmental benefit. Thus EPA intends to use its experience and that of the States, Tribes, municipalities, the regulated community, environmental groups and the general public in implementing and utilizing water quality standards over the last fourteen years, to evaluate the regulation and determine if changes are needed to allow greater State, Tribal and local flexibility to develop innovative, cost effective ways to protect water quality. EPA may determine through the ANPRM process that the concepts described above can be better integrated into water quality management decision making through development of new or revised policies and guidance rather than revisions to the regulation. Because of this possibility, EPA is reserving its decision whether to propose and finalize revisions to the regulation. At minimum, EPA believes that any revisions to the water quality standards regulation should result in a regulation that can be used to render protective, tailored, site specific water qualitybased decisions that bear reasonable compliance costs for the regulated community, as well as reasonable implementation costs for States, Tribes and EPA. At the same time, the regulation should allow sufficient flexibility to States and Tribes, if they choose, to implement water quality standards programs in a manner that is no more burdensome than under the existing regulation.

B. Objectives In publishing this ANPRM, EPA is beginning a review of the regulation in a public forum in an attempt to identify possible amendments to the regulation, and new guidance or policy that may be needed to address three distinct objectives. They are: ( 1) to eliminate any barriers and develop incentives to enhance State and Tribal implementation of watershed based water quality planning and management; ( 2) to enhance State and Tribal capability to incorporate current criteria and water quality assessment science into their water quality standards programs, and; ( 3) to improve the regulation so that it may be implemented more efficiently and effectively ( including cost effectively). Meeting these three objectives, EPA believes, will facilitate further water 36745 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules quality improvements locally and nationally. EPA urges commenters to keep all three main objectives in mind when reviewing, analyzing and commenting on this ANPRM.

II. Introduction to Water Quality Standards A. Statutory History The first comprehensive legislation for water pollution control was the Water Pollution Control Act of 1948 ( Pub. L. 845, 80th Congress). This law adopted principles of State Federal cooperative program development, limited federal enforcement authority, and limited federal financial assistance. These principles were continued in the Federal Water Pollution Control Act ( Pub. L. 660, 84th Congress) in 1956 and in the Water Quality Act of 1965. Under the 1965 Act, States were directed to develop water quality standards establishing water quality goals for interstate waters. By the early 1970' s, all the States had adopted such water quality standards. Since then, States have revised their standards to reflect new scientific information, the impact on water quality of economic development and the results of water quality controls. Due to enforcement complexities and other problems, an approach based solely on water quality standards was deemed too weak to make a difference. The purely water quality based approach prior to 1972 lacked enforceable Federal mandates and standards, and a strong impetus to implement plans for water quality improvement. The result was an incomplete program that in Congress' view needed strengthening. In the Federal Water Pollution Control Act Amendments of 1972 ( Pub. L. 92   500, Clean Water Act or CWA), Congress established the National Pollutant Discharge Elimination System ( NPDES) whereby each point source discharger to waters of the U. S. is required to obtain a discharge permit. The 1972 Amendments required EPA to establish technology based effluent limitations that are to be incorporated into NPDES permits. In addition, the amendments extended the water quality standards program to intrastate waters and required NPDES permits to be consistent with applicable State water quality standards. Thus, the CWA established complementary technologybased and water quality based approaches to water pollution control. Now, after nearly 25 years of investment in technology based controls and some $ 70 billion in sewage treatment plant construction, attention is turning back to water quality standards as a mechanism to make improvements in water quality beyond those that have been achieved through technologybased controls. Water quality standards serve as the foundation for the water quality based approach to pollution control and are a fundamental component of watershed management. Water quality standards are State or Tribal law or regulation that: define the water quality goals of a water body, or segment thereof, by designating the use or uses to be made of the water; set criteria necessary to protect the uses; and protect water quality through antidegradation provisions. Although the CWA gives EPA an important role in determining appropriate minimum levels of protection and providing national oversight, it also gives considerable flexibility and discretion to States and Tribes to design their own programs and establish levels of protection above the national minimum. States and Tribes adopt water quality standards to protect public health or welfare, enhance the quality of water, and serve the purposes of the Act. `` Serve the purposes of the Act'' ( as defined in Sections 101( a), 101( a)( 2), and 303( c) of the Act) means that water quality standards should: ( 1) include provisions for restoring and maintaining chemical, physical, and biological integrity of State and Tribal waters, ( 2) provide, wherever attainable, water quality for the protection and propagation of fish, shellfish, and wildlife and recreation in and on the water (`` fishable/ swimmable''), and ( 3) consider the use and value of State and Tribal waters for public water supplies, propagation of fish and wildlife, recreation, agricultural and industrial purposes, and navigation. See 40 CFR 131.2. Section 303( c) of the CWA establishes the basis for the current water quality standards program. Section 303( c): 1. Defines water quality standards; 2. Identifies acceptable beneficial uses: public water supply, propagation of fish and wildlife, recreational purposes, agricultural and industrial water supplies and navigation; 3. Requires that State and Tribal standards protect public health or welfare, enhance the quality of water and serve the purposes of the Act; 4. Requires that States and Tribes review their standards every three years; 5. Establishes the process for EPA review of State and Tribal standards, including where necessary the promulgation of a superseding Federal rule in cases where a State's or Tribe's standards are not consistent with applicable requirements of the CWA or in situations where the Administrator determines that Federal standards are necessary to meet the requirements of the Act. The decade of the 1970' s saw State and EPA attention focus on creating the infrastructure necessary to support the NPDES permit program and development of technology based effluent limitations. While the water quality standards program continued, it was a low priority in the overall CWA program. In the early 1980' s, it began to be recognized that greater attention to the water quality based approach to pollution control would be needed to effectively protect and enhance all of the nation's waters. The first statutory evidence of this was the enactment of a CWA requirement that after December 29, 1984, no construction grant could be awarded for projects that discharged into stream segments which had not, at least once since December 1981, had their water quality standards reviewed and revised or new standards adopted as appropriate under Section 303( c). ( Public Law 97   117, Section 24, `` Revised Water Quality Standards.'') The efforts by the States to comply with this one time requirement essentially made the States' water quality standards current as of that date for segments with publicly owned treatment works ( POTWs) discharging into them. Additional impetus to the water quality standards program occurred on February 4, 1987, when Congress enacted the Water Quality Act of 1987 ( Pub. L. 100   4). Congressional impatience with the lack of progress in State adoption of standards for toxics ( which had been a national program priority since the early 1980' s) resulted in the 1987 adoption of new water quality standard provisions in the Water Quality Act amendments. These amendments reflected Congress' conclusion that toxic pollutants in water are one of the most pressing water pollution problems. One concern Congress had was that States were relying, for the most part, on narrative criteria to control toxics ( e. g., `` no toxics in toxic amounts''), which made development of effluent limitations in permits difficult. To remedy this, Congress adopted section 303( c)( 2)( B), which essentially required development of numeric criteria for those water body segments where toxic pollutants were likely to adversely affect designated uses. The 1987 Amendments gave new teeth to the control of toxic pollutants. As Senator Mitchell put it, Section 303( c)( 2)( B) requires `` States to identify waters that do not meet water quality 36746 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules standards due to the discharge of toxic substances, to adopt numerical criteria for the pollutants in such waters, and to establish effluent limitations for individual discharges to such water bodies.'' ( From Senator Mitchell, 133 Cong. Rec. S733.) To assist States in complying with Section 303( c)( 2)( B), EPA issued program guidance in December 1988 and instituted an expanded program of training and technical assistance. Section 518 was another major addition in the 1987 Amendments to the Act. This section extended participation in the water quality standards and 401 certification programs to certain Indian Tribes. The Act directed EPA to establish procedures by which a Tribe could `` qualify for treatment as a State,'' at its option, for purposes of administering the standards and 401 certification programs. The Act also required EPA to create a mechanism to resolve disputes that might develop when unreasonable consequences arise from a Tribe and a State or another Tribe adopting different water quality standards on common bodies of water. Furthermore, with the 1987 Amendments, the Act explicitly recognized EPA's antidegradation policy for the first time. The intent of the antidegradation policy in EPA's regulation was and is to protect existing uses and the level of water quality necessary to protect existing uses and to provide a means for assessing activities that may impact high quality waters and ruling on whether such projects could proceed. Section 303( d)( 4) of the Act requires that water quality standards in those waters that meet or exceed levels necessary to support designated uses `` may be revised only if such revision is subject to and consistent with the antidegradation policy established under this section.''

B. Regulatory History In the late 1960' s and early 1970' s the water quality standards program was initiated and administered based on minimal guidance and Federal policies   many of which are still reflected in the water quality standards program today. EPA first promulgated a water quality standards regulation in 1975 ( 40 CFR 130.17, 40 FR 55334, November 28, 1975) as part of EPA's water quality management regulations mandated under Section 303( e) of the Act. As discussed earlier, the standards program had a relatively low priority during this time. This was reflected in the minimal requirements of the first Water Quality Standards Regulation. Few requirements on designating water uses and procedures were included. The Regulation was general, requiring `` appropriate'' water quality criteria necessary to support designated uses and incorporating the antidegradation policy. Toxic pollutants or any other specific criteria were not mentioned. Some States developed detailed water quality standards regulations while others adopted only general provisions which proved to be of limited use in the management of increasingly complex water quality problems and created disparities in requirements on regulated entities. The few water quality criteria that were adopted addressed a limited number of pollutants and primarily described fundamental water quality conditions ( e. g., pH, temperature, dissolved oxygen and suspended solids) or dealt with conventional pollutants. In the late 1970s, EPA determined that existing State water quality standards needed to be better developed. EPA moved to strengthen the water quality program to complement the technology based controls. EPA amended the Water Quality Standards Regulation to explicitly address toxic criteria requirements in State standards and other legal and programmatic issues. November 8, 1983 ( 54 FR 51400). This regulation is more comprehensive than its predecessor and includes more specific regulatory and procedural requirements. The 1983 regulation created the concept of use attainability analysis, added detail on the adoption of numeric criteria including authorization for site specific criteria, and listed specific procedural requirements and definitions not included in the original 1975 regulation. The regulation specified the roles of the States and EPA and the administrative requirements for States in adopting and submitting their standards to EPA for review. It also delineated the EPA requirements for review of State standards and promulgation of federal standards. The 1983 regulation provided States ( and subsequently in 1991) Tribes with the option of refining their use designation process by allowing them to establish subcategories of uses, such as cold water and warm water aquatic life designations. The 1983 regulation also clarified that States ( and subsequently Tribes) may adopt discretionary policies affecting the implementation of standards, such as mixing zones, low flows, and variances. In support of the 1983 Regulation, EPA simultaneously issued program guidance entitled Water Quality Standards Handbook ( December, 1983). The Handbook provided guidance on the interpretation and implementation of the Water Quality Standards Regulation. This document also contained information on scientific and technical analyses that are used in making decisions that would impact water quality standards. EPA also developed the Technical Support Document for Water Quality Based Toxics Control ( EPA 44/ 4   85   032, September, 1985) ( TSD) which provided additional guidance for implementing State water quality standards. In 1991, EPA revised and expanded the TSD. ( EPA 505/ 2   90   001, March 1991). In 1994, EPA issued the Water Quality Standards Handbook: Second Edition ( EPA   823   B   94   006, August 1994). To accelerate compliance with CWA section 303( c)( 2)( B) ( created by the 1987 Water Quality Act), EPA started action in 1990 to promulgate numeric water quality criteria for those States that had not adopted sufficient water quality standards for toxic pollutants. The intent of the rulemaking, known as the National Toxics Rule, was to strengthen State water quality management programs by increasing the level of protection afforded to aquatic life and human health through the adoption of all available criteria for toxic pollutants listed under 307( a) of the CWA ( priority pollutants) present or likely to be present in State waters. This action culminated on December 22, 1992, with EPA promulgating Federal water quality criteria for priority toxic pollutants for 14 States and Territories ( see 57 FR 60848). Subsequent to the promulgation of criteria under the National Toxics Rule, EPA altered its national policy on the expression of aquatic life criteria for metals. On May 4, 1995 at 60 FR 22228, EPA issued a stay of several metals criteria ( expressed as total recoverable metal) previously promulgated under the National Toxics Rule for the protection of aquatic life. EPA simultaneously issued an interim final rule that changed these metal criteria promulgated under the National Toxics Rule from the total recoverable form to the dissolved form. The Water Quality Standards Regulation was amended in 1991 to implement Section 518 of the Act to expand the standards program to include Indian Tribes ( 56 FR 64893, December 12, 1991). EPA added 40 CFR 131.7 to describe the requirements of the issue dispute resolution mechanism ( to resolve unreasonable consequences that may arise between a Tribe and a State or another Tribe when differing water quality standards have been adopted for a common body of water) and 40 CFR 131.8 to establish the 36747 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules procedures by which a Tribe applies for authorization to assume the responsibilities of the water quality standards and section 401 certification programs. Fourteen years since its last major revision, the water quality standards regulation is undergoing review and potential revision in light of experiences gained in its implementation by States, Tribes, EPA and the public. The review is intended to reflect the changing nature of the program and to identify specific changes that will strengthen water quality protection and restoration, facilitate watershed management initiatives, and incorporate evolving water quality criteria and assessment science into water quality standards programs. Based on the review and the comments expected on the ANPRM, EPA may decide to revise parts of the regulation and/ or change some of its existing policies and guidance for the water quality standards program. Water quality standards are essential to a wide range of surface water activities, including: ( 1) setting and revising water quality goals for watersheds and/ or individual water bodies, ( 2) monitoring water quality to provide information upon which water quality based decisions will be made, ( 3) calculating total maximum daily loads ( TMDLs), waste load allocations ( WLAs) for point sources of pollution, and load allocations ( LAs) for natural background and nonpoint sources of pollution, ( 4) developing water quality management plans which prescribe the regulatory, construction, and management activities necessary to meet the water body goals, ( 5) calculating NPDES water quality based effluent limitations for point sources, in the absence of TMDLs, WLAs, LAs, and/ or water quality management plans, ( 6) preparing various reports and lists that document the condition of the State's or Tribe's water quality, and ( 7) developing, revising, and implementing an effective section 319 management program which outlines the State's or Tribe's control strategy for nonpoint sources of pollution.

Note: The term `` State'' as used in this Notice refers to the fifty States, all Territories of the United States, and the District of Columbia. The term `` Tribe'' or `` Tribal'' as used in this Notice generally refers to all Indian Tribes authorized to administer the water quality standards. On occasion, the term `` Tribe'' or `` Tribal'' refers to Indian Tribes that are eligible to seek authorization to administer the water quality standards, but have not yet secured such authorization. There are some parts of the law and regulation where `` State'' is now interpreted to mean `` State or Tribe.'' C. Water Quality Guidance for the Great Lakes System On March 23, 1995, EPA published in the Federal Register its Water Quality Guidance for the Great Lakes System ( 60 FR 15366, March 23, 1995) ( Great Lakes Guidance). The Guidance consists of water quality criteria for 29 pollutants to protect aquatic life, wildlife, and human health, and detailed methodologies to develop criteria for additional pollutants; implementation procedures to develop more consistent, enforceable water quality based effluent limits in discharge permits, as well as TMDLs of pollutants that can be allowed to reach the Great Lakes and their tributaries from all sources; and antidegradation policies and procedures. Section 118( c)( 2) of the Clean Water Act ( CWA) ( Pub. L. 92   500 as amended by the Great Lakes Critical Programs Act of 1990 ( CPA), Pub. L. 101   596, November 16, 1990) required EPA to publish proposed and final water quality guidance on minimum water quality standards, antidegradation policies, and implementation procedures for the Great Lakes System. EPA responded to these requirements by initiating a rulemaking, publishing the Proposed Water Quality Guidance for the Great Lakes System ( proposed Guidance) in the Federal Register on April 16, 1993 ( 58 FR 20802). EPA also published four subsequent documents in the Federal Register identifying corrections and requesting comments on additional related materials. EPA received over 26,500 pages of comments, data, and information from over 6,000 commenters in response to these documents and from meetings with members of the public. After reviewing and analyzing the information in the proposal and these comments, EPA developed and published the Great Lakes Guidance, codified at 40 CFR Part 132. Part 132 contains six appendixes of detailed methodologies, policies, and procedures. Detailed discussion of the final Guidance is provided in `` Final Water Quality Guidance for the Great Lakes System: Supplementary Information Document'' ( SID), ( EPA, 1995, 820   B   95   001) and in additional technical and supporting documents which are available in the docket for the rulemaking. Copies of the SID and other supporting documents are also available from EPA in electronic format, or in printed form for a fee upon request. Developing the Great Lakes Guidance was an enormous effort based on extensive public comment and analysis on some of the same issues that are addressed in this ANPRM. One principal difference between the provisions in the Great Lakes Guidance and the regulation, policy and guidance that is the subject of this ANPRM is that where the Great Lakes Guidance addressed programs in the Great Lakes States only, this ANPRM addresses the national water quality standards regulation and program, and thus the programs of all States and Tribes with water quality standards authority. Where the Great Lakes Guidance addressed an issue or issue area that is also addressed in the ANPRM, that analysis and conclusion may or may not be relevant to the discussion of the national program. Where it is, today's ANPRM identifies the specific relevant Great Lakes Guidance provisions in the specific issue discussions. Many of the provisions in the Great Lakes Guidance were developed to address the unique problems in the Great Lakes Basin that stem from known contamination by bioaccumulative chemicals and the long retention time of water in the Lakes. Commenters should keep in mind that the Great Lakes provisions were derived for States that are in the Great Lakes Basin in whole or part and should consider the uniqueness of the Great Lakes Basin when evaluating Great Lakes Guidance provisions for application outside of the Great Lakes Basin.

III. Program Areas for Public Comment A. Introduction Entering its 33rd year, the water quality standards program has begun to evolve from one with a narrow focus on establishing water body uses and adopting chemical criteria for basic water quality characteristics addressing the most obvious sources of pollution to a more comprehensive program. In recent years the scientific community has developed greater knowledge of the full range of stressors adversely impacting surface waters. EPA believes the water quality standards program should evolve to keep pace with expanding science to address water quality problems in a more comprehensive way, accommodating more specific and sophisticated water use classifications, criteria for more pollutants, new forms of criteria and companion ecological and health indicators, and closer integration with other programs. At the same time, EPA realizes that such an evolution could require a significant increase in analytical resources from States, Tribes and the regulated community, and that changes to the existing program must be structured in a way that is workable. 36748 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules This is an appropriate time to begin a structured national debate aimed at identifying the focused changes necessary to strengthen the underpinnings of water quality standards and implementation. In the fourteen years since the regulation was last revised, there have been numerous scientific developments, statutory changes, court decisions, and implementation issues affecting the water quality standards program. The shift in program focus beyond just chemical contamination to include ecosystem protection and watershed approaches necessitates reexamining basic program concepts. In addition, there is an opportunity to address possible barriers to effective water quality improvements where it is determined that regulatory changes are possible under existing law. In recent years, EPA has heard from the States and Tribes as well as the environmental and regulated communities regarding the necessity and focus of a revision to the water quality standards regulation. As indicated by the wide range of issues and options presented in this advance notice, views of the different stakeholder groups often differ considerably. Many stakeholders believe that a revised regulation is needed for continued improvements in water quality protection. Others believe changes are needed to allow more flexible, cost effective approaches by States and Tribes. Conversely, many stakeholders have said that the regulation is sufficient and does not need to be reviewed. A key issue presented here relates to the degree of specificity necessary should EPA revise the regulation. There are many who support a more flexible regulation to allow States and Tribes to address new and changing circumstances. Under a more flexible regulation, States and Tribes could more easily tailor their programs to deal with pressing water quality restoration and protection needs that are not well addressed presently. Others support a regulation with more specific regulatory requirements. The latter would promote a more consistent minimal level of protection in State and Tribal water quality standards, provide more clarity on standards issues, and serve as a stronger tool in encouraging States and Tribes to take appropriate restoration and protection actions. EPA urges commenters to consider the appropriate balance between flexibility, national consistency, and consistency within States and Tribes when commenting on any of the ideas presented in this notice. One of the outcomes of this ANPRM and follow on actions can be establishment of a clearer set of national minimum policies and implementation procedures on which EPA will reliably and predictably base its approval and disapproval decisions on State and Tribal water quality standards submittals. EPA remains committed to making consistent decisions from State to State and Tribe to Tribe and State to Tribe to meet our obligation to ensure an appropriate level of protection nationally and that the goals of the Act are achieved. Clarifying these national norms will serve to better articulate the norms of protection from State to State and Tribe to Tribe and State to Tribe and also to clarify national norms of flexibility. Defining the appropriate level of consistency, in turn, defines the appropriate degree level of flexibility. In addition, establishing norms of consistency and flexibility should help to resolve State or Tribal differences with EPA on water quality standards early in the process, before the approval/ disapproval stage. While the following discussion describes specific areas and issues for public review, the public is welcome to comment on any aspect of the water quality standards program. EPA emphasizes, however, that publication of this Notice does not commit the Agency to proceeding with a regulatory change. EPA has not decided whether it will, in fact, propose regulatory amendments, and, if proposed, how extensive that effort might be. This decision will be made after considering the comments received and the need to address other priority activities as well as any Congressional and Executive Branch directives. A potential outcome of this public review may be additional guidance and/ or policies rather than regulatory changes. EPA has not determined the next steps it will take after evaluation of all the comments received on this ANPRM. It is likely that any follow on proposed rule to amend 40 CFR 131 would focus on a relatively narrow set of issues and that many other issues could be resolved through policy and guidance. EPA requests that commenters identify the five to seven issues considered highest priority for possible regulatory amendments. The summary section at the end of this notice contains a brief summary of the potential changes to the water quality standards regulation that are discussed and considered in this ANPRM. The list of potential changes includes the full range of potential changes to the regulation on which EPA is specifically requesting comment. Each potential change to the regulation is discussed in detail in the corresponding section of the ANPRM.

B. Uses 1. Background Section 131.10 of the current regulation describes States' and authorized Tribes' responsibilities for designating and protecting uses. The regulation requires that States and Tribes specify the water uses to be achieved and protected; requires protection of downstream uses; allows for sub category and seasonal uses, for instance, to differentiate between cold water and warm water fisheries; sets out minimum attainability criteria; lists six factors of which at least one must be satisfied to justify removal of designated uses which are not existing uses; prohibits removal of existing uses; establishes a mandatory upgrading of uses which are existing but not designated; and establishes conditions and requirements for conducting use attainability analyses. These provisions make a distinction between existing and designated uses and set out specific requirements to ensure protection of these two broad use categories. Designated uses are defined as those uses specified in water quality standards for each water body or segment whether or not they are being attained. EPA interprets existing uses as those uses actually attained in the water body on or after November 28, 1975 ( the date of EPA's initial water quality standards regulation), whether or not they are included in water quality standards. 40 CFR 131.3( e). Designated uses focus on the attainable condition while existing uses focus on the past or present condition. Section 131.10 then links these two broad use categories in a manner which intends to ensure that States and Tribes designate appropriate water uses, reflecting both the existing and attainable uses of each water body. For this discussion it is important to consider both the distinction between and linkage of designated and existing uses. It is in designating uses that States and Tribes establish the environmental goals for their water resources, and it is in designating uses that States and Tribes are allowed to evaluate the attainability of those goals. Because water quality standards perform the dual function of establishing water quality goals and ultimately serving as the regulatory basis for water qualitybased treatment controls and strategies, typically, although not exclusively, via water quality criteria protecting those uses, a State or Tribe often weighs the environmental, social and economic 36749 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules consequences of its decisions in designating uses. The regulation allows the State or Tribe some flexibility in weighing these considerations and adjusting these goals over time. Reaching a conclusion on the uses that appropriately reflect the potential for a water body, determining the attainability of those goals, and appropriately evaluating the consequences of a designation, however, can be a difficult and controversial task. Appropriate application of this process involves a balancing of environmental, scientific, technical, and economic and social considerations as well as public opinion and is therefore one of the most challenging areas of the current regulation. To direct this decision makingprocess the regulation establishes requirements that must be followed when designating uses or concluding that attaining a use is infeasible. When performing this attainability analysis, a State or Tribe considers physical, chemical, biological and economic factors that may limit the potential for achieving the goal use. EPA's current water quality regulation effectively establishes a `` rebuttable presumption'' that `` fishable/ swimmable'' uses are attainable and therefore should apply to a water body unless it is affirmatively demonstrated that such uses are not attainable. EPA believes that the rebuttable presumption policy reflected in these regulations is an essential foundation for effective implementation of the Clean Water Act as a whole. The `` use'' of a water body is the most fundamental articulation of its role in the aquatic and human environments, and all of the water quality protections established by the CWA follow from the water's designated use. This approach preserves States' and Tribes' paramount role in establishing water quality standards, in this instance, in weighing any available evidence regarding the attainable uses of a particular water body. The rebuttable presumption approach does not restrict the discretion that States and Tribes have to determine that `` fishable/ swimmable'' uses are not, in fact, attainable in a particular case. Rather, if the water quality goals articulated by Congress are not to be met in a particular water body, the regulations simply require that such a determination be based upon a credible, `` structured scientific assessment'' of use attainability. Because there is a presumption that the uses specified in sections 101( a)( 2) and 303( c) of the Clean Water Act are attainable ( protection and propagation of fish, shellfish and wildlife and recreation in and on the water [ 101( a)( 2)]; public water supplies, propagation of fish and wildlife, recreational purposes, agricultural purposes, and navigation [ 303( c)( 2)( A)]), the criteria for overcoming that presumption are carefully circumscribed. The economic use removal test, for example, requires a showing that the cost of compliance with the use( s) would result in `` substantial and widespread economic and social impact.'' This is a high threshold to ensure that the interim goals of section 101( a)( 2) and the section 303( c) uses are not abandoned without appropriate cause. The general construction of the § 131.10 requirements for designating uses, supplemented with specific Agency guidance, has worked well in most situations over the last 14 years, and the use designation process is well established in State and Tribal water quality standards programs. There are, however, a number of new issues that have arisen since the 1983 regulation was promulgated. Often these new issues are associated with site specific decision making, and EPA expects the trend toward site specific application of water quality standards will accelerate as States and Tribes begin implementing watershed protection programs, using field biological information to more precisely describe aquatic communities to be protected or restored, and applying new watershed or ecosystem specific approaches to criteria development. As explained in the `` Objectives'' discussion in this document, one of the principal reasons for this notice is to determine whether or not the current regulation is sufficiently flexible to accommodate an expected shift in program emphasis beyond chemical contaminants to ecosystem protection and watershed approaches that will necessarily place greater emphasis on integrated assessments of both chemical and non chemical stressors and watershed specific decision making. While it is important to identify potential barriers to needed flexibility, commenters should identify, as well, any changes or clarification that may be needed to ensure that an appropriate level of national consistency is maintained across and within all jurisdictions. In this section of the notice, EPA seeks comment on the following issues: ( 1) refined designated uses with more focus on watersheds and ecosystems, ( 2) existing uses, ( 3) attainability and removal of designated uses, and ( 4) alternatives to removal of designated uses. 2. Refined Designated Uses The current regulation at 40 CFR 131.10( a), based on section 303 of the CWA, requires that States and authorized Tribes specify appropriate water uses to be achieved and protected, taking into consideration the use and value of water for public water supplies, protection and propagation of fish, shellfish and wildlife, recreation in and on the water, agricultural, industrial, and other purposes including navigation. The regulation also allows, but does not require, States and Tribes to identify more specific sub categories of these general use categories. Over the years, States and Tribes have created many different use classification systems ranging from a straightforward replication of uses specifically listed in section 303 of the Act to more complex systems that express designated uses in very specific terms or establish subclassifications which identify different levels of protection. For example, some States simply specify `` water supply'' as a use classification applicable throughout the State while others may identify several specific sub categories related to the quality of the raw water supply and anticipated treatment requirements. Similarly, some States designate general `` aquatic life'' uses while others list a variety of subcategories based on a range of aquatic community types which may include descriptions of core aquatic species representative of each sub category. Although a variety of approaches have evolved and become established in State and Tribal programs, the current regulation is not specific about the level of precision States or Tribes must achieve in designating uses. There are advantages and drawbacks for either the general or specific use classification systems and it is not clear that either is necessarily superior in ensuring full protection of State or Tribal water quality. There is, however, a need for the use designation process, whether implementing a general or specific classification system, to clearly articulate and differentiate intended levels of protection with enough specificity so that decision makers can appropriately develop and implement the standards on a site or watershedspecific basis and so that the public can understand, identify with, and influence the goals set for waters they care about. Lack of precision in uses and criteria assigned to protect those uses can inadvertently result in either a lesser or greater level of protection than was actually intended when the water quality standards were adopted. Although the designated use specificity 36750 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules issue may apply to any of the Section 303 general use categories, it may be most relevant for aquatic life uses. Aquatic communities can vary significantly from water body to water body. As noted above, however, State and Tribal use classifications generally do not reflect the variability among aquatic community types and may list, instead, very general descriptions such as `` aquatic life'' as the designated use. Where this is the case, it is possible that measurable changes in aquatic community composition or production could occur at a specific site and still satisfy the definition of `` aquatic life,'' unless somewhere in its process the State or Tribe has documented information about its specific intent in applying the `` aquatic life'' classification to each water body. For example, an activity that causes the discharge of sediment, altering the physical habitat in the receiving water body, could result in a measurable change in aquatic community structure and function ( e. g., the types of aquatic species found in that segment). Yet, that activity may arguably satisfy a general `` aquatic life'' use protection requirement simply because of a lack of specificity in the regulatory description of that designated use. In this case, lack of precision in the designation or description of the use could result in under protection of the resource, unless somewhere in the State or Tribal process an intended level of protection is specified. Alternatively, lack of precision in uses and assigned criteria could result in standards that are over protective, resulting in application of unnecessary control requirements. In assigning criteria to protect general use classifications, a State or Tribe must ensure that the criteria are sufficiently protective to safeguard the full range of waters in the State or Tribe ( i. e., criteria would be based on the most sensitive use). While this approach will result in full protection of all State or Tribal waters, the approach has been challenged, especially for aquatic life uses, where evidence suggests that the general use and criteria will require controls more stringent than needed to protect either the existing or potential aquatic community for a specific water body. Although EPA supports broad application of statewide or tribe wide criteria to ensure that sensitive uses are protected where site specific information is lacking, the Agency's current thinking is that there is a growing need to more precisely tailor use descriptions and criteria to match site specific conditions, ensuring that uses and criteria provide an appropriate level of protection which, to the extent possible, is neither over nor under protective. This concept was reflected in the Agency's 1994 Combined Sewer Overflow Policy ( 59 FR 18688). The level of protection issue is one of both use and criteria. To have a meaningful effect, a more precise use description must be accompanied by more focused criteria, appropriately tailored to the refined use description. EPA recognizes that, at present, national or statewide or tribe wide criteria generally are not sufficiently precise to distinguish among all of the various sub categories of uses. As water quality standards issues become more watershed specific or site specific, however, the trend will very likely be toward more specific use descriptions and; because the essential purpose of the criteria is to describe, evaluate attainment of, and protect the designated use; more site specific criteria development. A potential constraint for refining the aquatic life uses would be the resource commitment often associated with developing a comprehensive biological database. Because of the resource constraints, it may be difficult for a State or Tribe to develop designated uses ( or use descriptions) for each segment that include a detailed biological description of the aquatic community to be protected. Simply from a practical standpoint, it may be more workable to reserve such precise determinations for watershed specific decision making. Therefore, in highlighting the issue of greater specificity, EPA is suggesting that one, but perhaps not the only, way to resolve this issue is to mandate much greater specificity in a State or Tribal use classification structure. Obviously, there is a need for designated use descriptions in State and Tribal regulation to be defined, at a minimum, with sufficient specificity to ensure existing and potential uses will be protected and/ or attained. The difficulty is in striking a balance between specificity sufficient to ensure uses are appropriately protected and flexibility needed to allow efficient widespread application of a classification system to all State or Tribal waters. A question has been raised about, and EPA is considering, whether or not the current regulation and guidance provide the framework needed to strike the appropriate balance and the guidance on when and how to refine uses.

Aquatic Life An issue related to the manner in which States and Tribes define designated aquatic life uses is the occasional confusion expressed between the actual intent of the CWA section 101( a)( 2) interim goals and the `` fishable/ swimmable'' short hand expression often used to describe those interim goals. EPA acknowledges that the phrase `` fishable/ swimmable'' does not fully describe the intent and scope of the CWA section 101( a)( 2) interim goals. The confusion over the expression `` fishable'' often surfaces where there is an action aimed at removing an aquatic life use from a particular water body where there are no sport or commercial fisheries. In these instances, an argument is often made that the water body does not meet the `` fishable'' intent of the section 101( a)( 2) interim goals because the water body naturally supports only `` minnows'' and/ or aquatic invertebrates. EPA believes this is an unacceptable argument for removing an aquatic life designated use or excluding an aquatic life designated use. As explained in EPA's Questions and Answers on Antidegradation ( USEPA, 1985, p. 3), the Agency considers the protection afforded by standards to focus on an appropriately representative aquatic community whether or not that community includes sport or commercial fish:

The fact that sport or commercial fish are not present does not mean that the water may not be supporting an aquatic life protection function. An existing aquatic community composed entirely of invertebrates and plants, such as may be found in a pristine tributary alpine stream, should be protected whether or not such a stream supports a fishery. Even though the shorthand expression `` fishable/ swimmable'' is often used, the actual objective of the Act is to restore the chemical, physical and biological integrity of our Nation's waters ( Section 101( a)). The term `` aquatic life'' would more accurately reflect the protection of the aquatic community that was intended in Section 101( a)( 2) of the Act.

Thus, EPA's current interpretation of the regulation means that the Agency will not approve State or Tribal action to exclude aquatic life protection based on a conclusion that a water body does not support a `` fishery'', implying a sport or commercial fishery. EPA's current thinking is that it would improve the regulatory text to reflect this interpretation explicitly. More specific to this discussion of refined designated uses is the question of whether or not the Agency should mandate that a minimum `` aquatic life'' use sub category or sub categories be included in all State or Tribal designated use classification systems to ensure appropriate protection of waters 36751 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules which do not support commercial or sport fisheries ( or any fish).

Refined Designated Uses and Use Attainability Requirements There is one additional issue related to the refined designated use discussion that should be addressed. A question has been raised about the applicability of the use attainability requirements when establishing refined designated uses ( with particular emphasis of aquatic life uses). The question raised is: since refined designated uses may be less inclusive than broad designations, will EPA consider development of a more refined use description to be a change in use subject to the use attainability requirements? Under current regulation, the combination of a new use sub category and less stringent criteria triggers the use attainability requirements in § 131.10 of the Federal regulation ( see § 131.10( j)( 2)). However, it is possible that under certain circumstances, this requirement could be modified. Such a modification would focus on the kind of information that should accompany any refined use classification based on a more precise biological description, whether or not formal use attainability assessment requirements apply. Essentially, there are two issues to be addressed: ( 1) does the refined description of the aquatic community reflect the reference condition ( i. e., natural states) for the kinds of waters to which the new classification is to be applied? and ( 2) are any newly proposed criteria scientifically defensible? These are basic questions which would have to be addressed whether or not the use attainability requirements were invoked. As a result, a proposal to refine use categories will have to be accompanied by a rationale explaining how it was determined that the proposed biological description appropriately reflects the potential for waters to which the new sub classification is to be applied. If warranted, this refined description can then serve as the basis for deriving defensible and appropriate criteria specific to the new sub classification.

Request for Comment Refining Use Designations EPA seeks comment on the following questions: 1. The current regulation is not specific about the level of precision States or Tribes must achieve in designating uses. The regulation allows for subcategories of uses, but does not mandate such an approach. Should the regulation be revised to promote or require greater specificity in designated uses, particularly for aquatic life uses, to support watershed specific decisionmaking such as is anticipated in implementing watershed or place based initiatives? 2. Where a State or Tribe utilizes broadly defined designated uses, could the desired level of specificity be adequately addressed in State or Tribal standards that clearly articulate the intent of the designated uses as they would apply to specific waters of the State or Tribe? 3. If EPA were to specify a required level of precision in establishing use categories, what factors should be considered in prescribing a level of specificity? That is, what factors should be considered in striking a balance between specificity sufficient to ensure uses are afforded an appropriate level of protection and flexibility/ efficiency needed to allow widespread application of the classification system? 4. At a minimum, should the regulation require that State and Tribal aquatic life use categories include a subcategory or sub categories that may be assigned to protect aquatic communities that do not include a `` fishery''? Alternatively, should the regulation explicitly reflect EPA's current interpretation of the regulations to the effect that State and Tribal aquatic life classification systems protect a range of aquatic communities whether or not there are sport or commercial fish ( or any fish) present? 5. Should the use attainability requirements in 131.10( j)( 2) be modified to recognize situations where scientifically defensible less stringent criteria may be appropriate for refined uses which reflect the reference condition for particular waters?

3. Existing Uses a. Protection of Existing Uses. The requirement to protect existing uses is addressed in two places in the current regulation   Section 131.10, designation of uses and Section 131.12, antidegradation. ( see discussion of antidegradation, `` tier 1'', in section III. D of this document) As discussed in the background section above, the regulation defines `` existing uses'' as `` those uses actually attained in the water body on or after November 28, 1975, whether or not they are included in the water quality standards.'' ( 40 CFR 131.3( e)) As a result, the focus of existing uses, is on the past or present condition of the water body. Furthermore, by establishing requirements prohibiting the removal of existing uses and ensuring those uses will be appropriately recognized in State and Tribal water quality standards, the current regulation ensures that the better of the past or present condition, at a minimum, will be maintained and protected. Determining whether or not an existing use has occurred in the past or is currently in place is not always a straightforward task, however, and over the years, a number of questions have been raised about exactly what the `` existing use'' provisions in 131.10 require. These questions generally fall into two categories: ( 1) what is the link between existing uses and the State or Tribal use classification system? and ( 2) what is the relationship between existing uses, existing water quality and potential uses, i. e. uses that may be attainable in the water body whether or not those uses are presently designated for the water body or are presently being attained? The first question addresses the relationship between the existing use protection provisions in Section 131.10 and State or Tribal use classification systems. There appears to be some confusion on this point. The confusion seems to center on what may appear to be conflicting mandates   protect what is there and allow no further erosion of water quality, and appropriately designate the existing use in regulation using the established classification system. The existing use definition and the requirement that existing uses be protected suggests to some that the description of existing uses is constrained by the way in which a State or Tribe has described its designated uses in its classification system. That is, they argue that an existing use, to be adequately protected, needs to fit into one of the categories or sub categories established in State or Tribal regulation, and as a result, a decision about whether or not a use is `` existing'' is likewise constrained by the use descriptions and criteria established in that classification system. For purposes of Section 131.10, this is generally the case. Again, this Section of the Federal regulation establishes two requirements with respect to existing use protection: ( 1) a prohibition against removal of a designated use where that use is determined to be an existing use, and ( 2) a requirement that existing uses be protected by State or Tribal regulation. To ensure a workable process, EPA interprets Section 131.10 as necessarily recognizing a linkage between the existing use protection provisions and the established State or Tribal use classification system. This interpretation of the regulatory framework, however, also presumes a responsibility on the part of a State or Tribe to establish a classification system that is sufficiently flexible and/ or 36752 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules encompassing to assure an appropriate level of protection for the anticipated range of existing uses ( see discussion on refined designated uses in this chapter). As explained earlier in the discussion on refined designated uses, a variety of use classification systems has evolved and become established in State and Tribal programs. Although there are likely some advantages to a more refined use classification system when it comes to protecting existing uses ( more precise categories in which to fit the existing use), such a system may not be necessary as long as the State or Tribal standards clearly articulate the intended and appropriate level of protection for existing uses ( again, see discussion of refined designated uses). The following example illustrates the point. An acid bog is a water body type which may be fairly widespread but which, as a classification type, may not appear in many State or Tribal standards. Where the aquatic characteristics of an acid bog are discovered to constitute an existing use, a State or Tribe could: ( 1) establish a classification type and criteria for acid bogs to ensure appropriate protection by way of a specific designation, or ( 2) classify the bog within the existing, general classification system, e. g., warm water aquatic life, and adopt any needed site specific criteria to ensure the existing nature and quality of this specific water resource is protected. Either approach can result in an appropriate level of protection and there may not be a need for States or Tribes to include an `` acid bog'' water body type in their classification system. Under either approach the standards must articulate clearly the intended and appropriate level of protection, ensuring protection of the existing use. It is also important to remember that the existing use provisions in both § § 131.10 and 131.12 must be considered together. The classification requirements in § 131.10 ensure that all existing uses will be recognized and protected through appropriate classification of those water bodies in the standards ( and/ or application of appropriate site specific criteria where the existing classification system is broadly constructed). The antidegradation based existing use protection provision guarantees that individual activities on individual water bodies will be examined to ensure those activities will not eliminate existing uses, whether or not those uses are currently recognized in the State or Tribal standards. The antidegradation provisions, through the general requirement that existing uses be protected, ensure immediate protection from specific activities which may threaten the existing use, and the classification requirements ensure recognition and longer term protection from any present or future stressors through specific designation in the standards. Both these provisions apply and should not be considered in isolation. Together they constitute the existing use protection requirements, ensuring the existing uses and water quality to support those uses are maintained and protected. The second question addresses the relationship between existing uses, existing water quality and potential uses. The Agency's guidance, Questions and Answers on Antidegradation, August, 1985 ( Notice of Availability, 50 FR 34546, August 26, 1985 [ included as appendices to Water Quality Standards Handbook, cited above]) addresses this issue, in part. The answer to `` question 7'' states: `` an existing use can be established by demonstrating that fishing, swimming, or other uses have actually occurred since November 28, 1975, or that the water quality is suitable to allow such uses to occur ( unless there are physical problems which prevent the use regardless of water quality).'' Using an example of a healthy shellfish community which is not currently being harvested, the answer goes on to explain that the existence of a use ( past or present) is not dependent solely upon a demonstration that the use is being satisfied in a functional sense ( i. e., in this case, the shellfish harvested). In this example, `` shellfish harvesting'' is considered an existing use, even though there is presently no harvesting underway, because the water quality and habitat support a healthy shellfish community suitable for harvesting. The answer further explains that to assume otherwise ``* * * would be to say that the only time an aquatic protection use ` exists' is if someone succeeds in catching fish.'' As illustrated in this example, the existing use question must address both the current or past functional use and the current or past ( since November 28, 1975) water quality, and the intent of the regulation is to ensure the existing use and the water quality necessary to support that use are maintained and protected. Thus, in this example, the shellfish harvesting use is to be protected by designated uses in water quality standards. The shellfish example is a good one in that it clearly illustrates EPA's position that an existing use finding can be made either where the use is or has been `` actually attained'' or where the water quality necessary to support the use is in place even if the use, itself, is not currently established, as long as other site specific factors, for example physical problems like flow or substrate, would not, despite the suitable water quality, prevent attainment of the use. The `` other factors'' caution is important in understanding EPA's position on existing uses. In making an existing use determination, there is a link between the use and water quality. To be considered an existing use, the use must have been actually attained in the past, is now attained or water quality is sufficient to support the use. However, for some sites, water quality, alone, may be an insufficient basis for making an existing use finding if there are other factors that would prohibit the use from taking place regardless of the quality of the water at a site. In the shellfish example, the necessary water quality is present, and there are no obvious limiting factors which would prohibit present or future shellfish harvesting. Although this example is useful in illustrating important principles in implementing existing use protection requirements, it is a rather straightforward example. An appropriate resolution of the existing/ designated use issue may be somewhat less clear cut where either the existing water quality or the existing use is marginal ( i. e., it is difficult to determine whether or not the use is actually attained, or whether or not there are factors, other than water quality, that could prohibit the use). It is in addressing these situations that questions have been raised about what the current regulation requires. A principal difficulty in addressing these questions may lie in resolving the linkage between the present and past conditions protected by the `` existing uses'' provisions and the attainable or potential condition protected by `` designated uses'' provisions. It may be useful to evaluate this issue by considering the link between existing and designated uses established in the current regulation. Obviously, any decision about whether or not a use is an `` existing use'' must be a water body specific determination. The existing use determination is, therefore, site specific, and decisions should consider water quality and other limiting factors such as the physical habitat specific to a particular water body. A few examples may help illustrate the issue. A somewhat common existing use question applies to primary contact recreation: if a few people on a few occasions `` swim'' in a water body that does not have the quality or physical characteristics to support swimming, is this an existing use, even if the water body is posted `` no swimming'' due to 36753 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules bacterial contamination and lacks the physical features to actually support swimming? The straightforward answer to this question is that `` swimming'' is not an existing use because the present ( or past) condition does not support that use. This conclusion is based on the very limited actual `` use'' and, more importantly, the lack of suitable water quality and physical characteristics that would support a recreational swimming use now or in the future ( as determined by the water quality requirements and recreational swimming considerations, including safety considerations, in the State or Tribal classification system for primary contact recreation). A question has been raised as to how to interpret the regulation in the context of this example. One could determine that because the water body is not suitable for swimming, and has not been since 1975, primary contact recreation is not an existing use. Alternatively, one could determine primary contact recreation to be an existing use because the water body was actually used for swimming, even though the use was occasional and water quality and physical characteristics were not acceptable to support such a use. EPA believes the first alternative is the better interpretation of Agency regulations and guidance in this example, because the use is not established and the water quality and other factors would appear to prohibit actually attaining a recreational swimming use. Stating that this is an appropriate interpretation of the regulation means that EPA would not object if a State or Tribe reached a conclusion, in a similar case, that this was not an existing use. As noted above, however, existing use decisions are very site specific, and it is possible that, on a specific water body under similar circumstances, a different conclusion could be reached by a State or Tribe based on public comment at a hearing and a decision to take a protective approach to the incidental use for that specific resource. The Federal requirements do not prohibit a State or Tribe from taking a more protective approach than would be required by the water quality standards regulation. Although, in the above example, a State or Tribe could conclude that primary contact recreation is not an existing use, it may well be an attainable use that must be protected as a designated use by the State's or Tribe's water quality standards. This finding would depend on whether the physical condition of the water body is suitable for swimming and whether the water quality problems limiting the use are controllable. ( See 40 CFR 131.10( j) and discussion on use attainability analysis below). The point is that, although the existing use provisions most directly address past or present conditions, decisions about existing uses generally are not made in isolation. With respect to uses contained in CWA Section 101( a)( 2), the regulation links existing and designated uses, and it may be useful to view these provisions as a continuum in examining the broader question of use protection. Some States and Tribes have recognized that continuum in developing use attainability guidance for recreational uses which includes questions about the actual use, existing water quality, water quality potential, recreational facilities, location, safety considerations, physical conditions of the water body, and access Note: access here means restricted access, as in fenced property; access is not intended to suggest the `` remoteness'' of the water body; in EPA's view, remoteness is not a valid basis for an attainability decision on recreation.

When all of these factors are considered, the adopted water quality standards are consistent with both the existing and designated use provisions. For example, suppose a city has created a greenway along a stream that receives wastewater effluent upstream of the greenway and has posted `` no swimming'' signs. The greenway attracts children leading to the inevitable `` unauthorized'' swimming. If the physical condition of the stream is suitable for swimming, the swimming occurs on a frequent basis and the greenway provides recreational facilities and access, the only factor limiting the use may be a water quality problem that in the judgement of the State or Tribe can be controlled to achieve the primary contact use. The linkage between existing and designated uses encourages the evaluation of this full suite of factors in making a decision about whether or not primary contact recreation should be protected. A similar existing use question is often raised for aquatic life uses where the existing aquatic community is impaired as a result of marginal water quality. A common example in the western part of the country is a mountain stream impaired by historic hard rock mining ( with the impacts occurring well before November 28, 1975). Although the physical condition of the stream may represent ideal trout habitat, the trout population may be severely limited, in poor condition or absent as a result of the toxic effects of metals. In its classification system, however, a State or Tribe may describe and designate this type of stream as a `` salmonid spawning'' use based on its physical habitat and potential. For streams such as these, where a few adult trout are present but there is no evidence of younger age classes, the question is asked   is this an existing `` salmonid spawning'' use? Again, the appropriate answer, based on EPA regulations and guidance, is that this is not an existing use ( although it may nonetheless be an appropriate designated use if it has the potential to support salmonid spawning). The current use, matching the classification description, is absent, and the limiting water quality problems have been in existence prior to November 28, 1975. ( This does not mean, necessarily, there is not some existing aquatic life use which would then serve as the regulatory `` floor'' for this water body; see the `` limited'' aquatic life use discussion in the use attainability analysis discussion in this section below and the `` tier 1'' discussion in the antidegradation section, III. D) As in the `` swimming'' example, however, there can be a gradation of conditions, and occasionally it may be difficult to draw a bright line and conclude, with confidence, that this is where the existing use begins. In situations similar to this impaired stream example, where the existing water quality problems are considered controllable by the State or Tribe, arguments have been made on both sides of the existing use issue: the salmonid spawning use is not existing, or the salmonid spawning use is in place, albeit currently at an impaired level. Disputes about the correct interpretation of Agency guidance become even more difficult to resolve where the existing impacts to water quality are not as great as those in the above example. Often streams impacted by historical mining, such as the one described above, are headwater streams. As the water moves downstream, clean water tributaries reduce the effect of the metals contamination, and fish, in number, begin to move into these `` improved'' waters. Nevertheless, many such streams would be considered impaired when compared to unaffected, similar waters ( reference streams). And, despite supporting `` fairly good numbers'' of trout, the existing water quality in such streams often exceeds the chronic and, occasionally, acute standards for metals. In situations such as these, States and Tribes have had difficulty in reaching conclusions about whether or not an existing use, matching the classification, is in place. Because States and Tribes may evaluate existing uses when they are designating uses, threshold existing use 36754 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules determinations may lead to questions about the potential for the water body and the appropriate designated uses for it. EPA's current interpretation is that the existing use should be identified either where the use has taken place or the water quality sufficient to support the use has existed since November 28, 1975, or both. That is to say, State and Tribal existing use decisions can be based on a finding that the use, as defined in the classification system, and/ or the water quality needed to support the use is in place ( and there are no other factors that would prohibit actually attaining the use). This interpretation does not fully address the issue of partially impaired uses. Thus, a fuller explanation may be needed in the regulation or policy of how that interpretation is applied where the use or the water quality may be somewhat impaired. EPA is considering whether changes to the regulation or additional guidance is needed to explain the Agency's position and to offer direction in making such determinations.

Request for Comment on Existing Uses EPA seeks comment on the following questions: 1. Does EPA need to further clarify the existing use protection provisions in § 131.10, more clearly explaining that existing uses are defined by the uses made of water bodies and existing water quality, where that quality is or was sufficient to allow the use to occur ( and there are no other limiting factors)? If so, will the clarification require a regulatory amendment or can the needed clarification be accomplished in Agency policy or guidance? 2. Does EPA need to expand its guidance to explain how the current regulation addresses existing use decisions where there is some semblance of a use even though the water quality is insufficient to support the use in, for example a safe or healthful manner? Should this additional guidance clarify the linkage between existing and designated uses? 3. Should the regulatory definition of `` existing use'' at 40 CFR 131.3( e) be modified? If so, how? 4. Use Attainability. a. Attainability of Uses. States and Tribes may remove a designated use, that is not an existing use, if they can demonstrate that attaining the designated use is infeasible. ( 40 CFR 131.10( g)) The current regulation identifies the factors that must be considered in making such a demonstration. As explained in the regulation, existing uses, by definition, are attainable and must be protected by designated uses in water quality standards ( 40 CFR 131.10( h)( 1), 131.10( i) and 131.12( a)( 1)). Further, at a minimum, uses are considered attainable if they can be achieved by implementing effluent limits required under Sections 301( b) and 306 of the Clean Water Act ( Act) and by implementing cost effective and reasonable best management practices ( BMPs) for nonpoint source control. ( 40 CFR 131.10( h)( 2)). These existing uses, technology and BMP provisions establish the basic regulatory threshold test for what the attainable use of a water body is and thus what the minimum use designation for the particular water body must be. Where either the use is existing or the use can be attained through implementation of Clean Water Act technology requirements and/ or implementation of applicable State requirements regarding BMPs for nonpoint source control, 40 CFR 131.10( h) establishes that the use is attainable and must be designated. Once a use is designated, it is presumed to be attainable and may not be removed ( downgraded) unless the State or Tribe can demonstrate that attaining the designated use is not feasible based on one of the six use removal criteria ( 40 CFR 131.10( g)). Therefore, uses are considered attainable if: ( 1) the use is existing; ( 2) the use can be attained through application of CWA technology requirements and/ or State or Tribe required BMPs; or, ( 3) none of the use removal criteria is satisfied. EPA has in the past recommended that these use removal criteria referenced under number 3 above, serve as additional tests, over and above numbers 1 and 2 above, for determining when a use is attainable. Clearly these use removal criteria ( 131.10( g)) are designed to determine whether a use is attainable and therefore can serve that purpose equally effectively when considering whether to remove a designated use ( the situation where they are clearly required to be used) and when considering whether a use is attainable and should be designated. The discussion below on use attainability analysis ( UAA) and non section 101( a)( 2) uses further discusses the relationship between designation of attainable uses, UAAs, and the analysis required to justify use removal. That discussion solicits comment on whether the use removal criteria at § 131.10( g), in addition to being the regulatory justifications for use removal, should, consistent with EPA's interpretation of the regulation, be included in the basic elements of a UAA. Despite what EPA believes are fairly clear guidelines in the current regulation and guidance, questions have been raised about EPA's minimum attainability requirements. The Agency's current thinking is that basic attainability requirements, the methods for demonstrating attainability, the circumstances under which attainability analysis must be done, and what that analysis must consist of should be clarified in the regulation. b. Removal of Designated Uses. The regulation ( at 40 CFR 131.10( g)) specifies that States and Tribes may remove a designated use which is not an existing use if attainment of a use is not feasible due to the following: ( 1) Naturally occurring pollutant concentrations prevent the attainment of a use; or, ( 2) Natural, ephemeral, intermittent, or low flow conditions or water levels prevent the attainment of the use, unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State or Tribal water conservation requirements to enable uses to be met; or, ( 3) Human caused conditions or sources of pollution prevent the attainment of the use and cannot be remedied or would cause more environmental damage to correct than to leave in place; or; ( 4) Dams, diversions or other types of hydrological modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or operate such modification in a way that would result in the attainment of a use; or, ( 5) Physical conditions related to the natural features of the water body, such as the lack of a proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of aquatic life protection uses; or, ( 6) Controls more stringent than those required by Sections 301( b) and 306 of the Act would result in substantial and widespread economic and social impact. The use removal criteria were included in the regulation to address those circumstances where the attainability of certain uses would be precluded by conditions over which the water quality protection provisions in the regulation had little or no control. The uncontrollable conditions considered most likely to limit attainability were: natural water quality or habitat limitations, irretrievable human caused contamination or conditions, or insupportable economic and social costs. These general 36755 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules conditions, then, formed the basis for the six use removal criteria. Although EPA believes the use removal criteria have functioned reasonably well, the growing number and reoccurring nature of the questions raised about these criteria have convinced EPA of the need to review this central element of the program. Some have argued that the six criteria and their interpretation are overly stringent, making any proposal to remove a designated use futile even where a use was `` mistakenly'' designated. Others argue that the use removal criteria and their interpretation are overly generous, granting the possibility of use removal where the principal stressor is a condition which should not be immune from the water quality protection provisions in the federal regulation ( operation of dams is one example used in arguing this position). Others complain that there seems to be no national consistency in the way the use removal criteria are interpreted by EPA, the States or the Tribes. And, finally, questions also have been raised about whether or not the criteria adequately address or apply to all uses equally. The key to appropriate application of the use removal criteria is to focus on whether or not a condition, at a specific site, would preclude attaining a designated use. A decision on this question is not always straightforward however, and as a result, there are questions about the application of the use removal criteria. A few examples may help the discussion. Criterion number 1 allows removal of a designated use where `` naturally occurring pollutant concentrations prevent attainment of the use.'' A reoccurring question about this provision is: under what circumstances should `` naturally occurring pollutant concentrations'' be the justification for use removal versus the basis for calculating site specific criteria, acknowledging that the natural condition defines the existing use? Often, the numerical criteria assigned to the designated use are the initial benchmark for estimating whether or not a designated use will be attained. In this approach, a comparison of the natural condition with the numerical criteria is used in the evaluation of attainability. Where such an analysis demonstrates clearly that the naturally occurring pollutant concentrations would preclude the designated use, the use may be removed. There are, however, examples of situations where statewide or national criteria for one or more contaminants are exceeded, and yet the available information on the overall condition of the water indicate the use is supported. This situation is most common for aquatic life uses where local populations of aquatic organisms may have acclimated to natural conditions outside the estimated `` normal'' tolerance range, where species on the edge of their distribution are reproducing but are physiologically stressed or where broadly derived criteria may not be appropriate for the particular aquatic community at that site. In such a situation, the observed condition of the resource obviously will take precedence over the predicted condition, and the natural water quality will form the basis for site specific criteria since the use is clearly not precluded. Again, the key to answering the use removal question is to determine whether or not `` natural conditions'' preclude attainment of the use, and because of the site specific circumstances discussed above, answering this question involves more than a simple comparison of numeric criteria with the natural condition. Criterion number 2 allows removal of a designated use where natural, ephemeral, intermittent, or low flow conditions would preclude the use unless these conditions may be compensated for by the discharge of sufficient volume of effluent discharges without violating State or Tribal water conservation requirements to enable uses to be met ( emphasis added). Questions have been raised about exactly what the above italicized language means. EPA's interpretation of this phrase is that, where an effluent discharge creates an essentially perennial flow for what naturally would be ephemeral or intermittent waters, the resulting aquatic community is to be protected. EPA's current thinking is that in situations such as these, the second criterion for use removal means that a State or Tribe cannot remove a use of a water body where the augmented flow supports an aquatic life use. Criterion number 4 allows removal of a use where dams, diversions or other types of hydrological modifications preclude the attainment of the use, and it is not feasible to restore the water body to its original condition or operate such modification in a way that would result in the attainment of a use. As indicated above, some have argued that operation of dams is an inappropriate basis for concluding that Section 101( a)( 2) uses are not attainable, and they have suggested this criterion be removed from the regulation. In arguing this position, these commenters have pointed to the 1986 amendments to the Federal Power Act ( Electric Consumer's Protection Act, or ECPA) and the legislative history of these amendments as an indication of Congress' intent to give equal priority to protecting and restoring fish and wildlife habitat even where dams exist. Specifically, the ECPA states:

* * * In deciding whether to issue any license the { Federal Energy Regulatory Commission } , in addition to the power and development purposes for which licenses are issued, shall give equal consideration to the purposes of energy conservation, the protection, mitigation of damages to, and enhancement of fish and wildlife ( including related spawning grounds and habitat), the protection of recreational opportunities, and the preservation of other aspects of environmental quality. ( ECPA amending the Federal Power Act, Section 4( e), 16 U. S. C. Section 797( e))

The legislative history, these commenters believe, provides a particularly clear indication of congressional intent to protect and restore aquatic life uses. They specifically point to that part of the record which states that no one `` expect[ s] ` business as usual,' '' but rather the expectation is that:

[ P] rojects licensed years earlier must undergo the scrutiny of today's values as provided in this law and other environmental laws applicable to such projects. If nonpower values cannot be adequately protected, FERC should exercise its authority to restrict or, particularly in the case of original licenses, even deny a license on a waterway. ( H. R. Rep. No. 99   934, 99th Cong., 2d Sess. ( 1986) at 22)

Groups arguing for removal of criterion 4 use the amendments to the Federal Power Act as an example of the recognition being given today's environmental values and the importance of restoring and enhancing the aquatic habitats and recreational uses of water resources. They maintain that ``... the Water Quality Rule should be updated to recognize that aquatic and recreational uses can not be removed based simply on the existence of a dam.'' EPA's current thinking is that the above rationale and legislative history raise a serious question about whether the existence of a dam and the infeasibility of operating that dam in a way that will result in attaining the designated use, measured against today's values, is sufficient reason to remove a designated use. EPA is interested in commenters views on this issue. Criterion number 5 allows removal of a designated use where physical conditions related to the natural features of the water body, such as the lack of proper substrate, cover, flow, depth, pools, riffles, and the like, unrelated to water quality, preclude attainment of 36756 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules aquatic life protection uses. Notwithstanding the reference to aquatic life uses in 131.10( g)( 5), some have argued that recreational uses, especially swimming uses, might also be limited by physical factors ( especially where safety is an issue), and they have asked whether or not the physical factors consideration could be applied to evaluations of recreational use attainability. As now written, the regulatory language would not allow consideration of physical factors, alone, as the basis for removing a designated recreational use. In the preamble to the 1983 regulation, EPA explained that, while the Agency recognized that physical factors also affect recreational uses, States, and now Tribes, would need to give consideration to incidental uses of the water body even though it may not make sense to encourage use of a stream for swimming because of the flow, depth or velocity of the water. Instead, the preamble discussion explained that based on prudent public health considerations, the use protection question was not to be judged wholly on an analysis of the water body's suitability for swimming but rather on whether or not swimming would actually occur. EPA's current thinking is that physical factors, alone, would not be sufficient justification for removing or failing to designate a primary contact recreation use. EPA's suggested approach to the recreational use question has been for States and Tribes to look at a suite of factors such as, the actual use, existing water quality, water quality potential, access, recreational facilities, location, safety considerations, and physical conditions of the water body in making any use attainability decision. The guidance suggests that any one of these factors, alone, may not be sufficient to conclude that designation of the use is not warranted. Nevertheless, there clearly are situations such as high flows caused by storm events where the physical conditions of a water body would make swimming, if not impossible, extremely dangerous. It is in addressing situations such as these that questions have been raised about the applicability of physical factors to the recreational use issue. The question is sometimes posed in terms of whether or not a State or Tribe would incur some liability by designating or continuing to designate such waters as swimmable. They argue that a reasonable, common sense approach is to acknowledge that there are certain waters for which primary contact recreation is not an attainable use solely because of the physical condition of the water. EPA is, therefore, considering whether the regulation or Agency guidance should be amended to allow consideration of physical factors, alone, as the basis for removing or not designating primary contact recreational uses. The above discussion is about EPA's interpretation of the conditions that would have to be satisfied to either remove or not designate recreational uses. As explained earlier in this section, satisfying those conditions gives a State or Tribe the option of either removing or not designating the use. It does not, however, create an obligation. A specific example may help. A western State was concerned, partly for liability reasons, about designating swimming uses for a number of waters where the physical conditions and other factors made swimming, if it did occur, unwise. Although available information indicated the actual swimming use was limited or nonexistent, the State also wanted to ensure protection of that use, based on public health considerations, should it occur. The issue for the State was striking the appropriate balance between the two concerns: the possibility of inadvertently encouraging swimming where it should not occur because of safety considerations and protecting that use if it did occur. To resolve this issue, the State designated these waters for secondary contact recreation but assigned primary contact recreation bacteriological criteria to provide an appropriate level of protection should swimming occur, however unlikely. In this way, the State felt it did not inappropriately encourage swimming in these waters, but if swimming did occur, the required water quality would provide an appropriate level of protection. This is an approach to the `` incidental use'' issue, discussed in the existing use section of this chapter, that, while acknowledging uncertainty, errs on the side of protectiveness.

Consistency EPA has provided guidance on implementing the requirements in § 131.10( g). Although EPA believes the guidance has been fairly comprehensive and has functioned reasonably well, the growing number and recurring nature of the questions raised about implementation of the use removal criteria have convinced EPA to solicit comments on the need for additional guidance or regulatory changes to ensure appropriate and consistent application of the use removal criteria. As indicated in the introduction to this discussion, one of the reoccurring concerns about implementation of § § 131.10( j) and 131.10( g) with respect to designating or removing uses, is that to some, there are instances of inconsistency in the way the § 131.10( g)( 1)   ( 6) criteria are interpreted by EPA, the States or the Tribes. One example that has been cited is that the application of the fish consumption use is dissimilar in different regions of the country. In one area of the country, some maintain, the fish consumption use is applied to all waters assigned any aquatic life use without regard to whether or not there is a credible exposure pathway to humans by way of contaminated fish. In other areas of the country, the application of the fish consumption use allows consideration of occurrence, size and species of fish present and evidence that fishing actually occurs as a basis for concluding that there is a potential exposure pathway and the use should be designated. An associated consistency issue has to do with the manner in which the terms in § 131.10( g) are interpreted. An example is the term `` feasible'' in criterion number 4. Feasibility could be based on technical considerations, such as the ability to operate an impoundment in an efficient manner that does not degrade water quality, as EPA intended when it originally wrote the regulation. Alternatively, some have suggested that feasibility could be based on economic considerations or a balanced consideration of cost and technology ( EPA's current thinking is that the term `` feasible'' in use removal criterion number 4, regarding the operation of dams should continue to refer to technical feasibility and not to economic feasibility. Criterion number 6, not number 4, is the appropriate avenue to address economic feasibility of attaining the designated use because it establishes an appropriate test of economic infeasibleness.) EPA's view is that the use removal criteria should be clear and consistently interpreted. Questions and/ or positions such as those described above suggest there may be a need for additional guidance on or interpretation of § 131.10( g) to ensure the § 131.10( g) criteria are consistently interpreted and applied, and to address whether review under § 131.10( g) could be done for categories of sources. c. Use Attainability Analysis. A use attainability analysis ( UAA) is a structured scientific assessment of the factors affecting the attainment of uses specified in section 101( a)( 2) of the Act ( the `` fishable/ swimmable'' uses). The factors to be considered in such an analysis include the physical, chemical, biological, and economic use removal 36757 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules criteria described in the current regulation ( 40 CFR 131.10( g)( 1)   ( 6)). The current regulation ( 40 CFR 131.10( j)) establishes the requirement that States and Tribes conduct a UAA when designating uses that do not include the section 101( a)( 2) uses, removing section 101( a)( 2) uses, or designating new subcategories of section 101( a)( 2) uses that require less stringent criteria.

New Information for Waters Without Section 101( a)( 2) Use Designations The current regulation ( § 131.20( a)) specifically requires the re examination of water bodies with less than Section 101( a)( 2) use designations every three years to determine if new information has become available. If new information indicates that a use is attainable, the State or Tribe is to revise the use accordingly. EPA interprets the current regulation as requiring review of past UAA based use designation decisions when there is new information that could have a bearing on that use designation decision. The 1983 preamble to the regulation explained that a State or Tribe need only conduct a UAA once for a given water body. The preamble went on to explain, however, that where the UAA is used as justification for removing a section 101( a)( 2) use or failing to designate a section 101( a)( 2) use, the State is required to review the basis for that decision in subsequent triennial reviews to determine whether or not the circumstances have changed in a way that would alter the original decision. EPA recognizes that the requirement to review new information about past UAA based use designation decisions, because it creates a demand for further analysis of the decision by the State or Tribe, can serve to discourage States and Tribes from generating new information. EPA's current thinking is that interested parties should be encouraged to generate and consider relevant information that could have a bearing on the use designation decision for a particular water and that the trigger for reviewing past use designation decisions should be clear. In addition, EPA is interested in comments on whether there should be some definable burden placed on the State or Tribe to actively seek information for such waters. The Agency may need to be more specific in requiring that States and Tribes specify the procedures they will use in identifying water bodies where `` new information'' has become available and ensuring new information is generated where appropriate. UAAs and Non Section 101( a)( 2) Uses The current regulation indicates that the UAA requirements apply to uses specified in Section 101( a)( 2) of the Act. The regulation at 40 CFR 131.10( j) specifically requires that a State or Tribe conduct a UAA where: ``( 1) the State [ or Tribe] designates or has designated uses that do not include the uses specified in Section 101( a)( 2) of the Act, or ( 2) the State [ or Tribe] wishes to remove a designated use that is specified in Section 101( a)( 2) of the Act or to adopt subcategories of uses specified in Section 101( a)( 2) of the Act which require less stringent criteria.'' Although the regulation at 40 CFR 131.10( g) has always provided that States and Tribes may not remove a designated use unless they can demonstrate that attaining the use is not feasible, the regulatory language does not expressly require the State or Tribe to conduct a UAA as defined in 40 CFR 131.10( j) before a use not referenced in section 101( a)( 2) may be removed. As a result, some have questioned whether or not the UAA requirements actually apply to uses other than those referenced in Section 101( a)( 2), such as water supply or agriculture. EPA's position on this issue is that, while the analysis to downgrade a use not included in CWA section 101( a)( 2) is not expressly referenced in § 131.10( j), 40 CFR 131.10( g) of its own terms requires the State or Tribe to document whether any use being considered for removal is attainable under the six criteria outlined in that section. Where such a use is shown to be attainable, it may not be removed ( downgraded). In practice, EPA believes there is no cognizable difference between these two analyses. EPA is thus considering whether it should combine these elements of 40 CFR 131.10( g) and 131.10( j) or otherwise clarify the relationship between these provisions in the regulation. Given EPA's position that the regulation requires the use attainability of a water body to be documented before any of its uses may be removed, EPA is interested in a discussion of specific attainability issues that might arise in applying the UAA requirements to non Section 101( a)( 2) uses such as water supply or agriculture.

Information in UAAs The regulation is not specific about what a UAA should contain other than the general description contained in the definition of a UAA at 40 CFR 131.3( g). Instead, EPA has issued various national and regional guidance documents to assist with the completion of such analyses. Some have suggested, however, that the regulation be amended to provide more specificity on information needed in a UAA. Topics for consideration might include: what specific questions should a use attainability analysis address? what are the data requirements? and what are the requirements for reporting the results of the analysis? EPA seeks comment on this issue.

UAAs and Refinement of `` Fishable/ Swimmable'' Use Designation As long as a State or Tribe designates uses that fall within the broad range of uses consistent with the section 101( a)( 2) goals, there is no requirement to conduct a UAA. In fact, 40 CFR 131.10( k) explicitly states that `` a State is not required to conduct a use attainability analysis . . . whenever designating uses which include those specified in section 101( a)( 2) of the Act.'' As a result, there does not appear to be a mechanism that ensures State or Tribal waters are not under classified ( i. e., a use subcategory is designated for a water when a higher or more protective subcategory is actually attainable). Some have suggested that the regulation be amended or guidance clarified to require a UAA ( i. e., a structured scientific assessment) whenever an aquatic life use is designated ( or refined) to ensure the level of protection assigned matches the potential for the water body. EPA's current thinking is that there needs to be a solid underlying rationale for use designations. One of the emerging themes from EPA and the larger community of parties interested in further protecting water quality is that refining designated uses and tailoring suites of criteria to the refined uses in watersheds is an important future direction of this program. Clearly for this approach to succeed, a solid evaluation of attainability must be at the heart of any decision to characterize designated uses in greater detail than has been the norm. EPA is interested in comment on this view, in particular as it relates to the rebuttable presumption that the generic uses described as fishable/ swimmable are attainable.

Thresholds for Aquatic Life Use Designation In part 2 of this section, `` Refined Designated Uses'', there is a discussion explaining EPA's position that the definition of `` aquatic life'' is not limited to those waters that support `` fisheries.'' That discussion explains that a more biologically grounded definition of aquatic life would be sufficiently expansive to include aquatic communities made up, for example, 36758 Federal Register / Vol. 63, No. 129 / Tuesday, July 7, 1998 / Proposed Rules entirely of invertebrate organisms. This broad definition of `` aquatic life uses'' has an impact on the manner in which UAAs are planned and evaluated. The current regulation allows States and Tribes to designate uses for certain waters that do not include the section 101( a)( 2) uses, where such uses are not attainable. As a result, some States and Tribes have waters which have not been assigned an aquatic life designated use. However, if aquatic life uses are defined broadly, as EPA believes they should be, there would be very few, if any, waters that would not be considered as supporting some type of existing aquatic life use. Aquatic communities form a continuum, making it difficult, if not impossible in the biological sense, to identify where the threshold for aquatic life use begins. As a result, some have suggested that a broad definition of aquatic life would appear to revoke the option of excluding aquatic life protection from a water body since essentially all waters support some level of aquatic life. They have suggested, therefore, that there is a need to identify a threshold, based on some physical rather than biological limitation, that could be used as an acceptable justification for concluding that an aquatic life use is not attainable. For example, some States and Tribes have urged the use of a flow based threshold to justify a conclusion that an aquatic life use in not attainable. Generally, ephemeral waters ( waters whose channel does not intersect the ground water table and which are dependent on precipitation events for their flow) are suggested as an appropriate threshold. In a biological sense, this may not be a satisfactory solution since there are ecologically important ephemeral waters which should receive aquatic life use protection regardless of the temporal nature of the flow. This is especially true for many ephemeral wetlands. EPA is considering whether changes are needed in the regulation or guidance to address whether, and under what circumstances, UAAs may be used to justify a non aquatic life use classification, given the broad range of aquatic communities that may exist.