highest attainable condition is reasonable because the resulting
instream concentration reflects the highest attainable interim use and
interim criterion and, therefore, the interim numeric effluent
condition is acting as a surrogate for the interim use and interim
criterion. If current effluent quality represents the highest
attainable condition for a specific permittee(s), then this would
become the interim requirement during the term of the variance. In
situations where a variance addresses a pollutant(s) for which no
feasible wastewater treatment option can be identified, an interim
numeric water quality-based effluent condition reflecting the levels
currently achievable and a requirement to develop and implement a
Pollutant Minimization Program (PMP) \26\ together would constitute the
highest attainable effluent condition.
---------------------------------------------------------------------------

    \26\ A PMP is a structured process to reduce loadings of a
pollutant by identifying, preventing and reducing loadings,
improving processes and improving wastewater treatment.
---------------------------------------------------------------------------

    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.
3. Expiration Date
    The EPA is proposing to add paragraph (b)(1)(iii) at 40 CFR 131.14
to require that all variances must include an expiration date and that
variances must be as short as possible but expire no later than 10
years after the date the state or tribe adopts the variance, consistent
with Sec.  131.14(b)(2).
    Variances are time-limited; therefore, in order to promote
consistency and clarity and to ensure that variances are truly time-
limited, the EPA is proposing that all variances include an explicit
expiration date. Such expiration date must be consistent with the
demonstration that a variance is needed for a specified period of time
based on one of the factors identified in proposed Sec.  131.14(b)(2),
must be as short as possible, and cannot exceed 10 years. Establishing
an expiration date will ensure that the conditions of a variance will
be thoroughly re-evaluated 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 variance may be renewed).
    The EPA believes that up to 10 years is a reasonable duration for a
variance, as it represents two 5-year NPDES permit terms and provides
adequate opportunity to implement measures to make feasible progress. A
maximum of 10 years is also sufficient to reflect changing
circumstances, such as the availability of new economic information or
affordable treatment technology that may impact whether or not a
variance is still warranted.
    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.
ii. Demonstrating the Need for a Variance--Supporting Documentation
    The EPA is proposing to add paragraph (b)(2) at 40 CFR 131.14 to
specify that in order to document that a variance is needed for uses
specified in section 101(a)(2) or sub-categories of such uses, the
state or tribe must demonstrate that attaining the designated use and
criterion is not feasible during the term of the variance because of
one of the factors listed in Sec.  131.10(g) or because actions
necessary to facilitate restoration through dam removal or other
significant wetland or stream reconfiguration activities preclude
attainment of the designated use and criterion while the actions are
being implemented.

    The regulation at 40 CFR 131.10(g) identifies six factors that may
be used to demonstrate, through a UAA, when a use specified in section
101(a)(2) of the Act, or a subcategory of such a use, is unattainable.
The EPA's current position (and its longstanding practice) is that one
of these same Sec.  131.10(g) ``attainability'' factors must be used by
states and tribes to justify why and for how long a variance is
necessary for uses specified in section 101(a)(2) or sub-categories of
such uses. In developing this proposed regulation, the EPA considered
other situations where a variance may be appropriate and the EPA
concluded that the current Sec.  131.10(g) factors do not accommodate
situations where a variance may be necessary to facilitate short-term
efforts to restore the natural physical features (i.e., natural
geomorphology) of a system. Specifically, this is meant to address the
situation when a time-limited exceedance of a criterion might be
expected while efforts for dam removal or significant wetlands or
stream reconfiguration/restoration efforts are underway to facilitate
restoration of the natural physical features of a water body. The
proposed new factor is intended only to cover the length of time
necessary to remove the dam or the length of time in which stream
restoration activities are actively on-going. Although such a variance
might not directly impact a NPDES permittee, it may be necessary to
allow states and tribes to certify that any federal license or permit
that may result in the discharge of pollutants in state/tribal
jurisdiction will still meet their state/tribal WQS, under CWA section
401.
    In determining whether or not to grant a variance for uses
specified in section 101(a)(2) and sub-categories of such uses (and
subsequently submit such a variance to the EPA for review and
approval), the state or tribe must consider and evaluate whether the
available information supports a conclusion that the designated use and
criteria are not feasible to attain during the variance period based on
one of the factors listed in Sec.  131.14(b)(2).
    A factor that has been commonly used to demonstrate the need for a
discharger specific variance is Sec.  131.10(g)(6), which provides that
a state or tribe may remove a designated use if ``[c]ontrols more
stringent than those required by sections 301(b) and 306 of the Act
would result in substantial and widespread economic and social
impact.'' The Interim Economic Guidance for Water Quality Standards,
published March 1995 (see http://water.epa.gov/scitech/swguidance/standards/economics/) provides guidance on the types of information
that a state or tribe should consider evaluating and include in its
record to support a variance based on Sec.  131.10(g)(6).\27\
---------------------------------------------------------------------------

    \27\ The Sec.  131.10(g)(6) analysis would include costs of
point source controls and the impacts on the surrounding community.
---------------------------------------------------------------------------

    The state's or tribe's record for granting a variance based on
``Human caused conditions or sources of pollution prevent the
attainment of the use and cannot be remedied or would cause more
environmental damage to correct than to leave in place'' \28\ may
include, but not be limited to, consideration and evaluation of the
following types of available information:
---------------------------------------------------------------------------

    \28\ As specified in Sec.  131.10(g)(3) and cross-referenced in
Sec.  131.14(b)(2)(i).
---------------------------------------------------------------------------

     Monitoring data to determine the current ambient
conditions.
     Data/maps showing the geographical extent of the problem.
     Engineering studies and literature of the relevant
remediation alternatives and best management practices that could be
implemented and documentation that none of the alternatives or
practices, if implemented, would result in attaining the designated use
and criteria within the variance timeframe.
     Description, with supporting information from the
scientific literature, of the environmental impacts associated with the
remedial alternatives and an analysis of what could be done in an
environmentally safe manner. Such an analysis would facilitate a
determination of whether the human caused condition or source of
pollution would cause more environmental harm to remedy than to leave
in place.
     Modeling data showing the associated pollutant reductions
achievable within the timeframe of the variance compared to reductions
needed to achieve the designated use and criteria.
    A variance should be a transparent mechanism that allows a state,
tribe or discharger a defined period of time to conduct any necessary
studies so long as the state or tribe demonstrates the need for the
variance in accordance with the regulations and the state or tribe
retains the applicable criteria for all other pollutants. The EPA
commonly receives questions about whether permit compliance schedules
can be used for this purpose. Permit compliance schedules may only be
used in situations where time is needed for a permittee to come into
compliance with the WQBEL in the permit, not to provide time to address
uncertainty regarding the appropriateness or attainability of the WQS.
    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.
iii. Identifying and Documenting the Controls for Other Sources Related
to the Pollutant(s) and Location(s) Specified in a Waterbody Variance
That Could Be Implemented
    The EPA is proposing to add paragraph (b)(3) at Sec.  131.14 to
specify that, in addition to the other requirements under 131.14(b),
for a waterbody variance (one not limited to a specific discharger or
dischargers), a state or tribe must include an identification and
documentation of any cost-effective and reasonable BMPs for nonpoint
sources related to the pollutant(s) and location(s) specified in the
variance that could be implemented water body wide to make progress
towards attaining the designated use and criterion. A state or tribe
must provide public notice and comment for any such documentation.
    Because other sources of pollution (e.g., nonpoint sources) can
have a significant bearing on whether the designated use and associated
criterion for the entire water body are attainable, it is essential for
states and tribes to consider and provide information to the public
regarding the impact that controlling other sources through application
of cost-effective and reasonable BMPs could have on water quality
before granting a waterbody variance. Doing so could inform the state's
or tribe's assessment of what interim actions may be needed to make
feasible progress towards attaining the designated use and criterion
related to the pollutant(s) and location(s) specified in the variance,
as well as what the highest attainable interim designated use and
criterion may be and for how long they may be needed.
    A similar requirement is set out in the WQS regulation at Sec.
131.10(d) and (h)(2) which specifies that a use is deemed attainable
and cannot be removed if it can be achieved by the imposition of/
implementing effluent limits required under sections 301(b) and 306 of
the Act as well as cost-effective and reasonable best management
practices for nonpoint source control. The EPA's current position is
that before removing a designated use states and tribes must first
evaluate the impact that point and nonpoint source controls might have
on water quality. When conducting such an evaluation, states and tribes
should consider the impacts from

implementing any \29\ cost-effective and reasonable BMPs for nonpoint
source controls water body wide. In situations where it can be
demonstrated that a use is precluded by non-anthropogenic stressors
(e.g., high levels of a naturally occurring metal in a surface water
body), the EPA does not expect states and tribes to evaluate nonpoint
source controls, as controlling nonpoint sources would not lead to
attainment.
---------------------------------------------------------------------------

    \29\ i.e., not just those that may already be required by state
regulations.
---------------------------------------------------------------------------

    The EPA's proposed requirement for waterbody variances differs from
those applicable to designated uses because variances are time-limited
and targeted serving as a tool to facilitate progress toward the
designated use and criterion. It is unnecessary to require states and
tribes to demonstrate that the designated use and criteria are
unattainable even if cost effective and reasonable BMPs were
implemented, as is required when revising a designated use, because
variances do not ``permanently'' downgrade the designated use but
establish a regulatory mechanism by which feasible progress will be
made during the term of the variance. Instead, a requirement to
identify and document cost-effective and reasonable BMPs for other
sources will assist states and tribes in identifying the actions they
may need to implement to meet their interim requirements as well as to
make feasible progress towards attaining the designated use and
criterion.
    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.
c. Part 3--Implementing Variances
    The EPA is proposing to add paragraph (c) at 40 CFR 131.14
specifying that variances serve as the basis of a WQBEL included in a
NPDES permit for the period the variance is in effect. Any activities
required to implement the variance shall be included as conditions of
the NPDES permit for the permittee(s) subject to the variance.
    When variances are adopted and approved, they serve as the basis of
a WQBEL included in a NPDES permit during the variance period. However,
any specific actions that will be necessary for the discharger to
implement the variance and make such feasible progress are typically at
the discretion of the permitting authority. Therefore, in Sec.
131.14(c), the EPA is proposing regulatory language similar to Sec.
131.34(c) and Sec.  131.40(c) linking the requirements of variances to
the NPDES permitting process, specifically 40 CFR 122.44(d)(1)(viii)(A)
that requires the permitting authority to establish limitations that
derive from and comply with the applicable WQS. The EPA believes the
proposed regulatory requirement will ensure proper accountability when
implementing variances. The proposed provision reflects the provisions
in the ``Water Quality Guidance for the Great Lakes System'' (40 CFR
part 132, Appendix F, Procedure 2).
    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.
d. Part 4--How To Renew a Variance
    The EPA is proposing to add paragraph (d) at 40 CFR 131.14 to
specify that to obtain the EPA's approval of a variance renewal, the
state or tribe must meet the requirements of Sec.  131.14 and provide
appropriate documentation of the steps taken to meet the requirements
of the previous variance. Renewal of the variance may be disapproved if
the applicant did not comply with the conditions of the original
variance, or otherwise does not meet the requirements of this section.
For renewal of a waterbody variance, the state or tribe must also
include documentation of whether and to what extent cost-effective and
reasonable BMPs have been implemented to address the pollutant(s)
subject to the variance and the water quality progress achieved during
the variance period.
    Although the EPA is proposing to establish a maximum single
variance term of no more than 10 years, it recognizes that there may be
circumstances in which a renewal of a variance is both necessary and
appropriate. As the EPA's 1998 ANPRM articulates, variances are WQS and
should be continued or extended only where the initial conditions for
granting the variance still apply.\30\ If a variance term will expire
and the applicant complied with the conditions of the original variance
(e.g., feasible progress has been made), but the designated use and
criterion remain unattainable, then renewal of a variance may be an
appropriate option for the state or tribe to consider.
---------------------------------------------------------------------------

    \30\ 63 FR 36759.
---------------------------------------------------------------------------

    The EPA is providing an additional requirement for waterbody
variances because both point and nonpoint sources are contributing to
the water quality challenges. The state or tribe must document whether
and to what extent BMPs have been implemented and the water quality
progress achieved during the variance period.
    This proposed regulation explicitly provides that the EPA may
disapprove a renewal of the variance if the applicant did not comply
with the conditions of the original variance, or otherwise does not
meet the requirements of Sec.  131.14. The EPA recognizes that
circumstances out of the permittee, state's or tribe's control may
impact the ability to meet the specific conditions and requirements of
the variance, even if all required actions to implement the variance
were completed. The proposed regulatory language allows the EPA to
consider these factors when determining whether to grant a WQS variance
renewal. If the EPA disapproves the variance renewal, then the state or
tribe must implement its water quality program to meet the applicable
designated use and associated criteria or conduct a UAA to justify a
revision to the designated use and associated criteria.
    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.
e. Part 5--Variances for the EPA-Promulgated Designated Uses
    The EPA is proposing to delete detailed variance procedures
promulgated by the EPA in 40 CFR 131.34(c) and 131.40(c) and replace
them with language specifying that the appropriate Regional
Administrators may grant variances from the EPA-promulgated regulations
for Kansas and Puerto Rico consistent with this proposed requirements
at Sec.  131.14.
    The EPA promulgated variance procedures that the Regional
Administrator could use to grant variances from the specific WQS the
EPA promulgated for Kansas and Puerto Rico in Sec.  131.34 and 131.40.
This proposal reflects the most efficient and transparent approach to
ensure that variances granted by the Regional Administrator for the
federally promulgated standards in Kansas and Puerto Rico meet the same
requirements as the rest of the United States once the EPA finalizes
the nationally applicable revisions to 40 CFR part 131.
    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.

G. Provisions Authorizing the Use of Permit-Based Compliance Schedule

1. The EPA Proposal
    The EPA is proposing to add a new regulatory provision at Sec.
131.15 to be consistent with the decision of the EPA Administrator in
In the Matter of Star-

Kist Caribe, Inc. (1990 WL 324290 (EPA), 1990 EPA App. LEXIS 45, 3 EAD
172 (April 16, 1990)). This provision would clarify that a permitting
authority may only issue compliance schedules for WQBELs in NPDES
permits if the state or tribe has authorized issuance of such
compliance schedules pursuant to state or tribal law in its water
quality standards or implementing regulations. Any such compliance
schedule authorizing provision is a WQS subject to the EPA's review and
approval. The proposed provision would also clarify that individual
compliance schedules issued pursuant to such authorizing provisions are
not themselves WQS but must be consistent with CWA section 502(17), the
state's or tribe's EPA-approved compliance schedule authorizing
provision, and the requirements of 40 CFR 122.2 and 122.47.
2. Rationale for Revision
    CWA section 502(17) defines ``schedule of compliance'' to mean ``a
schedule of remedial measures including an enforceable sequence of
actions or operations leading to compliance with an effluent
limitation, other limitation, prohibition, or standard.'' The EPA's
NPDES regulation at 40 CFR 122.2 defines a schedule of compliance as
``a schedule of remedial measures included in a `permit,' including an
enforceable sequence of interim requirements . . . leading to
compliance with the CWA and regulations.'' Section 301(b)(1)(C) of the
Act specifies that there shall be achieved ``. . . not later than July
1, 1977, any more stringent limitation, including those necessary to
meet WQS, treatment standards, or schedules of compliance, established
pursuant to any State law or regulations (under authority preserved by
section 1370 of this title) or any other Federal law or regulation, or
required to implement any applicable water quality standard established
pursuant to this chapter.''
    In, In the Matter of Star-Kist Caribe, Inc., the EPA Administrator
(in an appeal of an EPA-issued NPDES permit) interpreted CWA
301(b)(1)(C) to mean that (1) after July 1, 1977, permits must require
immediate compliance with (i.e., may not contain compliance schedules
for) effluent limitations based on WQS adopted before July 1, 1977, and
(2) permit compliance schedules are allowed for effluent limitations
based on WQS adopted after that date only if the state or tribe has
clearly indicated in its WQS or implementing regulations that it
intends to allow them (i.e., the state's or tribe's WQS or implementing
regulations must contain a provision authorizing the use of permit-
based compliance schedules). The latter requirement ensures that a
permit including such a compliance schedule still meets WQS pursuant to
CWA section 301(b)(1)(C).
    The EPA's current WQS regulation is silent regarding compliance
schedules and compliance schedule authorizing provisions. As a result,
despite Star-Kist, the EPA is concerned that state/tribal permitting
authorities may be including compliance schedules in permits, thus
delaying compliance with a WQS-based WQBEL, even though the state/tribe
may not have authorized the use of such compliance schedules in its WQS
or implementing regulations.
    Consistent with the Star-Kist decision, a state or tribe has the
discretion to include a compliance schedule authorizing provision in
its WQS or implementing regulations. Such a provision may also be
codified in a state or tribe's NPDES regulations. However, regardless
of where it appears, a compliance schedule authorizing provision
adopted pursuant to state or tribal law is considered a WQS subject to
the EPA's approval under CWA section 303(c)(3). Although a compliance
schedule authorizing provision does not describe the desired condition
or level of protection of a water body in exactly the same way as a
designated use or water quality criteria, it expresses the state's or
tribe's intent to allow a delay in meeting the desired condition.
Compliance schedule authorizing provisions allow the permitting
authority to provide a permittee additional time to comply with a WQBEL
that derives from and complies with the applicable WQS beyond the date
of permit issuance, which is the date upon which a permittee is
otherwise required to comply with its WQBEL. In addition, as
articulated in the Star-Kist decision, states and tribes may only allow
this delay if the applicable WQS is new or revised, after July 1, 1977.
    When states and tribes authorize the use of compliance schedules in
their WQS or implementing regulations, they ensure that WQBELs subject
to appropriately issued compliance schedules are ``fully consistent
with, and therefore `meet,' the requirements of the State or tribal
water quality standard, as contemplated by [CWA] 301(b)(1)(C).'' Star-
Kist at 175. Once approved pursuant to CWA 303(c)(3), the compliance
schedule authorizing provision itself becomes part of the applicable
WQS; therefore, any delay in compliance with a WQBEL pursuant to that
permit compliance schedule would be consistent with state/tribal WQS. A
compliance schedule, as defined by section 502(17) of the Act, that is
granted pursuant to a state's or tribe's approved compliance schedule
authorizing provision is, on the other hand, a permitting tool and is
not itself considered a WQS. The EPA has implemented section 502(17) of
the Act in the context of the NPDES permitting program at 40 CFR 122.2
and 122.47. Any compliance schedule, itself, must be consistent with
these provisions.
    The EPA invites comments on the proposed addition of Sec.  131.15.
The EPA also invites comment on any other options it should consider or
on the interpretations expressed in this section.

H. Other Changes

1. The EPA Proposal
    In the course of developing this proposal, the EPA identified
several spelling mistakes, grammatical errors and/or inconsistencies,
and incorrect citations in 40 CFR part 131, as well as the need for
various conforming edits (e.g., provisions that need to be re-numbered
or re-lettered based on a regulatory addition or deletion outlined in
this proposal). The EPA is proposing the following changes:
     Sec.  131.2: Change ``. . . necessary to protect the
uses'' to ``. . . that protect the designated uses'' (consistency with
terminology in Sec.  131.11).
     Sec.  131.3(h): Change ``technology-bases'' to
``technology-based'' (spelling mistake).
     Sec.  131.3(j): Delete ``the Trust Territory of the
Pacific Islands.'' \31\ Insert the word ``the'' in front of ``water
quality standards program'' (grammatical clarification).
---------------------------------------------------------------------------

    \31\ ``The Trust Territory of the Pacific Islands'' became the
``Commonwealth of the Northern Mariana Islands'' in 1986 via
Presidential Proclamation. See  http://www.presidency.ucsb.edu/ws/index.php?pid=36688#axzz1XrK7AXLN.
---------------------------------------------------------------------------

     Sec.  131.5(a)(1): Change ``. . . has adopted water uses''
to ``. . . has adopted designated water uses'' (grammatical
clarification).
     Sec.  131.5(a)(2): Insert ``. . . based on sound
scientific rationale'' (consistency with language in Sec.  131.11).
     Sec.  131.10(j): Insert ``and Sec.  131.10(g)'' before the
word ``whenever'' (consistency with proposed revisions to Sec.
131.10(g)).
     Sec.  131.10(j)(2): Insert ``, to remove a subcategory of
such a use,'' after the first instance of ``. . . specified in section
101(a)(2) of the Act'' (legal clarification that a UAA is also required
when removing a subcategory of a use specified in section 101(a)(2) of
the Act without adopting another use in its place).

     Sec.  131.11(a)(2): Change reference from ``40 CFR part
35'' to ``40 CFR part 130'' to reflect the correct citation.
     Sec.  131.11(b): Italicize ``Form of criteria''
(consistency with formatting in Sec.  131.11(a)).
     Sec.  131.12(a)(2): Insert ``the protection and'' into the
phrase ``propagation of fish, shellfish and wildlife'' to be consistent
with CWA 101(a)(2) and the rest of the WQS regulation at part 131.
Change ``assure'' to ``ensure'' (grammatical clarification).
     Sec.  131.20(b): Change ``hold a public hearing'' to
``hold public hearings'' and add ``or revising'' after ``reviewing''
(consistency with CWA 303(c) and Sec.  131.20(a)). Insert ``EPA's'' in
front of ``public participation regulation'' (clarification that 40 CFR
part 25 is the EPA's regulation). Delete the phrase ``EPA's water
quality management regulation (40 CFR 130.3(b)(6))'' (nonexistent
citation).
    The EPA invites comments on the proposed amendments described
above. The EPA also invites comment on any other options it should
consider or on the interpretations expressed in this section.

IV. When does this action take effect?

    Comments on this proposed rulemaking must be received on or before
December 3, 2013. Should this proposed rulemaking be finalized, the
effective date will likely be 60 days after date of publication of the
final rule in the Federal Register. For judicial review purposes, the
effective date will likely be 60 days after date of publication of the
final rule in the Federal Register.
    The EPA is proposing to require states and tribes to meet the
requirements of the final rule on the effective date of the final rule.
The EPA's expectation is that, where a new or revised requirement
necessitates a change to state or tribal WQS, such changes will occur
within the next triennial review that the state or tribe initiates
after the EPA's publication of the final rule.
    The EPA invites comments on the proposed effective dates. The EPA
also invites comment on any other options it should consider or on the
interpretations expressed in this section.

V. Economic Impacts on State and Tribal WQS Programs

    The EPA evaluated the potential incremental administrative burdens
and costs that may be associated with this proposal. Incremental burden
and costs are those above and beyond the burden and costs associated
with implementation of current WQS regulations. Because this proposal
will not establish any requirements directly applicable to regulated
entities, the focus of the EPA's economic analysis is to estimate the
potential administrative burden and costs to state, tribal, and
territorial governments, and the EPA. The EPA's economic analysis is
documented in Economic Analysis for the Water Quality Standards
Regulatory Clarifications (Proposed Rule) and can be found in the
docket for this proposal.
    The EPA assessed the potential incremental burden and costs
associated with this proposed regulation revisions by first identifying
those elements of the proposed revisions that may impose incremental
burdens and costs. The EPA estimated the incremental number of labor
hours potentially required by states and tribes to comply with those
elements of the proposed regulations, and then estimated the costs
associated with those additional labor hours. The EPA identified four
areas where incremental burdens and costs may be anticipated: (1) One-
time burden and costs associated with state and tribal rulemaking
activities because states and tribes may need to adopt new or revised
provisions into their WQS, (2) annual costs associated with designating
uses because identifying the highest attainable use when performing a
UAA may require additional labor hours, (3) annual costs associated
with antidegradation implementation including reviewing a greater
number and more complex antidegradation requests, and (4) annual costs
associated with additional development and documentation of variance
requests. In addition to the proposed requirements included in this
proposal, the EPA is considering and requesting comment on whether the
EPA should include a requirement that antidegradation implementation
methods be formally adopted as WQS and thus subject to the EPA's review
and approval or disapproval. Incremental burden and costs were
estimated for all 50 states, the District of Columbia, 5 territories,
and the 39 Indian tribes authorized to administer a WQS program with
WQS approved by the EPA.
    Estimates of the incremental administrative burden and costs to
state and tribal governments associated with this proposal without the
requirement to adopt antidegradation implementation methods as WQS are
summarized in the following table:

  Summary of Incremental Administrative Burden and Costs to State and Tribal Governments Associated With This Proposal Without the Requirement To Adopt
                                                      Antidegradation Implementation Methods as WQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                One-time                                       Recurring
                                                          ----------------------------------------------------------------------------------------------
                        Provision                                                                 Annualized cost
                                                             Burden (hours)      Cost (2013$      (2013$ millions/    Burden (hours/      Cost (2013$
                                                                                millions)          year) \1\            year)          millions/year)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rulemaking Activities....................................       9,500-47,500        $0.46-$2.28        $0.03-$0.15                 --                 --
Designated Uses..........................................                 --                 --                 --          240-1,200        $0.01-$0.06
Antidegradation \2\......................................                 --                 --                 --     97,070-145,605        $4.61-$7.04
Variances................................................                 --                 --                 --        4,620-5,310        $0.22-$0.26
����������������������������������������������������������
    National Total.......................................       9,500-47,500        $0.46-$2.28        $0.03-$0.15    101,930-152,115        $4.84-$7.36
--------------------------------------------------------------------------------------------------------------------------------------------------------
`--' = not applicable.
\1\ Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for
  comparative purposes.
\2\ Includes annual costs associated with reviewing a greater number and more complex antidegradation requests.

    Estimates of the incremental administrative burden and costs to the
EPA associated with this proposal without the requirement to adopt
antidegradation implementation methods as WQS are summarized in the
following table:

       Summary of Potential Incremental Administrative Burden and Costs to the EPA Associated With This Proposal Without the Requirement To Adopt
                                                      Antidegradation Implementation Methods as WQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      One-time                                                                     Recurring
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   Annualized cost               Burden                                                              Burden
 Costs to states    Costs to the    to the agency  ---------------------------------- Costs to states    Costs to the  ---------------------------------
   and tribes        agency \1\       \2\ (2013$                                         and tribes       agency \1\
 (2013$ million)  (2013$ million)    million per       Hours \3\         FTEs \4\      (2013$ million   (2013$ million   Hours per year   FTEs per year
                                        year)                                            per year)        per year)           \3\              \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
    $0.46-$2.28      $0.09-$0.46      $0.01-$0.03      1,200-6,040         0.58-2.9      $4.84-$7.36      $0.97-$1.47    12,810-19,470        6.16-9.36
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Assuming that the incremental costs to the EPA are equal to 20% of the costs to states and tribes.
\2\ Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for
  comparative purposes.
\3\ Total costs to the Agency divided by hourly wage rate (including overhead and benefits) of $75.55 per hour.
\4\ Burden hours to the Agency divided by hours worked by full-time equivalent (FTE) employees per year (2,080 hours per year).

    A summary of the combined estimated costs to all potentially affect
states, tribes, and the EPA without the requirement to adopt
antidegradation implementation methods as WQS are summarized in the
following table:

     Summary of Potential Incremental Administrative Burdens and Costs Associated With the Proposed Rule to States, Tribes, and the EPA Without the
                                           Requirement To Adopt Antidegradation Implementation Methods as WQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                One-time                                       Recurring
                                                          ----------------------------------------------------------------------------------------------
                         Entities                                                                 Annualized cost
                                                             Burden (hours)      Cost (2013$         \1\ (2013$       Burden (hours/       Cost (2013
                                                                                millions)        million/year)          year)         $millions/year)
--------------------------------------------------------------------------------------------------------------------------------------------------------
States and tribes........................................       9,500-47,500        $0.46-$2.28        $0.03-$0.15    101,930-152,115        $4.84-$7.36
Agency...................................................        1,200-6,040        $0.09-$0.46        $0.01-$0.03      12,810-19,470        $0.97-$1.47
                                                          ----------------------------------------------------------------------------------------------
    Total................................................      10,700-53,540        $0.55-$2.74        $0.04-$0.18    114,740-171,585        $5.81-$8.83
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for
  comparative purposes.

    To estimate the total annual cost of this proposal without the
requirement to adopt antidegradation implementation methods as WQS
which include both one-time costs and recurring costs, the EPA
annualized the one-time costs over a period of 20 years. Using a 20-
year annualization period and a discount rate of three percent, total
annual costs for this proposal without the requirement to adopt
antidegradation implementation methods as WQS are estimated to range
from $5.84 million ($0.04 million + $5.81 million) to $9.01 million
($0.18 million + $8.83 million) per year.
    In addition to the proposed requirements included in this proposal,
the EPA is considering and requesting comment on whether the EPA should
include a requirement that antidegradation implementation methods be
formally adopted as WQS and thus subject to the EPA's review and
approval or disapproval. This additional requirement would require
affected entities to develop or revise antidegradation implementation
methods, and adopt the implementation methods in WQS, resulting in one-
time (nonrecurring) burden and costs. Estimates of the incremental
administrative burden and costs to state and tribal governments
associated with this proposal including the requirement to adopt
antidegradation implementation methods into WQS are summarized in the
following table:

   Summary of Incremental Administrative Burden and Costs to State and Tribal Governments Associated With This Proposal With the Requirement To Adopt
                                                      Antidegradation Implementation Methods as WQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                One-time                                       Recurring
                                                          ----------------------------------------------------------------------------------------------
                        Provision                                                                 Annualized cost
                                                             Burden (hours)      Cost (2013$         \1\ (2013$       Burden (hours/      Cost (2013$
                                                                                millions)        millions/year)         year)          millions/year)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Rulemaking Activities....................................       9,500-47,500        $0.46-$2.28        $0.03-$0.15                 --                 --
Designated Uses..........................................                 --                 --                 --          240-1,200        $0.01-$0.06
Antidegradation..........................................      33,600-67,200          1.61-3.23          0.11-0.22     97,070-145,605          4.61-7.04
Variances................................................                 --                 --                 --        4,620-5,310          0.22-0.26
                                                          ----------------------------------------------------------------------------------------------
    National Total.......................................     43,100-114,700          2.07-5.51          0.14-0.37    101,930-152,115          4.84-7.36
--------------------------------------------------------------------------------------------------------------------------------------------------------
`--' = not applicable.
\1\ Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for
  comparative purposes.

    Estimates of the incremental administrative burden and costs to the
EPA associated with this proposal including the requirement to adopt
antidegradation implementation

methods into WQS are summarized in the following table:

 Summary of Potential Incremental Administrative Burden and Costs to the EPA Associated With This Proposal With the Requirement To Adopt Antidegradation
                                                              Implementation Methods as WQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                      One-time                                                                     Recurring
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   Annualized cost               Burden                                                              Burden
 Costs to states    Costs to the    to the agency  ---------------------------------- Costs to states    Costs to the  ---------------------------------
   and tribes        agency \1\       \2\ (2013$                                         and tribes       agency \1\
 (2013$ million)  (2013$ million)    million per       Hours \3\         FTEs \4\      (2013$ million   (2013$ million   Hours per year   FTEs per year
                                        year)                                            per year)        per year)           \3\              \4\
--------------------------------------------------------------------------------------------------------------------------------------------------------
    $2.07-$5.51      $0.41-$1.10      $0.03-$0.07     5,480-14,570        2.63-7.01      $4.84-$7.36      $0.97-$1.47    12,810-19,470        6.16-9.36
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Assuming that the incremental costs to the EPA are equal to 20% of the costs to states and tribes.
\2\ Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for
  comparative purposes.
\3\ Total costs to the Agency divided by hourly wage rate (including overhead and benefits) of $75.55 per hour.
\4\ Burden hours to the Agency divided by hours worked by full-time equivalent (FTE) employees per year (2,080 hours per year).

    A summary of the combined estimated costs of this proposal to all
potentially affect states, tribes, and the EPA including the
requirement to adopt antidegradation implementation methods into WQS
are summarized in the following table.

 Summary of Potential Incremental Administrative Burdens and Costs Associated With the Proposed Rule to States, Tribes, and the EPA With the Requirement
                                                 To Adopt Antidegradation Implementation Methods as WQS
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                One-time                                       Recurring
                                                          ----------------------------------------------------------------------------------------------
                         Entities                                                                 Annualized cost
                                                             Burden (hours)      Cost (2013$         \1\ (2013$       Burden (hours/       Cost (2013
                                                                                millions)        millions/year)         year)         $millions/year)
--------------------------------------------------------------------------------------------------------------------------------------------------------
States and tribes........................................     43,100-114,700        $2.07-$5.51        $0.14-$0.37    101,930-152,115        $4.84-$7.36
Agency...................................................       5,480-14,570        $0.41-$1.10        $0.03-$0.07      12,810-19,470        $0.97-$1.47
                                                          ----------------------------------------------------------------------------------------------
    Total................................................     48,580-129,270        $2.48-$6.61        $0.17-$0.44    114,740-171,585        $5.81-$8.83
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Although the EPA expects these one-time costs to occur once over a 3 year period, they are annualized here at 3% discount rate over 20 years for
  comparative purposes.

    To estimate the total annual cost of this proposal including the
requirement to adopt antidegradation implementation methods as WQS
which include both one-time costs and recurring costs, the EPA
annualized the one-time costs over a period of 20 years. Using a 20-
year annualization period and a discount rate of three percent, total
annual costs for this proposal with the requirement to adopt
antidegradation implementation methods as WQS are estimated to range
from $5.98 million ($0.17 million + $5.81 million) to $9.27 million
($0.44 million + $8.83 million) per year.
    In addition to estimating potential burden and costs, the EPA also
evaluated the potential benefits associated with this proposal. States,
tribes, stakeholders, and the public will benefit from the proposed
clarifications of the WQS regulations by ensuring better utilization of
available WQS tools that allow states and tribes the flexibility to
implement their WQS in an efficient manner while providing transparency
and open public participation. Although associated with potential
administrative burden and costs in some areas, this proposal has the
potential to partially offset these costs by reducing regulatory
uncertainty and consequently increasing overall program efficiency.
Furthermore, more efficient and effective implementation of state and
tribal WQS has the potential to provide a variety of economic benefits
associated with cleaner water including the availability of clean,
safe, and affordable drinking water, 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 proposal include the protection and improvement of
public health and greater recreational opportunities. The EPA
acknowledges that achievement of any benefits associated with cleaner
water would involve additional control measures, and thus costs to
regulated entities and non-point sources, that have not been included
in the economic analyses for this proposed rule. The EPA has not
attempted to quantify either the costs of such control measures that
might ultimately be required as a result of this rule, or the benefits
they would provide. Complete details on how the EPA evaluated burden,
costs, and benefits are documented in Economic Analysis for the Water
Quality Standards Regulatory Clarifications (Proposed Rule) included in
the docket for this proposal.
    The EPA invites comments on its economic analysis. Specifically,
the EPA invites comments on the accuracy of the burden and costs
estimates presented in this proposal, and any actual state or tribal
data that may help to refine these estimates. This proposal does not
establish any requirements directly applicable to regulated point
sources or nonpoint sources of pollution, although the EPA recognizes
that these sources could potentially incur costs as a result of changes
to WQS adopted by states and tribes as a result of this rule (states
and tribes could also adopt new or revised WQS independent of this
proposed rule). However, unlike some other EPA WQS rules for which an
economic analysis was prepared, this proposal does not lend itself to
identification of readily predictable outcomes regarding changes to
state water quality standards that might result. Likewise, the EPA
could

not predict requirements that could ultimately be imposed on NPDES
permittees and nonpoint sources. Thus, the EPA has not analyzed
potential costs or cost savings associated with any consequences of
revised state or tribal WQS. Nonetheless, the EPA is interested in the
potential implications of this proposal for regulated entities and non-
point sources and on whether and how it should incorporate such costs
in its economic analysis of the rule.

VI. Statutory and Executive Order Reviews

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

    Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action.'' Accordingly, the
EPA submitted this action to the Office of Management and Budget (OMB)
for review under E.O.s 12866 and 13563 (76 FR 3821, January 21, 2011)
and any changes made in response to OMB recommendations have been
documented in the docket for this action.
    In addition, the EPA prepared an analysis of the potential costs
and benefits associated with this action. This analysis is contained in
``Economic Analysis for the Proposed Revisions to Water Quality
Standards Regulatory Revisions.'' A copy of the analysis is available
in the docket for this action and the analysis is briefly summarized in
Section V of the preamble.

B. Paperwork Reduction Act

    The information collection requirements in this proposed rule have
been submitted for approval to the Office of Management and Budget
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The
Information Collection Request (ICR) document prepared by the EPA has
been assigned EPA ICR number 2449.01.
    The EPA is proposing the WQS Regulatory Clarifications Rule to
improve the regulation's effectiveness in helping restore and maintain
the chemical, physical, and biological integrity of the nation's
waters. The core of the current regulation has been in place since
1983; since then, a number of issues have been raised by stakeholders
or identified by the EPA in the implementation process that will
benefit from clarification and greater specificity. The proposed rule
addresses the following key program areas: (1) Administrator's
determinations that new or revised WQS are necessary, (2) designated
uses, (3) triennial reviews, (4) antidegradation, (5) variances to WQS,
and (5) compliance schedule authorizing provisions. In addition to the
proposed requirements included in this proposal, the EPA is considering
and requesting comment on whether the EPA should require that
antidegradation implementation methods be adopted as WQS and thus
subject to the EPA's review and approval or disapproval. This mandatory
information collection will ensure the EPA has the needed information
to review standards and make approvals or disapprovals in accordance
with provisions in the proposed Water Quality Standards Regulatory
Clarifications Rule. Under the Clean Water Act (CWA), the EPA is
responsible for reviewing and approving or disapproving new and revised
WQS submitted by states and tribes. The EPA will use the information
required by this proposed rule to carry out its responsibility under
the CWA. In reviewing state and tribal standards submissions, the EPA
considers whether submissions are consistent with the WQS regulation at
part 131. The WQS Regulatory Clarifications Rule will add new
requirements to part 131. If the information collection activities in
the WQS Regulatory Clarifications Rule are not carried out, specific
improvements in the implementation of the WQS program will not take
place. In some cases, implementation and control steps such as total
maximum daily loads and National Pollutant Discharge Elimination System
permits may not be as protective as necessary under the CWA.
    Burden is defined at 5 CFR 1320.3(b). The EPA expects that the
proposed rule will lead to incremental burden hours and labor costs in
the following areas: rulemaking activities, designated uses,
antidegradation, and variances to WQS. The EPA estimates the cost of
labor from data on state government hourly wage rates (data are not
available for tribes). The labor categories chosen as applicable to WQS
regulatory revision efforts are Environmental Scientist, Department
Manager, Environmental Engineer, and Economist. Given the 2012 labor
rates for these categories, inflated to March 2013 dollars using the
Bureau of Labor Statistics (BLS) Employment Cost Index for professional
and related state and local government workers (116.0/115.0 = 1.01),
and accounting for benefits using the BLS Employer Cost for Employee
Compensation for state and local professional government workers (32.7%
of total compensation is attributable to benefits), the EPA calculated
an average hourly wage rate of $48.
    The EPA estimates the incremental number of labor hours using
historical information and data, and the historical knowledge and best
professional judgment of EPA personnel with experience administering
the WQS program. A total of 95 governmental entities are potentially
affected by the proposed rule: 50 states, the District of Columbia, 6
territories, and 39 tribes that have authority to administer WQS
programs. Rulemaking activities result in one-time (nonrecurring)
burden and costs. Note that these one-time activities will occur over
an initial three-year period. The proposed rule will also require
affected entities to undertake the following activities each year:
conduct use attainability analyses to determine the highest attainable
use, review alternative analyses in antidegradation requests, review
additional antidegradation requests for high quality waters, comply
with new submission requirements for variances, and review additional
variance renewal applications. Given the EPA's estimates of the number
and frequency of labor hours associated with each of the proposed
provisions, the total one-time incremental burden (during each of the
first three years) associated with the proposed rule without requiring
adoption of antidegradation implementation methods as WQS ranges from
9,500 hours to 47,500 hours, while the annual incremental burden ranges
from 101,930 hours to 152,115 hours. Given an hourly wage rate of $48,
these labor hours lead to total one-time costs (incurred during each of
the first three years) of approximately $0.46 million to $2.28 million
and annual costs of $4.84 million to $7.36 million. These incremental
burden and costs are associated with a total of 32 one-time responses
per year during the initial three-year period for rulemaking
activities. In addition, the number of annual responses is 1,405
responses.
    In addition to the proposed requirements included in this proposal,
the EPA is considering and requesting comment on whether the EPA should
include a requirement that antidegradation implementation methods be
formally adopted as WQS and thus subject to the EPA's review and
approval or disapproval. This additional requirement would require
affected entities to develop or revise antidegradation implementation
methods, and adopt antidegradation implementation methods as WQS
resulting in one-time (nonrecurring) burden and costs. Including this

additional requirement, the total one-time incremental burden (during
each of the first three years) associated with the proposed rule ranges
from 43,100 hours to 114,700 hours, while the annual incremental burden
remains the same ranging from 101,930 hours to 152,115 hours. Given an
hourly wage rate of $48, these labor hours lead to total one-time costs
(incurred during each of the first three years) of approximately $2.07
to $5.51 million and annual costs of $4.84 to $7.36 million. These
incremental burden and costs are associated with a total of 32 one-time
responses per year during the initial three-year period for rulemaking
activities. In addition, the number of annual responses is 1,405
responses.
    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.
    To comment on the Agency's need for this information, the accuracy
of the provided burden estimates, and any suggested methods for
minimizing respondent burden, the EPA has established a public docket
for this rule, which includes this ICR, under Docket ID number EPA-HQ-
OW-2010-0606. Submit any comments related to the ICR to the EPA and
OMB. See ADDRESSES section at the beginning of this notice for where to
submit comments to the EPA. Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget,
725 17th Street NW., Washington, DC 20503, Attention: Desk Office for
EPA. Since OMB is required to make a decision concerning the ICR
between 30 and 60 days after September 4, 2013, a comment to OMB is
best assured of having its full effect if OMB receives it by October 4,
2013. The final rule will respond to any OMB or public comments on the
information collection requirements contained in this proposal.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this rule on small
entities, small entity is defined as (1) a small business as defined by
the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    After considering the economic impacts of this proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities.
    State and tribal governments responsible for administering or
overseeing water quality programs may be directly affected by this
rulemaking, as states and 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. The EPA continues to be
interested in the potential impacts of the proposed rule on small
entities and welcomes comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    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 for the private sector in any one
year. The EPA estimates total annual costs to states and tribes to
range from $4,840,000 to $7,360,000. Thus, this rule is not subject to
the requirements of sections 202 or 205 of the Unfunded Mandates Reform
Act of 1995 (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)

    Under section 6(b) of E.O. 13132, the EPA may not issue an action
that has federalism implications, that imposes substantial direct
compliance costs, and that is not required by statute, unless the
Federal government provides the funds necessary to pay the direct
compliance costs incurred by state and local governments, or the EPA
consults with state and local officials early in the process of
developing the proposed action. In addition, under section 6(c) of E.O.
13132, the EPA may not issue an action that has federalism implications
and that preempts state law, unless the Agency consults with state and
local officials early in the process of developing the proposed action.
    The EPA has concluded that the action does not have federalism
implications. The EPA is proposing changes to provide clarity and
transparency in the WQS regulation that may require state and local
officials to reevaluate or revise their standards. However, it will not
impose substantial direct compliance costs on state or local
governments, nor will it preempt state law. Thus, the requirements of
sections 6(b) and 6(c) of the E.O. do not apply to this action.
    Consistent with the EPA's policy, the EPA nonetheless consulted
with state and local officials early in the process of developing the
proposed action to allow them to provide meaningful and timely input
into its development. In August and September 2010, the EPA consulted
with representatives from states and intergovernmental associations to
hear their views on the proposed regulatory changes. 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 of antidegradation and designated uses. The
EPA's view is that such changes would generally codify the EPA's
current practice and provide clear expectations to state and local
regulators. Participants urged the EPA to ensure that states with
satisfactory regulations in these areas are not unduly burdened by the
proposed changes.
    Keeping with the spirit of E.O. 13132, and consistent with the
EPA's policy to promote communications between the EPA and state and
local governments, the EPA specifically solicits comment on this
proposed action from state and local officials. In particular, the EPA
requests comment on any provision in this proposed rule that state
officials believe would impose an undue burden on state water quality
standards programs.

F. Executive Order 13175

    Subject to the E.O. 13175 (65 FR 67249, November 9, 2000), the EPA
may not issue a regulation that has tribal implications, that imposes
substantial direct compliance costs, and that is not required by
statute, unless the federal government provides the funds necessary to
pay the direct compliance costs incurred by tribal governments, or the
EPA consults with tribal officials early in the process of developing
the proposed regulation and develops a tribal summary impact statement.

    The EPA has concluded that this action may have tribal
implications. However, it will neither impose substantial direct
compliance costs on tribal governments, nor preempt tribal law. To
date, 48 Indian tribes have been approved for treatment in a manner
similar to a state (TAS) for CWA sections 303 and 401. Of the 48
tribes, 39 have federally approved WQS in their respective
jurisdictions. All of these authorized tribes are subject to this
proposed rule. However, this rule might impact other tribes as well
because federal, state or authorized tribal standards may apply to
waters adjacent to the tribal waters. The EPA consulted with tribal
officials early in the process of developing this regulation to allow
them to provide meaningful and timely input into its development. In
August 2010, the EPA held a tribes-only consultation session to hear
their views and answer questions of all interested tribes on the
targeted areas the EPA is considering 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. The EPA has considered the burden to states and tribes
in developing this proposal and, when possible, has chosen to provide
sufficient direction and flexibility to allow tribes to spend resources
addressing other aspects of their WQS programs. The EPA also intends to
release updated guidance in a new edition of the WQS Handbook. The EPA
specifically solicits additional comment on this proposed action from
tribal officials.

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

    This action is not subject to E.O. 13045 (62 FR 19885, April 23,
1997) because it is not economically significant as defined in E.O.
12866, and because the Agency does not believe the environmental health
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'' as defined in
E.O. 13211 (66 FR 28355, May 22, 2001), 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

    Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Pub. L. 104-113, 12(d) (15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies. NTTAA directs the EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards.
Therefore, the EPA is not considering the use of any voluntary
consensus standards.

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

    E.O. 12898 (59 FR 7629, February 16,1994) establishes federal
executive policy on environmental justice. Its main provision directs
federal agencies, to the greatest extent practicable and permitted by
law, to make environmental justice part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects of their programs, policies, and
activities on minority populations and low-income populations in the
United States.
    The EPA has determined that this proposed 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 proposed rulemaking does not directly establish
water quality standards for a state or tribe. In addition, this
proposed rulemaking is national in scope, and therefore is not specific
to a particular geographic area(s).

List of Subjects in 40 CFR Part 131

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

    Dated: August 20, 2013.
Gina McCarthy,
Administrator.

    For the reasons stated in the preamble, the EPA proposes to amend
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. Amend Sec.  131.2 by revising 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. Amend Sec.  131.3 by revising paragraphs (h) and (j), and adding
paragraph (m) to 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 aquatic life, wildlife, and/or
recreation use that is both closest to the uses specified in section
101(a)(2) of the Act and attainable, as determined using best available
data and information through a use attainability analysis defined in
Sec.  131.3(g).
0
4. Amend Sec.  131.5 by:
0
a. Revising paragraphs (a)(1) and (a)(2);
0
b. Redesignating paragraphs (a)(3) through (a)(5) as (a)(4) through
(a)(6) and adding a new paragraph (a)(3); and
0
c. Revising paragraph (b).
    The revisions and additions read as follows:

Sec.  131.5  EPA Authority.

    (a) * * *
    (1) Whether the State has adopted designated water uses which 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;
    (3) Whether the State has adopted an antidegradation policy
consistent with Sec.  131.12(a), and if the State has chosen to adopt
implementation methods, whether those implementation methods are
consistent with Sec.  131.12;
* * * * *
    (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 (a)(6) 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 (a)(6) 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. Amend Sec.  131.10 by revising paragraph (g) introductory text and
paragraphs (j), and (k) to read as follows:

Sec.  131.10  Designation of uses.

* * * * *
    (g) Pursuant to Sec.  131.10(j), States may designate or remove a
use or a sub-category of a use as long as the action does not remove
protection for an existing use, and the State can demonstrate that
attaining the use is not feasible because of one of the six factors in
this paragraph. If a State adopts new or revised water quality
standards based on a use attainability analysis, the State shall also
adopt the highest attainable use and the criteria to protect that use.
To meet this requirement, States may, at their discretion, utilize
their current use categories or subcategories, develop new use
categories or subcategories, or adopt another use which may include a
location-specific use.
* * * * *
    (j) A State must conduct a use attainability analysis as described
in Sec.  131.3(g), and Sec.  131.10(g), whenever:
    (1) The State designates or has designated uses for a water body
for the first time 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 which requires
criteria less stringent than previously applicable.
    (k) A State is not required to conduct a use attainability analysis
whenever:
    (1) The State designates or has designated uses for a water body
for the first time that include the uses specified in section 101(a)(2)
of the Act, or
    (2) The State wishes to remove a designated use that is not
specified in section 101(a)(2) of the Act, or designate a sub-category
of a use specified in section 101(a)(2) of the Act which requires
criteria at least as stringent as previously applicable.
0
6. Amend Sec.  131.11 by revising 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. Amend Sec.  131.12 by revising the section heading and paragraphs
(a) introductory text and (a)(2), and adding paragraph (b) to 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 exceed 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 ensure water
quality adequate to protect existing uses fully. Further, the state
shall ensure 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.
* * * * *
    (b) The State shall develop and make available to the public
statewide methods for implementing the antidegradation policy adopted
pursuant to paragraph (a) of this section. A State's antidegradation
implementation methods shall be designed to achieve antidegradation
protection consistent with paragraph (a) of this section. Such methods
must ensure that:
    (1) High quality waters are identified on a parameter-by-parameter
basis or on a water body-by-water body basis at the State's discretion,
but must not exclude any water body from high quality water protection
solely because not all of the uses specified in CWA section 101(a)(2)
are attained; and
    (2) The State will only make a finding that lowering high water
quality is necessary, pursuant to paragraph (a)(2) of this section,
after conducting an alternatives analysis that evaluates a range of
non-degrading and minimally degrading practicable alternatives that
have the potential to prevent or minimize the degradation associated
with the proposed activity. If the State can identify any-practicable
alternatives, the State must choose one of those alternatives to
implement when authorizing a lowering of high water quality.
0
8. Add Sec.  131.14 to subpart B to read as follows:

Sec.  131.14  Water quality standards variances.

    States may, at their discretion, grant variances subject to the
provisions of this section and public participation requirements at
Sec.  131.20(b). A water quality standards variance (WQS

variance) is a time-limited designated use and criterion for a
specified pollutant(s), permittee(s), and/or water body or waterbody
segment(s) that reflect the highest attainable condition during the
specified time period. WQS variances are water quality standards
subject to EPA review and approval or disapproval and must be
consistent with this section. Any such WQS variances adopted after
[effective date of the final rule] must be consistent with this
regulatory section.
    (a) Applicability:
    (1) All applicable WQS not specifically addressed by the WQS
variance remain applicable.
    (2)(i) Where a state adopts a WQS variance, the State regulations
must continue to reflect the underlying designated use and criterion
unless the State adopts and EPA approves a revision to the underlying
designated use and criterion consistent with Sec.  131.10 or Sec.
131.11.
    (ii) The interim requirements specified in the WQS variance are in
effect during the term of the WQS variance and apply for CWA section
402 permitting purposes and in issuing certifications under section 401
of the Act for the permittee(s), pollutant(s), and/or water body or
waterbody segment(s) covered by the WQS variance. For these limited
purposes, the interim requirements will be the standards applicable for
purposes of the CWA under 40 CFR 131.21(c)-(e).
    (3) A WQS variance shall not be granted if the designated use and
criterion addressed by the proposed WQS variance can be achieved by
implementing technology-based effluent limits required under sections
301(b) and 306 of the Act.
    (b) Submission Requirements:
    (1) A WQS variance must specify the following:
    (i) Identifying information: A WQS variance must identify the
pollutant(s), permittee(s), and/or the water body or waterbody
segment(s) to which the WQS variance applies.
    (ii) WQS that apply during a variance for CWA section 402
permitting purposes and in issuing certifications under section 401 of
the Act: A WQS variance must specify:
    (A) The highest attainable interim use and interim numeric
criterion, or
    (B) An interim numeric effluent condition that reflects the highest
attainable condition for a specific permittee(s) during the term of the
variance. Neither (A) nor (B) of this paragraph shall result in any
lowering of the currently attained water quality unless a time-limited
lowering of water quality is necessary during the term of a variance
for restoration activities, consistent with paragraph (b)(2)(ii) of
this section.
    (iii) Date the WQS variance will expire: States must include an
expiration date for all WQS variances, consistent with paragraph (b)(2)
of this section. WQS variances must be as short as possible but expire
no later than 10 years after state adoption.
    (2) The State must submit a demonstration justifying the need for a
WQS variance. 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
submit a demonstration that attaining the designated use and criterion
is not feasible during the term of the WQS variance because:
    (i) One of the factors listed in Sec.  131.10(g) applies, or
    (ii) Actions necessary to facilitate restoration through dam
removal or other significant wetland or stream reconfiguration
activities preclude attainment of the designated use and criterion
while the actions are being implemented.
    (3) For a waterbody variance, the state must identify and document
any cost-effective and reasonable best management practices for
nonpoint source controls related to the pollutant(s) and location(s)
specified in the WQS variance that could be implemented to make
progress towards attaining the designated use and criterion. A State
must provide public notice and comment for any such documentation.
    (c) Implementing variances in NPDES permits: Consistent with
paragraph (a)(2)(ii) of this section, a WQS variance serves as the
basis of a water quality-based effluent limit included in a NPDES
permit for the period the variance is in effect. Any limitations
required to implement the WQS variance shall be included as conditions
of the NPDES permit for the permittee(s) subject to the WQS variance.
    (d) WQS variance renewals: EPA may approve a WQS variance renewal
if the State meets the requirements of this section and provides
documentation of the actions taken to meet the requirements of the
previous WQS variance. For a waterbody WQS variance renewal, the state
must also provide documentation of whether and to what extent BMPs have
been implemented to address the pollutant(s) subject to the WQS
variance and the water quality progress achieved during the WQS
variance period. Renewal of a WQS variance may be disapproved if the
applicant did not comply with the conditions of the original WQS
variance, or otherwise does not meet the requirements of this section.
0
9. Add Sec.  131.15 to subpart B to read as follows:

Sec.  131.15  Compliance schedule authorizing provisions.

    A State may, at its discretion and consistent with state law,
authorize schedules of compliance for water quality-based effluent
limits (WQBELs) in NPDES permits by including a compliance schedule
authorizing provision in its water quality standards or implementing
regulations. Any such provision is a water quality standard subject to
EPA review and approval and must be consistent with sections 502(17)
and 301(b)(1)(C) of the Act. Individual compliance schedules issued
pursuant to such authorizing provisions are not themselves water
quality standards. Individual compliance schedules must be consistent
with CWA section 502(17), the state's EPA-approved compliance schedule
authorizing provision, and the requirements of Sec. Sec.  122.2 and
122.47.

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

0
10. Amend Sec.  131.20 by revising 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 and, as appropriate, modifying and
adopting standards; in particular, any water body segment with water
quality standards 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
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.
Similarly, a State shall re-examine its water quality criteria to
determine if any criteria should be revised in light of any new or
updated CWA section 304(a) criteria recommendations to assure that
designated uses continue to be protected. Procedures States establish
for identifying and reviewing water bodies for review should be
incorporated into their Continuing Planning Process.
    (b) Public Participation. The State shall hold public hearings for
the purpose of reviewing or 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. Amend Sec.  131.22 by revising 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 States, 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, 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. Amend Sec.  131.34 by revising 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. Amend Sec.  131.40 by revising 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. 2013-21140 Filed 9-3-13; 8:45 am]
BILLING CODE 6560-50-P