objective of the CWA to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters because WQS variances
are narrow in scope and duration and are designed to make progress
toward water quality goals. When a WQS variance is in place, all other
applicable standards not addressed in the WQS variance continue to
apply, in addition to the ultimate water quality objectives (i.e., the
underlying WQS). Also, by requiring the highest attainable condition to
be identified and applicable throughout the term of the WQS variance,
the final rule provides a mechanism to make incremental progress toward
the ultimate water quality objective for the water body and toward the
restoration and maintenance of the chemical, physical, and biological
integrity of the Nation's waters.
---------------------------------------------------------------------------

    \45\ ``Permanent'' is used here to contrast between the time-
limited nature of WQS variances and designated use changes. In
accordance with 40 CFR 131.20, waters that ``do not include the uses
specified in section 101(a)(2) of the Act shall be re-examined every
3 years to determine if new information has become available. If
such new information indicates that the uses specified in section
101(a)(2) of the Act are attainable, the [s]tate shall revise its
standards accordingly.''
---------------------------------------------------------------------------

    This rule adds a new regulatory section at Sec.  131.14 that
explicitly authorizes the use of WQS variances when the applicable
designated uses are not attainable in the near-term but may be
attainable in the future. The rule clarifies how WQS variances relate
to other CWA programs and specifies the information that the state and
authorized tribe must adopt in any WQS variance, including the highest
attainable condition. States and authorized tribes must submit to EPA
supporting documentation that demonstrates why the WQS variance is

needed and justifies the term and interim requirements. Finally, the
rule requires states and authorized tribes to reevaluate WQS variances
longer than five years on an established schedule with public
involvement. The changes from the proposed rule respond to public
comments and remain consistent with the Agency's clearly articulated
policy objectives in the proposed rule. This rule also includes
editorial changes that are not substantive in nature.
    First, to provide clarity, this rule includes a new section at
Sec.  131.14 to explicitly authorize states and authorized tribes to
adopt WQS variances. States and authorized tribes may adopt WQS
variances for a single discharger, multiple dischargers, or a water
body or waterbody segment, but it only applies to the permittee(s) or
water body/waterbody segment(s) specified in the WQS variance. The rule
defines a WQS variance at Sec.  131.3(o) as a time-limited designated
use and criterion for a specified pollutant(s), permittee(s), and/or
water body or waterbody segment(s) that reflects the highest attainable
condition applicable throughout the specified time period. The rule
further specifies that a WQS variance is a new or revised WQS subject
to EPA review and approval or disapproval,\46\ requires a public
process, and must be reviewed on a triennial basis. All other
applicable standards not specifically addressed by the WQS variance
remain applicable. This rule adds Sec.  131.5(a)(4) to explicitly
specify that EPA has the authority to determine whether any WQS
variances adopted by a state or authorized tribe are consistent with
the requirements at Sec.  131.14. A WQS variance shall not be adopted
if the designated use and criterion can be achieved by implementing
technology-based effluent limits required under sections 301(b) and 306
of the Act.
---------------------------------------------------------------------------

    \46\ For this reason, states and authorized tribes are not
required to adopt specific authorizing provisions into state or
authorized tribal law before using WQS variances consistent with the
federal regulation.
---------------------------------------------------------------------------

    To make incremental water quality improvements, it is important
that states' and authorized tribes' WQS continue to reflect the
ultimate water quality goal. This rule, therefore, requires states and
authorized tribes to retain the underlying designated use and criterion
in their standards to apply to all other permittees not addressed in
the WQS variance, and for identifying threatened and impaired waters
under CWA section 303(d), and for establishing a Total Maximum Daily
Load (TMDL).\47\ For further clarity, this rule also specifies that
once EPA approves a WQS variance, including the highest attainable
condition, it applies for purposes of developing NPDES permit limits
and requirements under 301(b)(1)(C). WQS variances can also be used by
states, authorized tribes, and other certifying entities when issuing
certifications under CWA section 401. If EPA disapproves a WQS
variance, the state or authorized tribe will have an opportunity to
revise and re-submit the WQS variance for approval. Until EPA approves
the re-submitted WQS variance, the underlying designated use and
criteria remain applicable for all CWA purposes. This rule reinforces
the requirements at Sec.  122.44(d)(1)(vii)(A) by specifying that any
limitations and requirements necessary to implement the WQS variance
must be included as enforceable conditions of the implementing NPDES
permit.
---------------------------------------------------------------------------

    \47\ See 78 FR 54533 (September 4, 2013).
---------------------------------------------------------------------------

    Second, to provide public transparency, this rule requires states
and authorized tribes to include specific information in the WQS
variance. States and authorized tribes must specify the pollutant(s) or
water quality parameter(s) and the water body/waterbody segment(s) to
which the WQS variance applies. A state or authorized tribe must also
identify the discharger(s) subject to a discharger-specific WQS
variance. As an alternative to identifying the specific dischargers at
the time of adoption of a WQS variance for multiple dischargers, states
and authorized tribes may adopt specific eligibility requirements in
the WQS variance. This will make clear what characteristics a
discharger must have in order to be subject to the WQS variance for
multiple dischargers. It is EPA's expectation that states and
authorized tribes that choose to identify the dischargers in this
manner will subsequently make a list of the facilities covered by the
WQS variance publicly available (e.g., posted on the state or
authorized tribal Web site). It may be appropriate for a state or
authorized tribe to adopt one WQS variance that applies to multiple
dischargers experiencing the same challenges in meeting their WQBELs
for the same pollutant so long as the WQS variance is consistent with
the CWA and Sec.  131.14.\48\ A multiple discharger WQS variance may
not be appropriate or practical for all situations and can be highly
dependent on the applicable pollutants, parameters, and/or permittees.
---------------------------------------------------------------------------

    \48\ EPA has developed a list of Frequently Asked Questions
addressing when a multiple discharger WQS variance may be
appropriate and how a state or authorized tribe can develop a
credible rationale for this type of WQS variance. Discharger-
specific Variances on a Broader Scale: Developing Credible
Rationales for Variances that Apply to Multiple Dischargers, EPA-
820-F-13-012, March 2013.
---------------------------------------------------------------------------

    States and authorized tribes must also specify the term of any WQS
variance to ensure that WQS variances are time-limited. States and
authorized tribes have the flexibility to express the WQS variance term
as a specific date (e.g., expires on December 31, 2024) or as an
interval of time after EPA-approval (e.g., expires 10 years after EPA
approval), as long as it is only as long as necessary to achieve the
highest attainable condition. If, at the end of the WQS variance, the
underlying designated use remains unattainable, the state or authorized
tribe may adopt a subsequent WQS variance(s), consistent with the
requirements of Sec.  131.14.
    To ensure that states and authorized tribes use WQS variances that
continue to make water quality progress, the rule does not allow a WQS
variance to lower currently attained ambient water quality, except in
circumstances where a WQS variance will allow short-term lowering
necessary for restoration activities consistent with Sec.
131.14(b)(2)(i)(A)(2). Moreover, states and authorized tribes must
specify in the WQS variance itself the interim requirements reflecting
the highest attainable condition. Where a permittee cannot immediately
meet the WQBEL derived from the terms of a WQS variance, the permitting
authority can decide whether to provide a permit compliance schedule
(where authorized) so the permittee can remain in compliance with its
NPDES permit.\49\ (See CWA section [502(17)] for a definition of
``Schedules of compliance'' and 40 CFR 122.47).\50\ Any such compliance
schedule must include a final effluent limit based on the applicable
highest attainable condition and must require compliance with the
permit's WQBEL ``as soon as possible.'' If the compliance schedule
exceeds one year, the permitting authority must include interim
requirements and the dates for their achievement.
---------------------------------------------------------------------------

    \49\ As an alternative to a permit compliance schedule, there
may be other available mechanisms such as an administrative order.
    \50\ 78 FR 54532 (September 4, 2013).
---------------------------------------------------------------------------

    For example, if the underlying criterion requires an NPDES WQBEL of
1 mg/L for pollutant X, but the permittee's current effluent quality is
at 10 mg/L, the state or authorized tribe could adopt the highest
attainable condition of 3 mg/L to be achieved at the end of 15 years
and obtain EPA approval if they have met the requirements of Sec.
131.14. Once approved by EPA, the highest attainable condition of 3 mg/
L is the applicable

criterion for purposes of deriving the NPDES WQBEL and developing the
NPDES permit limits and requirements for the facility covered by the
WQS variance. For this example, assume the permitting authority is
developing the NPDES permit without allowing dilution (i.e., applying
the criterion end of pipe). In this case, the facility will need 15
years to implement the activities necessary to meet the limit based on
the 3 mg/L. The permitting authority could include a 15 year compliance
schedule with a final effluent limit based on 3 mg/L and an enforceable
sequence of actions that the permitting authority determines are
necessary to achieve the final effluent limit. As discussed later in
this section, the documentation that a state or authorized tribe
provides to EPA justifying the term of the WQS variance informs the
permitting authority when determining the enforceable sequence of
actions.
    This rule requires states and authorized tribes to provide a
quantifiable expression of the highest attainable condition. This
requirement is an important feature of a WQS variance that facilitates
development of NPDES permit limits and requirements and allows states,
authorized tribes, and the public to track progress. This rule provides
states and authorized tribes the flexibility to express the highest
attainable condition as numeric pollutant concentrations in ambient
water, numeric effluent conditions, or other quantitative expressions
of pollutant reduction, such as the maximum number of combined sewer
overflows that is achievable after implementation of a long-term
control plan or a percent reduction in pollutant loads.
    The final rule at Sec.  131.14(b)(1)(ii) provides states and
authorized tribes with different options to specify the highest
attainable condition depending on whether the WQS variance applies to a
specific discharger(s) or to a water body or waterbody segment. For a
discharger(s)-specific WQS variance, the rule allows states and
authorized tribes to express the highest attainable condition as an
interim criterion without specifying the designated use it supports.
EPA received comments suggesting that identifying both an interim use
and interim criterion for a WQS variance is unnecessary. EPA agrees
that the level of protection afforded by meeting the highest attainable
criterion in the immediate area of the discharge(s) results in the
highest attainable interim use at that location. Therefore, the highest
attainable interim criterion is a reasonable surrogate for both the
highest attainable interim use and interim criterion when the WQS
variance applies to a specific discharger(s). For similar reasons, as
explained in the preamble to the proposed rule, states and authorized
tribes may choose to articulate the highest attainable condition as the
highest attainable interim effluent condition.\51\ Neither of these
options, however, is appropriate for a WQS variance applicable to a
water body or waterbody segment. Such a WQS variance impacts the water
body or waterbody segment in a manner that is similar to a change in a
designated use and, therefore, must explicitly articulate the highest
attainable condition as the highest attainable interim designated use
and interim criterion. A state's or authorized tribe's assessment of
the highest attainable interim designated use and interim criterion for
this type of WQS variance necessarily involves an evaluation of all
pollutant sources.
---------------------------------------------------------------------------

    \51\ 78 FR 54534 (September 4, 2013).
---------------------------------------------------------------------------

    Where the state or authorized tribe cannot identify an additional
feasible pollutant control technology, this rule provides options for
articulating the highest attainable condition using the greatest
pollutant reduction achievable with optimization of currently installed
pollutant control technologies and adoption and implementation of a
Pollutant Minimization Program (PMP). The rule makes this option
available for a WQS variance that applies to a specific discharger(s)
as well as a WQS variance applicable to a water body or waterbody
segment. EPA defines PMP at Sec.  131.3(p) as follows: ``Pollutant
Minimization Program, in the context of Sec.  131.14, is a structured
set of activities to improve processes and pollutant controls that will
prevent and reduce pollutant loadings . . . .'' Pollutant control
technologies represent a broad set of pollutant reduction options, such
as process or raw materials changes and pollution prevention
technologies, practices that reduce pollutants prior to entering the
wastewater treatment system, or best management practices for
restoration and mitigation of the water body. This option requires
states and authorized tribes to adopt the PMP along with other elements
that comprise the highest attainable condition. As part of the
applicable WQS, the permitting authority must use the PMP (along with
the quantifiable expression of the ``greatest pollutant reduction
achievable'') to derive NPDES permit limits and requirements.
    As discussed later in this section, states and authorized tribes
must reevaluate WQS variances on a regular and predictable schedule. To
ensure that a WQS variance reflects the highest attainable condition
throughout the WQS variance term, states and authorized tribes must
adopt a provision specifying that the applicable interim WQS shall be
either the highest attainable condition initially adopted, or a higher
attainable condition later identified during any reevaluation. The rule
requires such a provision only for WQS variances longer than five
years. This provision must be self-implementing so that if any
reevaluation yields a more stringent attainable condition, that
condition becomes the applicable interim WQS without additional action.
Upon permit reissuance, the permitting authority will base the WQBEL on
the more stringent interim WQS consistent with the NPDES permit
regulation at Sec.  122.44(d)(vii)(A). Where the reevaluation
identifies a condition less stringent than the highest attainable
condition, the state or authorized tribe must revise the WQS variance
consistent with CWA requirements and obtain EPA approval of the WQS
variance before the permitting authority can derive a WQBEL based on
that newly identified highest attainable condition.
    Third, to ensure EPA has sufficient information to determine
whether the WQS variance is consistent with EPA's WQS regulation,
states and authorized tribes must provide documentation to justify why
the WQS variance is needed, the term for the WQS variance, and the
highest attainable condition. For a WQS variance to a designated use
specified in CWA section 101(a)(2) and sub-categories of such uses,
states and authorized tribes must demonstrate that the use and
criterion are not feasible to attain on the basis of one of the factors
listed in Sec.  131.10(g) or on the basis of the new restoration-
related factor in Sec.  131.14(b)(2)(i)(A)(2). EPA added this new
factor for when states and authorized tribes wish to obtain a WQS
variance because they expect a time-limited exceedance of a criterion
when removing a dam or during significant wetlands, lake, or stream
reconfiguration/restoration efforts. EPA includes ``lake'' in the
regulatory language for this factor, on the basis of public comments
suggesting that the rule also apply to lake restoration activities.
States and authorized tribes may only use this factor to justify the
time necessary to remove the dam or the length of time in which
wetland, lake, or stream restoration activities are actively on-going.
Although such a WQS

variance might not directly impact an NPDES permittee or the holder of
a federal license or permit, states and authorized tribes could rely on
the WQS variance when deciding whether to issue a CWA section 401
certification in connection with an application for a federal license
or permit. The central feature of CWA section 401 is the state or
authorized tribe's ability to grant, grant with conditions, deny or
waive certification for federally licensed or permitted activities that
may discharge into navigable waters. Many states and authorized tribes
rely on CWA section 401 certification to ensure that federal projects
do not cause adverse water quality impacts. By adopting a WQS variance,
the state or authorized tribe lays the groundwork for issuing a
certification (possibly with conditions, as per CWA section 401(d))
that allows a federal license or permit to be issued. Without a WQS
variance, the state or authorized tribe's only options might be to deny
certification which prevents issuance of the federal license or permit,
or waive certification and allow the license or permit to be issued
without conditions. If a state or authorized tribe issues a CWA
certification based on a WQS variance, EPA recommends that the state or
tribe consider whether to include the applicable interim requirements
from the WQS variance as conditions of its certification.
    For WQS variances to non-101(a)(2) uses, this rule specifies that
states and authorized tribes must document and submit a use and value
demonstration consistent with Sec.  131.10(a) (see section II.B for
additional discussion on use and value demonstrations). EPA's proposed
rule would have required that a ``[s]tate must submit a demonstration
justifying the need for a WQS variance'' and the preamble to the
proposed rule noted that the demonstrations for uses specified in CWA
section 101(a)(2) and non-101(a)(2) may differ. EPA received comments
questioning the requirements for WQS variances to non-101(a)(2) uses
and this rule explicitly makes clear that the documentation requirement
for removing or adopting new or revised designated uses in Sec. Sec.
131.10(a) and 131.6 also applies to non-101(a)(2) WQS variances. States
and authorized tribes may also use the factors at Sec.
131.14(b)(2)(i)(A) to justify how their consideration of the use and
value appropriately supports the WQS variance.
    States and authorized tribes must justify the term of any WQS
variance on the basis of the information and factors evaluated to
justify the need for the WQS variance. States and authorized tribes
must also describe the pollutant control activities, including those
identified through a PMP, that the state or authorized tribe
anticipates implementing throughout the WQS variance term to achieve
the highest attainable condition. During its review of the WQS
variance, EPA will evaluate this description of activities which must
reflect only the time needed to plan activities, implement activities,
or evaluate the outcome of activities. Explicitly requiring the state
or authorized tribe to document the relationship between the pollutant
control activities and the WQS variance term ensures that the term is
only as long as necessary to achieve the highest attainable condition
and that water quality progress is achieved throughout the entire WQS
variance term. The pollutant control activities specified in the
supporting documentation serve as milestones for the WQS variance and
inform the permitting authority when developing the enforceable terms
and conditions of the NPDES permit necessary to implement the WQS
variance, as required at 40 CFR 122.44(d)(1).
    The degree of certainty associated with pollutant control
activities and pollutant reductions will inform EPA's review and
evaluation of whether the state's or authorized tribe's submission
sufficiently justifies the need and the term of WQS variances. There
can be instances where a state or authorized tribe has information to
determine that the underlying designated use and criterion cannot be
attained for a particular period of time, but does not have sufficient
information to identify the highest attainable condition that would be
achieved in that same period of time. In such cases, EPA anticipates
that a state or authorized tribe will adopt a shorter WQS variance
reflecting the highest attainable condition that is supported by the
available information, including the pollutant control activities
identified in the WQS submission. States and authorized tribes could
then determine the appropriate mechanism to continue making progress
towards the underlying designated use and criterion, which may include
adoption of subsequent WQS variances as more data are gathered and
additional pollutant control activities are identified.
    This rule also includes two additional requirements to ensure
states and authorized tribes use all relevant information to establish
a WQS variance for a water body or waterbody segment. States and
authorized tribes must identify and document cost-effective and
reasonable BMPs for nonpoint sources, and provide for public notice and
comment on that documentation. States and authorized tribes must also
document whether and to what extent BMPs were implemented and the water
quality progress achieved during the WQS variance term to justify a
subsequent WQS variance. Nonpoint sources can have a significant
bearing on whether the designated use and associated criteria for the
water body are attainable. It is essential for states and authorized
tribes to consider how controlling these sources through application of
cost-effective and reasonable BMPs could impact water quality before
adopting such a WQS variance. Doing so informs the highest attainable
condition, the duration of the WQS variance term, and the state's or
authorized tribe's assessment of the interim actions that may be needed
to make water quality progress.
    Fourth, to ensure that states and authorized tribes thoroughly
reevaluate each WQS variance with a term longer than five years, this
rule requires states and authorized tribes to specify, in the WQS
variance, the reevaluation frequency and how they plan to obtain public
input on the reevaluation. Additionally, they must submit the results
of the reevaluation to EPA within 30 days of completion. States and
authorized tribes may specify the frequency of reevaluations to
coincide with other state and authorized tribal processes (e.g., WQS
triennial reviews or NPDES permit reissuance), as long as reevaluations
occur at least every five years. Although EPA does not review and
approve or disapprove the results of a WQS variance reevaluation, the
results could inform whether the Administrator exercises his or her
discretion to determine that new or revised WQS are necessary. The rule
also requires states and authorized tribes to adopt a provision
specifying that the WQS variance will no longer be the applicable WQS
for CWA purposes if they do not conduct the required reevaluation or do
not submit the results of the reevaluation within 30 days of
completion. If a state or authorized tribe does not reevaluate the WQS
variance or does not submit the results to EPA within 30 days, the
underlying designated use and criterion become the applicable WQS for
the permittee(s) or water body specified in the WQS variance without
EPA, states or authorized tribes taking an additional WQS action. In
such cases, subsequent NPDES WQBELs for the associated permit must be
based on the underlying designated use and criterion rather than the
highest attainable condition, even if the originally specified variance
term has not expired. As discussed earlier in

this section, states and authorized tribes must also adopt a provision
that ensures the WQS variance reflects the highest attainable condition
initially adopted or any more stringent highest attainable condition
identified during a reevaluation that is applicable throughout the WQS
variance term.
    EPA proposed a maximum allowable WQS variance term of 10 years to
ensure that states and authorized tribes reevaluate long-term WQS
challenges at least every 10 years before deciding whether to continue
with a WQS variance. EPA explained in the preamble to the proposed rule
that the purpose of this maximum WQS variance term was as follows:
``Establishing an expiration date will ensure that the conditions of a
[WQS] variance will be thoroughly reevaluated and subject to a public
review on a regular and predictable basis to determine (1) whether
conditions have changed such that the designated use and criterion are
now attainable; (2) whether new or additional information has become
available to indicate that the designated use and criterion are not
attainable in the future (i.e., data or information supports a use
change/refinement); or (3) whether feasible progress is being made
toward the designated use and criterion and that additional time is
needed to make further progress (i.e., whether a [WQS] variance may be
renewed).'' \52\
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    \52\ 78 FR 54536 (September 4, 2013).
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    Some commenters suggested that 10 years is too long and does not
provide adequate assurance that the state or authorized tribe will
periodically reevaluate a WQS variance in a publicly transparent
manner. Other commenters suggested that 10 years is too short because
states often adopt WQS variances through conventional rulemaking
processes and that such a maximum term would result in unnecessary
rulemaking burden where it is widely understood that long-term
pollution challenges require more time to resolve. A 10-year maximum
could also discourage the use of WQS variances.
    In response, EPA concludes that establishing specific reevaluation
requirements for WQS variances longer than five years is the best way
to achieve EPA's policy objective of active, thorough, and transparent
reevaluation by states and authorized tribes while minimizing
rulemaking burden. The reevaluation requirements in this rule eliminate
the need to specify a maximum WQS variance term because they ensure the
highest attainable condition is always the applicable WQS throughout
the WQS variance term, thus driving incremental improvements toward the
underlying designated use. These requirements also ensure the public
has an opportunity to provide input throughout the WQS variance term.
EPA chose five years as the maximum interval between reevaluations
because five years is the length of a single NPDES permit cycle,
allowing the reevaluation to inform the permit reissuance process.
Although this rule does not specify a maximum WQS variance term, states
and authorized tribes must still identify the WQS variance term and
provide documentation demonstrating that the term is only as long as
necessary to achieve the highest attainable condition. EPA will use
this information to determine whether to approve or disapprove the WQS
variance submitted for review, based on the requirements in Sec.
131.14.
    WQS variances remain subject to the triennial review and public
participation requirements specified in Sec.  131.20. The final rule
requirements ensure that the public has the opportunity to work with
states and authorized tribes in a predictable and timely manner to
search for new or updated data and information specific to the WQS
variance that could indicate a more stringent highest attainable
condition exists than the state or authorized tribe originally adopted.
``New or updated data and information'' include, but are not limited
to, new information on pollutant control technologies, changes in
pollutant sources, flow or water levels, economic conditions, and BMPs
that impact the highest attainable condition. Where there is an EPA-
approved WQS variance, the permitting authority must refer to the
reevaluation results when reissuing NPDES permits to ensure the permit
implements any more stringent applicable WQS that the reevaluation
provides. States and authorized tribes can facilitate this coordination
by publishing and making accessible the results of reevaluations.
    While this rule only requires reevaluations of WQS variances with a
term longer than five years, states and authorized tribes must review
all WQS variances during their triennial review. If a state or
authorized tribe synchronizes a WQS variance reevaluation with permit
reissuance, the reevaluation must occur on schedule even if there is a
delay in the permit reissuance.
    EPA previously promulgated specific variance procedures when EPA
established federal WQS for Kansas (Sec.  131.34(c)) and Puerto Rico
(Sec.  131.40(c)). To provide national consistency, this rule
authorizes the Regional Administrator to grant WQS variances in Kansas
and Puerto Rico in accordance with the provisions of Sec.  131.14.
What did EPA consider?
    In addition to considering the option EPA proposed, EPA considered
options that provide a maximum WQS variance term more than or less than
10 years. EPA rejected these options because retaining a maximum term
of any duration does not accomplish EPA's goal of a balanced approach
that ensures both flexibility and accountability as effectively as
requiring periodic reevaluations of the WQS variance. Additionally, on
the basis of commenters' suggestions, EPA considered requiring
identification and documentation of cost-effective and reasonable BMPs
for nonpoint sources for all WQS variances and not just for WQS
variances applicable to a water body or waterbody segment. To achieve
EPA's policy objectives, EPA chose instead to add a requirement for all
WQS variances that states and authorized tribes describe the pollutant
control activities to achieve the highest attainable condition (see
Sec.  131.14(b)(2)(ii)).
What is EPA's position on certain public comments?
    EPA received comments that suggested confusion between WQS
variances and NPDES permit compliance schedules. WQS variances can be
appropriate to address situations where it is known that the designated
use and criterion are unattainable today, but progress could be made
toward attaining the designated use and criterion. Typically, a permit
authority grants a permit compliance schedule when the permittee needs
additional time to modify or upgrade treatment facilities in order to
meet its WQBEL based on the applicable WQS (i.e., designated use and
criterion). After the effective date of this rule, a permit authority
could also grant a permit compliance schedule when the permittee needs
additional time to meet its WQBEL based on the applicable WQS variance
(i.e., highest attainable condition) such that a schedule and resulting
milestones will lead to compliance with the effluent limits derived
from the WQS variance ``as soon as possible.'' If a WQS variance is
about to expire and a state or authorized tribe concludes the
underlying designated use is now attainable, it is not appropriate for
the state or authorized tribe to adopt a subsequent

WQS variance. However, if a permittee is unable to immediately meet a
WQBEL consistent with the now attainable WQS, and the permitting
authority can specify an enforceable sequence of actions that would
result in achieving the WQBEL, the permitting authority could grant a
permit compliance schedule consistent with Sec.  122.47. If the
underlying designated use is still not attainable, the state or
authorized tribe can adopt a subsequent WQS variance.
    EPA also received comments questioning how a WQS variance works
with a TMDL and CWA section 303(d) impaired waters listing(s). These
comments suggested the proposed rule creates a conflict in how the
NPDES permitting regulation requires permitting authorities to develop
WQBELs. Section 122.44(d)(1)(vii)(A) specifies that all WQBELs in an
NPDES permit must derive from and comply with all applicable WQS.
Section 122.44(d)(1)(vii)(B) specifies that the WQBEL of any NPDES
permit must be consistent with the assumptions and requirements of any
available (emphasis added) waste load allocation (WLA) in an EPA-
approved or EPA-established TMDL. Because the WLA of the TMDL is based
on the underlying designated use and criterion (and not the highest
attainable condition established in the WQS variance), then the WLA in
the TMDL is not available to the permittee covered by the WQS variance
for NPDES permitting purposes while the WQS variance is in effect. The
permitting authority must develop WQBELs for the permittees subject to
the WQS variance based on the interim requirements specified in the WQS
variance. Upon termination of the WQS variance, the NPDES permit must
again derive from and comply with the underlying designated use and
criterion and be consistent with the assumptions and requirements of
the WLA (as it is again ``available'').
    Some commenters questioned what would happen if a state or
authorized tribe does not coordinate a WQS variance term with the
expiration date of an NPDES permit. If information is available to the
permitting authority indicating that the term of a WQS variance will
end during the permit cycle, the permitting authority must develop two
WQBELs: one WQBEL based on the highest attainable condition applicable
throughout the WQS variance term, and another WQBEL based on the
underlying designated use and criterion to apply after the WQS variance
terminates. Including two sets of WQBELs that apply at different time
periods in the permit ensures that the permit will derive from and
comply with WQS throughout the permit cycle. If the state or authorized
tribe adopts and EPA approves a subsequent WQS variance during the
permit term to replace an expiring WQS variance, the new WQS variance
would constitute ``new regulations'' pursuant to Sec.  122.62(a)(3)(i),
and the permitting authority could modify the permit to derive from and
comply with the subsequent WQS variance. At the request of the
permittee, the permitting authority can also utilize the Permit Actions
condition specified in Sec.  122.41(f) to modify a permit and revise
the WQBEL to reflect the new WQS variance.
    Some commenters questioned whether states and authorized tribes
must modify WQS variances that states and authorized tribes adopted
before the effective date of the final rule. States and authorized
tribes must meet the requirements of this rule on the effective date of
the final rule. As with any WQS effective for CWA purposes, WQS
variances are subject to the triennial review requirements at Sec.
131.20(a). When a state or authorized tribe reviews a WQS variance that
was adopted before Sec.  131.14 becomes effective, EPA strongly
encourages the state or authorized tribe to ensure the WQS variance is
consistent with this rule. EPA encourages the public to engage in
triennial reviews and request revisions to WQS variances that states
and authorized tribes adopted and EPA approved prior to the effective
date of the final rule so that the public can provide information
supporting the need to modify the WQS variances. Some states and
authorized tribes may also have adopted binding WQS variance policies
and/or procedures. Such policies and procedures are not required by
EPA's regulation before utilizing WQS variances, however, where state
and authorized tribes have them and they are inconsistent with this
rule, those states and authorized tribes must revise such policies and/
or procedures prior to, or simultaneously with, adopting the first WQS
variance after the effective date of the final rule.
    A state or authorized tribe may be able to streamline its WQS
variance process in several ways. As discussed earlier in this section,
one way is to adopt multiple discharger WQS variances. In justifying
the need for a multiple discharger WQS variance, states and authorized
tribes should account for as much individual permittee information as
possible. A permittee that cannot qualify for an individual WQS
variance cannot qualify for a multiple discharger WQS variance. EPA
recommends that states and authorized tribes provide a list of the
dischargers covered under the WQS variance on their Web sites or other
publicly available sources of state or authorized tribal information,
particularly when using multiple discharger WQS variances.
    A second way is to adopt an administrative procedure that fulfills
the WQS submittal and review requirements and specifies that if the
state or authorized tribe follows the procedure, the WQS variance is
legally binding under state or tribal law. A state or authorized tribe
could submit such an administrative procedure for a WQS variance, as a
rule, to EPA for review and approval under Sec.  131.13. Once approved,
the state or authorized tribe can follow this administrative procedure
and develop a final document for each WQS variance. Because the state
or tribal law specifies this WQS variance document is legally binding,
there is no need for the state or authorized tribe to do a separate
rulemaking for each individual WQS variance. Rather, the state or
authorized tribe could submit each resulting WQS variance document,
with an Attorney General or appropriate tribal legal authority
certification, and EPA could take action under CWA section 303(c).
    Some commenters questioned how this rule affects states and
authorized tribes under the 1995 Great Lakes Water Quality Guidance
(GLWQG) \53\ because those requirements are different than the WQS
variance requirements in the final rule. For waters in the Great Lakes
basin, states and authorized tribes must meet the requirements of both
40 CFR parts 131 and 132. The practical effect of this requirement is
that, where regulations in 40 CFR parts 131 and 132 overlap, the more
stringent regulation applies. In some cases, the flexibilities and
requirements in the national rule will not be applicable to waters in
the Great Lakes basin. For example, the GLWQG limits any WQS variance
to a maximum term of five years (with the ability to obtain a
subsequent WQS variance). Therefore, any WQS variance on waters that
are subject to the GLWQG cannot exceed five years even though the final
rule in 40 CFR part 131 does not specify a maximum term. On the other
hand, because GLWQG WQS variances cannot exceed five years, the
requirements in the final rule that pertain to conducting reevaluations
(for WQS variances greater than five years) are not applicable.
---------------------------------------------------------------------------

    \53\ See 60 FR 15366 (March 23, 1995); 40 CFR part 132.

---------------------------------------------------------------------------

    Finally, some commenters questioned the level of ``scientific
rigor'' required for a WQS variance as compared to a UAA required for
changes to 101(a)(2) uses. Section 40 CFR 131.5(a)(4) provides that
EPA's review under section 303(c) involves a determination of whether
the state's or authorized tribe's ``standards which do not include the
uses specified in section 101(a)(2) of the Act are based upon
appropriate technical and scientific data and analyses. . . .'' Because
WQS variances are time-limited designated uses and criteria, this
requirement applies to WQS variances. States and authorized tribes must
adopt WQS variances based on appropriate technical and scientific data
and analyses. Therefore, the level of rigor required for a WQS variance
is no different than for a designated use change. That said, the
appropriate technical and scientific data required to support a
designated use change and WQS variance can vary depending on the
complexity of the specific circumstances. EPA recognizes that the data
and analyses often needed to support adoption of a WQS variance could
be less complex and require less time and resources compared to
removing a designated use because many WQS variances evaluate only one
parameter for a single permittee for a limited period of time. The
level of effort a state or authorized tribe needs to devote to a WQS
variance will in large part be determined by the complexity of the
water quality problem the state or authorized tribe seeks to address.

F. Provisions Authorizing the Use of Schedules of Compliance for WQBELs
in NPDES Permits

What does this rule provide and why?
    In 1990, EPA concluded that before a permitting authority can
include a compliance schedule for a WQBEL in an NPDES permit, the state
or authorized tribe must affirmatively authorize its use in its WQS or
implementing regulations.\54\ EPA approval of the state's or authorized
tribe's permit compliance schedule authorizing provision as a WQS
ensures that any NPDES permit WQBEL with a compliance schedule derives
from and complies with applicable WQS as required by Sec.
122.44(d)(1)(vii)(A). Because the state's or authorized tribe's
approved WQS authorize extended compliance, any delay in compliance
with a WQBEL pursuant to an appropriately issued permit compliance
schedule is consistent with the statutory implementation timetable in
CWA section 301(b)(1)(C).
---------------------------------------------------------------------------

    \54\ In the Matter of Star-Kist Caribe, Inc. 3 EAD 172 (April
16, 1990).
---------------------------------------------------------------------------

    The use of legally-authorized permit compliance schedules by states
and authorized tribes provides needed flexibility for many dischargers
undergoing facility upgrades and operational changes designed to meet
WQBELs in their NPDES permits. This flexibility will become
increasingly important as states and authorized tribes adopt more
stringent WQS, including numeric nutrient criteria, and address complex
water quality problems presented by emerging challenges like climate
change.
    Some states have adopted compliance schedule authorizing provisions
but have not submitted them to EPA for approval as WQS pursuant to CWA
section 303(c). Other states have not yet adopted compliance schedule
authorizing provisions. A permit could be subject to legal challenge
where a state and authorized tribe decide to authorize permit
flexibility using permit compliance schedules, but do not have a
compliance schedule authorizing provision approved by EPA as a WQS.
    Section 131.15 in this final rule requires that if a state or
authorized tribe intends to authorize the use of compliance schedules
for WQBELs in NPDES permits, it must first adopt a permit compliance
schedule authorizing provision. The authorizing provision must be
consistent with the CWA and is subject to EPA review and approval as a
WQS. This rule adds Sec.  131.5(a)(5) to explicitly specify that EPA
has the authority to determine whether any provision authorizing the
use of schedules of compliance for WQBELs in NPDES permits adopted by a
state or authorized tribe is consistent with the requirements at Sec.
131.15. This rule also includes a number of non-substantive editorial
changes.
    By expressly requiring that the state or authorized tribe adopt a
permit compliance schedule authorizing provision, the first sentence of
the final regulation at Sec.  131.15 ensures that the state or
authorized tribe has expressly made a determination that, under
appropriate circumstances, it can be lawful to delay permit compliance.
Formal adoption as a legally binding provision ensures public
transparency and facilitates public involvement.
    Some commenters expressed concern that the proposed regulatory
language regarding state and authorized tribal adoption could be
interpreted to refer to permit compliance schedules themselves, rather
than their authorizing provisions. To address that concern, the final
rule refers to ``the use of'' schedules of compliance. The phrase ``the
use of'' indicates that the mere adoption of an authorizing provision,
by itself, does not extend the date of compliance with respect to any
specific permit's WQBEL; rather, its adoption allows the state or
authorized tribe to use schedules of compliance, as appropriate, on a
case-by-case basis in individual permits.
    The second sentence of the final regulation at Sec.  131.15
provides that states' and authorized tribes' authorizing provisions
must be consistent with the CWA and are WQS subject to EPA review and
approval. By incorporating the authorizing provision into the state's
or authorized tribe's approved WQS, the state or authorized tribe
ensures that a permitting authority can then legally issue compliance
schedules for WQBELs in NPDES permits that are consistent with CWA
section 301(b)(1)(C). Only the permit compliance schedule authorizing
provisions are WQS subject to EPA approval; individual permit
compliance schedules are not. The final rule provides flexibility for a
state or authorized tribe to include the authorizing provision in the
part of state or tribal regulations where WQS are typically codified,
in the part of state or tribal regulations dealing with NPDES permits,
or in other parts of the state's or authorized tribe's implementing
regulations. Regardless of where the authorizing provision is codified,
as long as the provision is legally binding, EPA will take action on it
under CWA section 303(c). If a state or authorized tribe has already
adopted an authorizing provision that is consistent with the CWA, it
need not readopt the provision for purposes of satisfying the final
rule. Instead, the state or authorized tribe can submit the provision
to EPA with an Attorney General or appropriate tribal legal authority
certification. Moreover, consistent with Sec.  131.21(c), any permit
compliance schedule authorizing provision that was adopted, effective,
and submitted to EPA before May 30, 2000, is applicable for purposes of
Sec.  131.15.
    This final rule does not change any permit compliance schedule
requirements at Sec.  122.47.
    Other judicial and administrative mechanisms issued pursuant to
other authorities, such as an enforcement order issued by a court, can
delay the need for compliance with WQBELs. This rule does not address
those other mechanisms.
What did EPA consider?
    EPA considered finalizing Sec.  131.15, as proposed. Given the
comments

indicating that ambiguity in the proposed language could lead to
confusion over whether the requirements to adopt and submit for EPA
approval applied directly to permit compliance schedules themselves,
EPA did not select this option. Instead, EPA added clarifying language
to address the commenters' concern and streamlined the text of the
proposed rule without making substantive changes. EPA also considered
foregoing the addition of Sec.  131.15. Many commenters, however,
supported adding Sec.  131.15 as a useful clarification of the need and
process for states and authorized tribes to adopt compliance schedule
authorizing provisions.
What is EPA's position on certain public comments?
    Some commenters said that the following proposed regulatory
language--``authorize schedules of compliance for water quality-based
effluent limits (WQBELs) in NPDES permits''--could have the effect of
narrowing the universe of NPDES permits and permit requirements for
which permitting authorities can include permit compliance schedules.
The regulation does not narrow that universe, nor does it preclude
other appropriate uses of permit compliance schedules as provided for
in Sec.  122.47. The new Sec.  131.15 requirements only apply to the
authorization of compliance schedules for WQBELs in NPDES permits. Such
WQBELs are designed to meet WQS established by the state or authorized
tribe and approved by EPA under CWA section 303(c).\55\ Adding this new
provision to the WQS regulation will ensure that the state or
authorized tribe takes the necessary steps to ensure that any NPDES
permit with a permit compliance schedule for a WQBEL is consistent with
the state's or authorized tribe's applicable WQS. The requirement in
Sec.  131.15 does not preclude, or apply to, use of compliance
schedules for permit limitations or conditions that are not WQBELs. A
permitting authority can grant a permit compliance schedule for non-
WQBEL NPDES permit limits or conditions without an EPA-approved
authorizing provision, provided the permit compliance schedule is
consistent with the CWA, EPA's permitting regulation, especially
Sec. Sec.  122.2 and 122.47, and any applicable state or tribal laws
and regulations. Permitting authorities can include such permit
compliance schedules without an EPA-approved permit compliance schedule
authorizing provision because such limits and conditions are not
themselves designed to implement the state's or authorized tribe's
approved WQS.
---------------------------------------------------------------------------

    \55\ 40 CFR 122.44(d)(1); 122.44(d)(1)(vii)(A).
---------------------------------------------------------------------------

G. Other Changes

What does this rule provide and why?
    Regulatory provisions can only be effective if they are clear and
accurate. Even spelling and grammar mistakes, and inconsistent
terminology can cause confusion. This rule, therefore, corrects these
types of mistakes and inconsistencies in the following 11 regulatory
provisions: Sec. Sec.  131.2, 131.3(h), 131.3(j), 131.5(a)(1),
131.5(a)(2), 131.10(j), 131.10(j)(2), 131.11(a)(2), 131.11(b),
131.12(a)(2), and 131.20(b). The rule finalizes eight of the
provisions, as proposed. However, based on public comments, EPA revised
how it is correcting Sec. Sec.  131.5(a)(2), 131.12(a)(2), and
131.20(b). EPA notes that in correcting these minor pre-existing
errors, it did not re-examine the substance of these regulatory
provisions. Thus EPA did not reopen these regulatory provisions.
    With regard to the revision at Sec.  131.5(a)(2), the final rule
adds a reference to Sec.  131.11 and ``sound scientific rationale'' to
make the link clear. Commenters expressed concern that ``sound
scientific rationale'' was an ambiguous and subjective point of
reference and may interfere with the ability of states and authorized
tribes to use narrative criteria. By linking the two regulatory
sections, this rule makes clear that this provision does not contradict
the requirements and flexibilities provided in Sec.  131.11.
    This rule at Sec.  131.12(a)(2) correctly cites to the CWA language
and makes no other changes. EPA proposed revising ``assure'' to
``ensure,'' however, the final rule does not include this change.
Commenters raised the question of whether the revision changed the
meaning of the provision. Although both ``assure'' and ``ensure'' mean
``to make sure,'' EPA recognizes that the context surrounding the word
is important. While ``ensure'' is used in Sec.  131.10(b), in this
context, the states and authorized tribes can ``make sure'' their WQS
meet the regulatory requirements. However, Sec.  131.12(a)(2),
addresses water quality, not WQS. While states and authorized tribes
have control over their WQS, they do not have the same control over the
resulting water quality as it can be affected by many other factors. So
use of the word ``ensure'' would not be appropriate in this provision.
    This rule clarifies four points related to public hearings. First,
it clarifies that 40 CFR part 25 is EPA's public participation
regulation that sets the minimum requirements for public hearings and
removes the nonexistent citation to ``EPA's water quality management
regulation (40 CFR 130.3(b)(6)).'' Second, it clarifies that holding
one public hearing may satisfy the legal CWA requirement although
states and authorized tribes may hold multiple hearings. The purpose of
this revision is to provide consistency with the language of CWA
section 303(c)(1) and Sec.  131.20(a), not to create a requirement that
states and authorized tribes must hold multiple hearings when reviewing
or revising WQS. Third, EPA's corresponding change in Sec.  131.5(a)(6)
clarifies that EPA's authority in acting on revised or new WQS includes
determining whether the state or authorized tribe has followed the
``applicable'' legal procedures. Applicable legal procedures include
those required by the CWA and EPA's implementing regulations. In
particular, states and authorized tribes must comply with the
requirement in Sec.  131.20(b) to hold a public hearing in accordance
with 40 CFR part 25 when reviewing or revising WQS. The purpose of the
Sec.  131.20(b) requirements is to implement the CWA and provide an
opportunity for meaningful public input when states or authorized
tribes develop WQS, which is an important step to ensure that adopted
WQS reflect full consideration of the relevant issues raised by the
public. Finally, Sec.  131.20(b) and EPA's corresponding deletion of
Sec.  131.10(e) clarify that a public hearing is required when (1)
reviewing WQS per Sec.  131.20(a); (2) when revising WQS as a result of
reviewing WQS per Sec.  131.20(a); and (3) whenever revising WQS,
regardless of whether the revision is a result of triennial review per
Sec.  131.20(a). EPA reviewed the use of the phrase ``an opportunity
for a public hearing'' used in Sec.  131.10(e) and found that such
language contradicts the CWA and Sec.  131.20(b). Therefore, EPA is
deleting this provision as a conforming edit to its clarifications in
Sec.  131.20(b). As suggested by commenters, EPA replaced its proposed
language of ``reviewing or revising'' to ``reviewing as well as when
revising'' to make clear that public participation is required in all
of these circumstances.
What is EPA's position on certain public comments?
    A commenter requested that EPA further revise the regulation to
allow states and authorized tribes to gather public input in formats
other than public hearings (e.g., public meetings, webinars). Although
EPA acknowledges

the challenges that states and authorized tribes may experience when
planning and conducting a public hearing, the requirement to hold
hearings for the purposes of reviewing, and as appropriate, modifying
and adopting WQS comes directly from CWA section 303(c)(1). Further,
meaningful involvement of the public and intergovernmental coordination
with local, state, federal, and tribal entities with an interest in
water quality issues is an important component of the WQS process.
States and authorized tribes have discretion to use other outreach
efforts in addition to fulfilling the requirement for a public hearing.
    A ``public hearing'' may mean different things to different people.
At a minimum, per Sec.  131.20(b), states and authorized tribes are
required to follow the provisions of state or tribal law and EPA's
public participation regulations at 40 CFR part 25. EPA's public
participation regulation, at 40 CFR 25.5, sets minimum requirements for
states and authorized tribes to publicize a hearing at least 45 days
prior to the date of the hearing; provide to the public reports,
documents, and data relevant to the discussion at the public hearing at
least 30 days before the hearing; hold the hearing at times and places
that facilitate attendance by the public; schedule witnesses in advance
to allow maximum participation and adequate time; and prepare a
transcript, recording, or other complete record of the hearing
proceedings. See 40 CFR 25.5 for the actual list of federal public
hearing requirements. State and tribal law may include additional
requirements for states and authorized tribes to meet when planning for
and conducting a hearing. In addition to meeting the requirements of
state and tribal law and 40 CFR part 25, states and authorized tribes
may also choose to gather public input using other formats, such as
public meetings and webinars.

III. Economic Impacts on State and Authorized Tribal WQS Programs

    EPA evaluated the potential incremental administrative burden and
cost that may be associated with the final rule, beyond the burden and
cost of the WQS regulation already in place. EPA's estimate is higher
than the estimate of the proposed rule for two reasons unrelated to any
substantive change in requirements. First, EPA obtained more precise
estimates of burden and costs. EPA received many comments suggesting
that EPA underestimated the burden and cost of the proposed rule.
States specifically requested to meet with EPA to provide additional
information for EPA to consider. EPA engaged the states and
incorporated the information provided into the final economic analysis.
The higher estimate is also partly due to EPA using known data to
extrapolate burden and costs to states, territories and authorized
tribes where data were unavailable. EPA describes the method of
extrapolation in detail in the full economic analysis available in the
docket of the final rule. EPA's economic analysis focuses on the
potential administrative burden and cost to all 50 states, the District
of Columbia, five territories, the 40 authorized tribes with EPA-
approved WQS, and to EPA. While this rule does not establish any
requirements directly applicable to regulated point sources or nonpoint
sources of pollution, EPA acknowledges that this rule may result in
indirect costs to some regulated entities as a result of changes to WQS
that states and authorized tribes adopt based on the final rule. EPA is
unable to quantify indirect costs and benefits since it cannot
anticipate precisely how the rule will be implemented by states and
authorized tribes and because of a lack of data. States and authorized
tribes always have the discretion to adopt new or revised WQS
independent of this final rule that could result in costs to point
sources and nonpoint sources. EPA's economic analysis and an
explanation for how EPA derived the cost and burden estimates are
documented in the Economic Analysis for the Water Quality Standards
Regulatory Revisions (Final Rule) and can be found in the docket for
this rule.
    EPA assessed the potential incremental burden and cost of this
final rule using the same basic methodology used to assess the
potential incremental burden and cost of EPA's proposed rule,
including: (1) Identifying the elements of the final rule that could
potentially result in incremental burden and cost; (2) estimating the
incremental number of labor hours states and authorized tribes may need
to allocate in order to comply with those elements of the final rule;
and (3) estimating the cost associated with those additional labor
hours.
    EPA identified four areas where differences between the proposed
and final rules affected burden and cost estimates. First, when states
and authorized tribes submit the results of triennial reviews to EPA,
they must provide an explanation when not adopting new or revised water
quality criteria for parameters for which EPA has published new or
updated CWA section 304(a) criteria recommendations. Second, when
developing or revising antidegradation implementation methods and when
deciding which waters would receive Tier 2 antidegradation protection
under a water body-by-water body approach, states and authorized tribes
must provide an opportunity for public involvement. States and
authorized tribes must also document and keep in the public record the
factors they considered when making those decisions. Third, the final
rule no longer includes a maximum WQS variance duration of 10 years and
thus eliminates the burden and cost associated with renewing a WQS
variance when the state or authorized tribe can justify a longer term.
Fourth, the final rule requires states and authorized tribes to
proactively reevaluate WQS variances that have a term longer than five
years no less frequently than every five years and to submit the
results of each reevaluation to EPA within 30 days of completion. EPA
also revised certain economic assumptions based on additional
information obtained independently by EPA and in response to
stakeholder feedback.
    The potential incremental burden and cost of the final rule include
five categories: (1) One-time burden and cost associated with state and
authorized tribal rulemaking activities when some states and authorized
tribes may need to adopt new or revised provisions into their WQS
(e.g., review currently adopted water quality standards to determine if
the new requirements necessitate revisions, such as modifying
antidegradation policy, revising WQS variance procedures if the state
or authorized tribe has chosen to adopt such a procedure, or adopting a
permit compliance schedule authorizing provision); (2) recurring burden
and cost associated with removing uses specified in CWA section
101(a)(2) because states and authorized tribes must identify the HAU;
(3) recurring burden and cost associated with triennial reviews whereby
states and authorized tribes must prepare and submit an explanation
when not adopting new or revised water quality criteria for parameters
for which EPA has published new or updated CWA section 304(a) criteria
recommendations; (4) recurring burden and cost associated with
antidegradation requirements, including providing the opportunity for
public involvement when developing and subsequently revising
antidegradation implementation methods; providing the opportunity for
public involvement when deciding which waters will receive Tier 2
antidegradation protection when using a water body-by-water body
approach; documenting and

keeping in the public record the factors the state or authorized tribe
considered when deciding which waters will receive Tier 2
antidegradation protection; and performing/evaluating more extensive
and a greater number of antidegradation reviews; and (5) recurring
burden and cost associated with developing and documenting WQS
variances for submission to EPA, and reevaluating WQS variances with a
term longer than five years no less frequently than every five years.
EPA did not estimate potential cost savings associated with a provision
in the final rule that a UAA is not required when removing a non-
101(a)(2) use because states and authorized tribes continue to have the
discretion to conduct a UAA when removing such uses.
    Estimates of the potential incremental burden and cost of this
final rule are summarized in the following tables.

                                    Summary of Potential Incremental Burden and Cost to States and Authorized Tribes
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             One-time activities                            Recurring activities
                                                          ----------------------------------------------------------------------------------------------
                        Provision                                                                 Annualized cost
                                                             Burden (hours)      Cost (2013$      (2013$ millions/    Burden (hours/      Cost (2013$
                                                                                millions)          year) \1\            year)          millions/year)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rulemaking Activities....................................      48,000-96,000        $2.35-$4.70        $0.16-$0.32                 --                 --
Designated Uses..........................................                 --                 --                 --        2,250-4,500        $0.11-$0.22
Triennial Reviews........................................                 --                 --                 --       4,320-21,600          0.21-1.06
Antidegradation..........................................       6,450-12,900          0.32-0.63          0.02-0.04     48,015-143,400          2.37-7.02
WQS Variances............................................                 --                 --                 --     51,840-233,280         2.54-11.43
                                                          ----------------------------------------------------------------------------------------------
    National Total.......................................     54,450-108,900          2.67-5.34          0.18-0.36    106,425-402,780         5.24-19.73
--------------------------------------------------------------------------------------------------------------------------------------------------------
`--' = not applicable
Note: Individual annual cost estimates do not add to the total because of independent rounding.
\1\ Although EPA expects one-time rulemaking activity costs to be incurred over an initial three-year period, it annualized costs at a three percent
  discount rate over 20 years for comparative purposes. See the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) for
  the potential incremental burden and cost using a seven percent discount rate.

                                               Summary of Potential Incremental Burden and Cost to EPA \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                        One-time activities                                                         Recurring activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Annualized cost                 Burden                  Cost to the                   Burden
                                               to the agency  -------------------------------------  agency (2013$  ------------------------------------
   Cost to the agency (2013$ million) \2\      (2013$ million                                         million per                         FTEs per year
                                               per year) \3\        Hours \4\          FTEs \5\        year) \6\     Hours per year \4\        \5\
--------------------------------------------------------------------------------------------------------------------------------------------------------
$0.53-$1.07.................................     $0.04-$0.07        7,080-14,150          3.4-6.8      $1.05-$3.95       13,900-52,320         6.7-25.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Assuming that the incremental burden and costs to EPA are equal to 20 percent of the burden and costs to states and authorized tribes.
\2\ $0.53 million ($2.67 million x 20 percent) to $1.07 million ($5.34 million x 20 percent)
\3\ Although EPA expects these one-time costs to be incurred over an initial three-year period, the costs are annualized at three percent discount rate
  over 20 years for comparative purposes. See the Economic Analysis for the Water Quality Standards Regulatory Revisions (Final Rule) for the potential
  incremental burden and cost using a seven percent discount rate.
\4\ Total costs to the Agency divided by hourly wage rate ($75.41 per hour).
\5\ Burden hours to the Agency divided by hours worked by full-time equivalent (FTE) employees per year (2,080 hours per year).
\6\ $1.05 million ($5.24 million x 20 percent) to $3.95 million ($19.73 million x 20 percent).

                             Combined Summary of Potential Incremental Burden and Cost to States, Authorized Tribes, and EPA
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             One-time activities                            Recurring activities
                                                          ----------------------------------------------------------------------------------------------
                         Entities                                                                 Annualized cost
                                                             Burden (hours)      Cost (2013$      (2013$ million/     Burden (hours/      Cost (2013$
                                                                                millions)          year) \1\            year)          millions/year)
--------------------------------------------------------------------------------------------------------------------------------------------------------
States and Authorized Tribes.............................     54,450-108,900        $2.67-$5.34        $0.18-$0.36    106,425-402,780       $5.24-$19.73
Agency...................................................       7,080-14,150          0.53-1.07          0.04-0.07      13,900-52,320          1.05-3.95
                                                          ----------------------------------------------------------------------------------------------
    Total................................................     61,530-122,050          3.20-6.40          0.22-0.43    120,325-455,100         6.29-23.68
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Individual annual cost estimates do not add to the total because of independent rounding.
\1\ Although EPA expects states and authorized tribes to incur rulemaking costs over an initial three-year period, it annualized one-time costs at a
  three percent discount rate over 20 years for comparative purposes. See the Economic Analysis for the Water Quality Standards Regulatory Revisions
  (Final Rule) for the potential incremental burden and cost using a seven percent discount rate.

    To estimate the total annual cost of this rule which includes both
one-time cost and recurring cost, EPA annualized the one-time cost over
a period of 20 years. Using a 20-year annualization period and a
discount rate of three percent, EPA estimates the total annual cost for
this final rule to range from $6.51 million per year ($0.22 million per
year + $6.29 million per year) to $24.11 million per year ($0.43
million per year + $23.68 million per year).\56\
---------------------------------------------------------------------------

    \56\ See the Economic Analysis for the Water Quality Standards
Regulatory Revisions (Final Rule) for the potential incremental
burden and cost for this final rule using a seven percent discount
rate.

---------------------------------------------------------------------------

    EPA also evaluated the potential benefits associated with this
rule. States and authorized tribes will benefit from these revisions
because the WQS regulation will provide clear requirements to
facilitate the ability of states and authorized tribes to effectively
and legally utilize available regulatory tools when implementing and
managing their WQS programs. Although associated with potential
administrative burden and cost in some areas, this rule has the
potential to partially offset these burdens by reducing regulatory
uncertainty and increasing overall program efficiency. Use of these
tools to improve establishment and implementation of state and
authorized tribal WQS, as discussed throughout the preamble to this
rule, provides incremental improvements in water quality and a variety
of economic benefits associated with these improvements, including the
availability of clean, safe, and affordable drinking water sources;
water of adequate quality for agricultural and industrial use; and
water quality that supports the commercial fishing industry and higher
property values. Nonmarket benefits of this rule include greater
recreational opportunities and the protection and improvement of public
health. States, authorized tribes, stakeholders and the public will
also benefit from the open public dialogue that results from the
additional transparency and public participation requirements included
in this rule. Because states and authorized tribes implement their own
WQS programs, EPA could not reliably predict the control measures
likely to be implemented and subsequent improvements to water quality,
and thus could not quantify the resulting benefits.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket. EPA prepared an analysis of the potential costs and benefits
associated with this action. This analysis, Economic Analysis for the
Water Quality Standards Regulatory Revisions (Final Rule), is
summarized in section III of the preamble and is available in the
docket.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been
submitted for approval to OMB under the PRA. The Information Collection
Request (ICR) document that EPA prepared has been assigned EPA ICR
number 2449.02. You can find a copy of the ICR in the docket for this
rule, and it is briefly summarized here. The information collection
requirements are not enforceable until OMB approves them.
    The core of the WQS regulation, established in 1983, requires EPA
to collect certain information from states and authorized tribes and
has an approved ICR (EPA ICR number 988.11; OMB Control number 2040-
0049). This rule requires states and authorized tribes to submit
certain additional information to EPA. This mandatory information
collection ensures EPA has the necessary information to review WQS and
approve or disapprove consistent with the rule. The goals of the rule
can only be fulfilled by collecting this additional information. Due to
the nature of this rule, EPA assumes that all administrative burden
associated with this rule, summarized in section III, is associated
with information collection.
    Respondents/affected entities: The respondents affected by this
collection activity include the 50 states, the District of Columbia,
five territories, and 40 authorized tribes that have EPA-approved WQS.
The respondents are in NAICS code 92411 ``Administration of Air and
Water Resources and Solid Waste Management Programs,'' formerly SIC
code #9511.
    Respondent's obligation to respond: The collection is required
pursuant to CWA section 303(c), as implemented by the revisions to 40
CFR part 131.
    Estimated number of respondents: A total of 96 governmental
entities are potentially affected by the rule.
    Frequency of response: The CWA requires states and authorized
tribes to review their WQS at least once every three years and submit
the results to EPA. In practice, some states and authorized tribes
choose to submit revised standards for portions of their waters more
frequently.
    Total estimated burden: EPA estimates a total annual burden of
124,575-439,080 hours and 3,176 to 5,096 responses per year. Burden is
defined at 5 CFR 1320.3(b). A ``response'' is an action that a state or
authorized tribe would need to take in order to meet the information
collection request provided in the rule (e.g., documentation supporting
a WQS variance). See also the ``Information Collection Request for
Water Quality Standards Regulatory Revisions (Final Rule)'' in the
docket for this rule.
    Total estimated cost: Total estimated annual incremental costs
range from $6.13 million to $21.51 million.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves
this ICR, the Agency will announce the approval in the Federal Register
and publish a technical amendment to 40 CFR part 9 to display the OMB
control number for the approved information collection activities
contained in this final rule.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. State
and authorized tribal governments responsible for administering or
overseeing water quality programs may be directly affected by this
rulemaking, as states and authorized tribes may need to consider and
implement new provisions, or revise existing provisions, in their WQS.
Small entities, such as small businesses or small governmental
jurisdictions, are not directly regulated by this rule. This rule will
not impose any requirements on small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This rule does not contain a federal mandate that may result in
expenditures of $100 million or more for state, local, and tribal
governments, in the aggregate, or the private sector in any one year.
EPA estimates total annual costs to states and authorized tribes to
range from $5.24 million to $19.73 million per year. Thus, this rule is
not subject to the requirements of sections 202 or 205 of UMRA.
    This rule is also not subject to the requirements of section 203 of
UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This rule does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various

levels of government. The rule finalizes regulatory revisions to
provide clarity and transparency in the WQS regulation that may require
state and local officials to reevaluate or revise their WQS. However,
the rule will not impose substantial direct compliance costs on state
or local governments, nor will it preempt state law. Thus, Executive
Order 13132 does not apply to this action.
    Keeping with the spirit of Executive Order 13132 and consistent
with EPA's policy to promote communications between EPA and state and
local governments, EPA consulted with state and local officials early
in the process and solicited their comments on the proposed action and
on the development of this rule.
    Between September 2013 and June 2014, EPA consulted with
representatives from states and intergovernmental associations at their
request, to hear their views on the proposed regulatory revisions and
how commenters' suggested revisions would impact implementation of
their WQS programs. Some participants expressed concern that the
proposed changes may impose a resource burden on state and local
governments, as well as infringe on states' flexibility in the areas
included in the proposed rule. Some participants urged EPA to ensure
that states with satisfactory regulations in these areas are not unduly
burdened by the regulatory revisions.

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

    This action may have tribal implications. However, it will neither
impose substantial direct compliance costs on tribal governments, nor
preempt tribal law. Thus, Executive Order 13175 does not apply to this
action. To date, 50 Indian tribes have been approved for treatment in a
manner similar to a state (TAS) for CWA sections 303 and 401. Of the 50
tribes, 40 have EPA-approved WQS in their respective jurisdictions. All
of these authorized tribes are impacted by this regulation. However,
this rule might affect other tribes with waters adjacent to waters with
federal, state, or authorized tribal WQS.
    EPA consulted and coordinated with tribal officials consistent with
EPA's Policy on Consultation and Coordination with Indian Tribes early
in the process of developing this regulation to allow them to provide
meaningful and timely input into its development. In August 2010,
November 2013, and October 2014, EPA held tribes-only consultation and
coordination sessions to hear their views and answer questions of all
interested tribes on the targeted areas EPA considered for regulatory
revision. Tribes expressed the need for additional guidance and
assistance in implementing the proposed rulemaking, specifically for
development of antidegradation implementation methods and determination
of the highest attainable use. EPA considered the burden to states and
authorized tribes in developing this rule and, when possible, has
provided direction and flexibility that allows tribes to address higher
priority aspects of their WQS programs. EPA also intends to release
updated guidance in a new edition of the WQS Handbook. A summary of the
consultation and coordination is available in the docket for this rule.

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

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

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    EPA has determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations, because it does not adversely affect the level
of protection provided to human health or the environment. This rule
does not directly establish WQS for a state or authorized tribe and,
therefore, does not directly affect a specific population or a
particular geographic area(s).

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects in 40 CFR Part 131

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

    Dated: August 5, 2015.
Gina McCarthy,
Administrator.
    For the reasons stated in the preamble, EPA amends 40 CFR part 131
as follows:

PART 131--WATER QUALITY STANDARDS

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

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

Subpart A--General Provisions

0
2. In Sec.  131.2, revise the first sentence to read as follows:

Sec.  131.2   Purpose.

    A water quality standard defines the water quality goals of a water
body, or portion thereof, by designating the use or uses to be made of
the water and by setting criteria that protect the designated uses. * *
*
* * * * *

0
3. In Sec.  131.3:
0
a. Revise paragraphs (h) and (j).
0
b. Add paragraphs (m), (n), (o), (p), and (q).
    The revisions and additions read as follows:

Sec.  131.3  Definitions.

* * * * *
    (h) Water quality limited segment means any segment where it is
known that water quality does not meet applicable water quality
standards, and/or is not expected to meet applicable water quality
standards, even after the application of the technology-based effluent
limitations required by sections 301(b) and 306 of the Act.
* * * * *
    (j) States include: The 50 States, the District of Columbia, Guam,
the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the
Commonwealth of the Northern Mariana Islands, and Indian Tribes that
EPA determines to be eligible for purposes of the water quality
standards program.
* * * * *
    (m) Highest attainable use is the modified aquatic life, wildlife,
or recreation use that is both closest to the uses specified in section
101(a)(2) of the

Act and attainable, based on the evaluation of the factor(s) in Sec.
131.10(g) that preclude(s) attainment of the use and any other
information or analyses that were used to evaluate attainability. There
is no required highest attainable use where the State demonstrates the
relevant use specified in section 101(a)(2) of the Act and sub-
categories of such a use are not attainable.
    (n) Practicable, in the context of Sec.  131.12(a)(2)(ii), means
technologically possible, able to be put into practice, and
economically viable.
    (o) A water quality standards variance (WQS variance) is a time-
limited designated use and criterion for a specific pollutant(s) or
water quality parameter(s) that reflect the highest attainable
condition during the term of the WQS variance.
    (p) Pollutant Minimization Program, in the context of Sec.  131.14,
is a structured set of activities to improve processes and pollutant
controls that will prevent and reduce pollutant loadings.
    (q) Non-101(a)(2) use is any use unrelated to the protection and
propagation of fish, shellfish, wildlife or recreation in or on the
water.

0
4. In Sec.  131.5:
0
a. Revise paragraphs (a)(1) and (2).
0
b. Redesignate paragraphs (a)(3) through (5) as paragraphs (a)(6)
through (8).
0
c. Add paragraphs (a)(3) through (5).
0
d. Revise newly designated paragraph (a)(6).
0
e. Revise paragraph (b).
    The revisions and additions read as follows:

Sec.  131.5  EPA authority.

    (a) * * *
    (1) Whether the State has adopted designated water uses that are
consistent with the requirements of the Clean Water Act;
    (2) Whether the State has adopted criteria that protect the
designated water uses based on sound scientific rationale consistent
with Sec.  131.11;
    (3) Whether the State has adopted an antidegradation policy that is
consistent with Sec.  131.12, and whether any State adopted
antidegradation implementation methods are consistent with Sec.
131.12;
    (4) Whether any State adopted WQS variance is consistent with Sec.
131.14;
    (5) Whether any State adopted provision authorizing the use of
schedules of compliance for water quality-based effluent limits in
NPDES permits is consistent with Sec.  131.15;
    (6) Whether the State has followed applicable legal procedures for
revising or adopting standards;
* * * * *
    (b) If EPA determines that the State's or Tribe's water quality
standards are consistent with the factors listed in paragraphs (a)(1)
through (8) of this section, EPA approves the standards. EPA must
disapprove the State's or Tribe's water quality standards and
promulgate Federal standards under section 303(c)(4), and for Great
Lakes States or Great Lakes Tribes under section 118(c)(2)(C) of the
Act, if State or Tribal adopted standards are not consistent with the
factors listed in paragraphs (a)(1) through (8) of this section. EPA
may also promulgate a new or revised standard when necessary to meet
the requirements of the Act.
* * * * *

Subpart B--Establishment of Water Quality Standards

0
5. In Sec.  131.10:
0
a. Revise paragraphs (a), (g) introductory text, (j), and (k).
0
b. Remove and reserve paragraph (e).
    The revisions read as follows:

Sec.  131.10  Designation of uses.

    (a) Each State must specify appropriate water uses to be achieved
and protected. The classification of the waters of the State must take
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. If adopting new or revised designated
uses other than the uses specified in section 101(a)(2) of the Act, or
removing designated uses, States must submit documentation justifying
how their consideration of the use and value of water for those uses
listed in this paragraph appropriately supports the State's action. A
use attainability analysis may be used to satisfy this requirement. In
no case shall a State adopt waste transport or waste assimilation as a
designated use for any waters of the United States.
* * * * *
    (e) [Reserved]
* * * * *
    (g) States may designate a use, or remove a use that is not an
existing use, if the State conducts a use attainability analysis as
specified in paragraph (j) of this section that demonstrates attaining
the use is not feasible because of one of the six factors in this
paragraph. If a State adopts a new or revised water quality standard
based on a required use attainability analysis, the State shall also
adopt the highest attainable use, as defined in Sec.  131.3(m).
* * * * *
    (j) A State must conduct a use attainability analysis as described
in Sec.  131.3(g), and paragraph (g) of this section, whenever:
    (1) The State designates for the first time, or has previously
designated for a water body, uses that do not include the uses
specified in section 101(a)(2) of the Act; or
    (2) The State wishes to remove a designated use that is specified
in section 101(a)(2) of the Act, to remove a sub-category of such a
use, or to designate a sub-category of such a use that requires
criteria less stringent than previously applicable.
    (k) A State is not required to conduct a use attainability analysis
whenever:
    (1) The State designates for the first time, or has previously
designated for a water body, uses that include the uses specified in
section 101(a)(2) of the Act; or
    (2) The State designates a sub-category of a use specified in
section 101(a)(2) of the Act that requires criteria at least as
stringent as previously applicable; or
    (3) The State wishes to remove or revise a designated use that is a
non-101(a)(2) use. In this instance, as required by paragraph (a) of
this section, the State must submit documentation justifying how its
consideration of the use and value of water for those uses listed in
paragraph (a) appropriately supports the State's action, which may be
satisfied through a use attainability analysis.

0
6. In Sec.  131.11, revise paragraphs (a)(2) and (b) introductory text
to read as follows:

Sec.  131.11   Criteria.

    (a) * * *
    (2) Toxic pollutants. States must review water quality data and
information on discharges to identify specific water bodies where toxic
pollutants may be adversely affecting water quality or the attainment
of the designated water use or where the levels of toxic pollutants are
at a level to warrant concern and must adopt criteria for such toxic
pollutants applicable to the water body sufficient to protect the
designated use. Where a State adopts narrative criteria for toxic
pollutants to protect designated uses, the State must provide
information identifying the method by which the State intends to
regulate point source discharges of toxic pollutants on water quality
limited segments based on such narrative criteria. Such information may
be included as part of the standards or may be included in documents
generated by the State in response to the Water

Quality Planning and Management Regulations (40 CFR part 130).
    (b) Form of criteria: In establishing criteria, States should:
* * * * *
0
7. In Sec.  131.12:
0
a. Revise the section heading and paragraphs (a) introductory text and
(a)(2).
0
b. Add paragraph (b).
    The revisions and additions read as follows:

Sec.  131.12  Antidegradation policy and implementation methods.

    (a) The State shall develop and adopt a statewide antidegradation
policy. The antidegradation policy shall, at a minimum, be consistent
with the following:
* * * * *
    (2) Where the quality of the waters exceeds levels necessary to
support the protection and propagation of fish, shellfish, and wildlife
and recreation in and on the water, that quality shall be maintained
and protected unless the State finds, after full satisfaction of the
intergovernmental coordination and public participation provisions of
the State's continuing planning process, that allowing lower water
quality is necessary to accommodate important economic or social
development in the area in which the waters are located. In allowing
such degradation or lower water quality, the State shall assure water
quality adequate to protect existing uses fully. Further, the State
shall assure that there shall be achieved the highest statutory and
regulatory requirements for all new and existing point sources and all
cost-effective and reasonable best management practices for nonpoint
source control.
    (i) The State may identify waters for the protections described in
paragraph (a)(2) of this section on a parameter-by-parameter basis or
on a water body-by-water body basis. Where the State identifies waters
for antidegradation protection on a water body-by-water body basis, the
State shall provide an opportunity for public involvement in any
decisions about whether the protections described in paragraph (a)(2)
of this section will be afforded to a water body, and the factors
considered when making those decisions. Further, the State shall not
exclude a water body from the protections described in paragraph (a)(2)
of this section solely because water quality does not exceed levels
necessary to support all of the uses specified in section 101(a)(2) of
the Act.
    (ii) Before allowing any lowering of high water quality, pursuant
to paragraph (a)(2) of this section, the State shall find, after an
analysis of alternatives, that such a lowering is necessary to
accommodate important economic or social development in the area in
which the waters are located. The analysis of alternatives shall
evaluate a range of practicable alternatives that would prevent or
lessen the degradation associated with the proposed activity. When the
analysis of alternatives identifies one or more practicable
alternatives, the State shall only find that a lowering is necessary if
one such alternative is selected for implementation.
* * * * *
    (b) The State shall develop methods for implementing the
antidegradation policy that are, at a minimum, consistent with the
State's policy and with paragraph (a) of this section. The State shall
provide an opportunity for public involvement during the development
and any subsequent revisions of the implementation methods, and shall
make the methods available to the public.

0
8. Add Sec.  131.14 to read as follows:

Sec.  131.14  Water quality standards variances.

    States may adopt WQS variances, as defined in Sec.  131.3(o). Such
a WQS variance is subject to the provisions of this section and public
participation requirements at Sec.  131.20(b). A WQS variance is a
water quality standard subject to EPA review and approval or
disapproval.
    (a) Applicability. (1) A WQS variance may be adopted for a
permittee(s) or water body/waterbody segment(s), but only applies to
the permittee(s) or water body/waterbody segment(s) specified in the
WQS variance.
    (2) Where a State adopts a WQS variance, the State must retain, in
its standards, the underlying designated use and criterion addressed by
the WQS variance, unless the State adopts and EPA approves a revision
to the underlying designated use and criterion consistent with
Sec. Sec.  131.10 and 131.11. All other applicable standards not
specifically addressed by the WQS variance remain applicable.
    (3) A WQS variance, once adopted by the State and approved by EPA,
shall be the applicable standard for purposes of the Act under Sec.
131.21(d) through (e), for the following limited purposes. An approved
WQS variance applies for the purposes of developing NPDES permit limits
and requirements under 301(b)(1)(C), where appropriate, consistent with
paragraph (a)(1) of this section. States and other certifying entities
may also use an approved WQS variance when issuing certifications under
section 401 of the Act.
    (4) A State may not adopt WQS variances if the designated use and
criterion addressed by the WQS variance can be achieved by implementing
technology-based effluent limits required under sections 301(b) and 306
of the Act.
    (b) Requirements for Submission to EPA. (1) A WQS variance must
include:
    (i) Identification of the pollutant(s) or water quality
parameter(s), and the water body/waterbody segment(s) to which the WQS
variance applies. Discharger(s)-specific WQS variances must also
identify the permittee(s) subject to the WQS variance.
    (ii) The requirements that apply throughout the term of the WQS
variance. The requirements shall represent the highest attainable
condition of the water body or waterbody segment applicable throughout
the term of the WQS variance based on the documentation required in
(b)(2) of this section. The requirements shall not result in any
lowering of the currently attained ambient water quality, unless a WQS
variance is necessary for restoration activities, consistent with
paragraph (b)(2)(i)(A)(2) of this section. The State must specify the
highest attainable condition of the water body or waterbody segment as
a quantifiable expression that is one of the following:
    (A) For discharger(s)-specific WQS variances:
    (1) The highest attainable interim criterion; or
    (2) The interim effluent condition that reflects the greatest
pollutant reduction achievable; or
    (3) If no additional feasible pollutant control technology can be
identified, the interim criterion or interim effluent condition that
reflects the greatest pollutant reduction achievable with the pollutant
control technologies installed at the time the State adopts the WQS
variance, and the adoption and implementation of a Pollutant
Minimization Program.
    (B) For WQS variances applicable to a water body or waterbody
segment:
    (1) The highest attainable interim use and interim criterion; or
    (2) If no additional feasible pollutant control technology can be
identified, the interim use and interim criterion that reflect the
greatest pollutant reduction achievable with the pollutant control
technologies installed at the time the State adopts the WQS variance,
and the adoption and implementation of a Pollutant Minimization
Program.
    (iii) A statement providing that the requirements of the WQS
variance are

either the highest attainable condition identified at the time of the
adoption of the WQS variance, or the highest attainable condition later
identified during any reevaluation consistent with paragraph (b)(1)(v)
of this section, whichever is more stringent.
    (iv) The term of the WQS variance, expressed as an interval of time
from the date of EPA approval or a specific date. The term of the WQS
variance must only be as long as necessary to achieve the highest
attainable condition and consistent with the demonstration provided in
paragraph (b)(2) of this section. The State may adopt a subsequent WQS
variance consistent with this section.
    (v) For a WQS variance with a term greater than five years, a
specified frequency to reevaluate the highest attainable condition
using all existing and readily available information and a provision
specifying how the State intends to obtain public input on the
reevaluation. Such reevaluations must occur no less frequently than
every five years after EPA approval of the WQS variance and the results
of such reevaluation must be submitted to EPA within 30 days of
completion of the reevaluation.
    (vi) A provision that the WQS variance will no longer be the
applicable water quality standard for purposes of the Act if the State
does not conduct a reevaluation consistent with the frequency specified
in the WQS variance or the results are not submitted to EPA as required
by (b)(1)(v) of this section.
    (2) The supporting documentation must include:
    (i) Documentation demonstrating the need for a WQS variance.
    (A) For a WQS variance to a use specified in section 101(a)(2) of
the Act or a sub-category of such a use, the State must demonstrate
that attaining the designated use and criterion is not feasible
throughout the term of the WQS variance because:
    (1) One of the factors listed in Sec.  131.10(g) is met, or
    (2) Actions necessary to facilitate lake, wetland, or stream
restoration through dam removal or other significant reconfiguration
activities preclude attainment of the designated use and criterion
while the actions are being implemented.
    (B) For a WQS variance to a non-101(a)(2) use, the State must
submit documentation justifying how its consideration of the use and
value of the water for those uses listed in Sec.  131.10(a)
appropriately supports the WQS variance and term. A demonstration
consistent with paragraph (b)(2)(i)(A) of this section may be used to
satisfy this requirement.
    (ii) Documentation demonstrating that the term of the WQS variance
is only as long as necessary to achieve the highest attainable
condition. Such documentation must justify the term of the WQS variance
by describing the pollutant control activities to achieve the highest
attainable condition, including those activities identified through a
Pollutant Minimization Program, which serve as milestones for the WQS
variance.
    (iii) In addition to paragraphs (b)(2)(i) and (ii) of this section,
for a WQS variance that applies to a water body or waterbody segment:
    (A) Identification and documentation of any cost-effective and
reasonable best management practices for nonpoint source controls
related to the pollutant(s) or water quality parameter(s) and water
body or waterbody segment(s) specified in the WQS variance that could
be implemented to make progress towards attaining the underlying
designated use and criterion. A State must provide public notice and
comment for any such documentation.
    (B) Any subsequent WQS variance for a water body or waterbody
segment must include documentation of whether and to what extent best
management practices for nonpoint source controls were implemented to
address the pollutant(s) or water quality parameter(s) subject to the
WQS variance and the water quality progress achieved.
    (c) Implementing WQS variances in NPDES permits. A WQS variance
serves as the applicable water quality standard for implementing NPDES
permitting requirements pursuant to Sec.  122.44(d) of this chapter for
the term of the WQS variance. Any limitations and requirements
necessary to implement the WQS variance shall be included as
enforceable conditions of the NPDES permit for the permittee(s) subject
to the WQS variance.

0
9. Add Sec.  131.15 to read as follows:

Sec.  131.15  Authorizing the use of schedules of compliance for water
quality-based effluent limits in NPDES permits.

    If a State intends to authorize the use of schedules of compliance
for water quality-based effluent limits in NPDES permits, the State
must adopt a permit compliance schedule authorizing provision. Such
authorizing provision is a water quality standard subject to EPA review
and approval under section 303 of the Act and must be consistent with
sections 502(17) and 301(b)(1)(C) of the Act.

Subpart C--Procedures for Review and Revision of Water Quality
Standards

0
10. In Sec.  131.20, revise paragraphs (a) and (b) to read as follows:

Sec.  131.20  State review and revision of water quality standards.

    (a) State review. The State shall from time to time, but at least
once every 3 years, hold public hearings for the purpose of reviewing
applicable water quality standards adopted pursuant to Sec. Sec.
131.10 through 131.15 and Federally promulgated water quality standards
and, as appropriate, modifying and adopting standards. The State shall
also re-examine any waterbody segment with water quality standards that
do not include the uses specified in section 101(a)(2) of the Act every
3 years to determine if any new information has become available. If
such new information indicates that the uses specified in section
101(a)(2) of the Act are attainable, the State shall revise its
standards accordingly. Procedures States establish for identifying and
reviewing water bodies for review should be incorporated into their
Continuing Planning Process. In addition, if a State does not adopt new
or revised criteria for parameters for which EPA has published new or
updated CWA section 304(a) criteria recommendations, then the State
shall provide an explanation when it submits the results of its
triennial review to the Regional Administrator consistent with CWA
section 303(c)(1) and the requirements of paragraph (c) of this
section.
    (b) Public participation. The State shall hold one or more public
hearings for the purpose of reviewing water quality standards as well
as when revising water quality standards, in accordance with provisions
of State law and EPA's public participation regulation (40 CFR part
25). The proposed water quality standards revision and supporting
analyses shall be made available to the public prior to the hearing.
* * * * *

0
11. In Sec.  131.22, revise paragraph (b) to read as follows:

Sec.  131.22  EPA promulgation of water quality standards.

* * * * *
    (b) The Administrator may also propose and promulgate a regulation,
applicable to one or more navigable waters, setting forth a new or
revised standard upon determining such a standard is necessary to meet
the requirements of the Act. To constitute an Administrator's
determination that a

new or revised standard is necessary to meet the requirements of the
Act, such determination must:
    (1) Be signed by the Administrator or his or her duly authorized
delegate, and
    (2) Contain a statement that the document constitutes an
Administrator's determination under section 303(c)(4)(B) of the Act.
* * * * *

Subpart D--Federally Promulgated Water Quality Standards

0
12. In Sec.  131.34, revise paragraph (c) to read as follows:

Sec.  131.34  Kansas.

* * * * *
    (c) Water quality standard variances. The Regional Administrator,
EPA Region 7, is authorized to grant variances from the water quality
standards in paragraphs (a) and (b) of this section where the
requirements of Sec.  131.14 are met.

0
13. In Sec.  131.40, revise paragraph (c) to read as follows:

Sec.  131.40  Puerto Rico.

* * * * *
    (c) Water quality standard variances. The Regional Administrator,
EPA Region 2, is authorized to grant variances from the water quality
standards in paragraphs (a) and (b) of this section where the
requirements of Sec.  131.14 are met.

[FR Doc. 2015-19821 Filed 8-20-15; 8:45 am]
 BILLING CODE 6560-50-P