[Federal Register Volume 78, Number 171 (Wednesday, September 4, 2013)]
[Proposed Rules]
[Pages 54517-54546]
[FR Doc No: 2013-21140]

Vol. 78

Wednesday,

No. 171

September 4, 2013

Part II

Environmental Protection Agency

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40 CFR Part 131

Water Quality Standards Regulatory Clarifications; Proposed Rule

Federal Register / Vol. 78, No. 171 / Wednesday, September 4, 2013 /
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2010-0606; FRL-9839-7]
RIN 2040-AF 16

Water Quality Standards Regulatory Clarifications

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing changes
to the federal water quality standards (WQS) regulation which helps
implement the Clean Water Act. The changes will improve the
regulation's effectiveness in restoring and maintaining the chemical,
physical, and biological integrity of the nation's waters. The EPA is
seeking comments from interested parties on these proposed revisions.
The core of the current regulation has been in place since 1983; since
then, a number of issues have been raised by states, tribes, or
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:
Administrator's determinations that new or revised WQS are necessary,
designated uses, triennial reviews, antidegradation, variances to WQS,
and compliance schedule authorizing provisions.

DATES: Comments must be received on or before December 3, 2013.

ADDRESSES: Submit your comments, identified by Docket identification
(ID) No. EPA-HQ-OW-2010-0606, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Email<EMAIL_ADDRESS>     Mail: Water Docket, Environmental Protection Agency, Mail
Code 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 20460.
Attention: Docket ID No. EPA-HQ-OW-2010-0606.
     Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301
Constitution Ave. NW., Washington, DC 20004, Attention: Docket ID No.
EPA-HQ-OW-2010-0606. Such deliveries are only accepted during the
Docket Center's normal hours of operation. Special arrangements should
be made for deliveries of boxed information by calling<PHONE_NUMBER>.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-
0606. The EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means the EPA will not know
your identity or contact information unless you provide it in the body
of your comment. If you send an email comment directly to the EPA
without going through www.regulations.gov your email address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, the EPA recommends that you include your
name and other contact information in the body of your comment and with
any disc you submit. If the EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, the
EPA may not be able to consider your comment. Electronic files should
avoid the use of special characters, any form of encryption, and be
free of any defects or viruses. For additional information about the
EPA's public docket visit the Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available (e.g., CBI or other information
whose disclosure is restricted by statute). Certain other materials,
such as copyrighted material, will be publicly available only in hard
copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at the
Office of Water Docket Center, EPA/DC, EPA West, Room 3334, 1301
Constitution Ave. NW., Washington, DC. The Public Reading Room is open
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744; the telephone number for the Office of Water Docket Center is
(202) 566-2426.

FOR FURTHER INFORMATION CONTACT: Janita Aguirre, Standards and Health
Protection Division, Office of Science and Technology (4305T),
Environmental Protection Agency, 1200 Pennsylvania Avenue NW.,
Washington, DC 20460; telephone number:<PHONE_NUMBER>; fax number: 202-
566-0409; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: This supplementary information section is
organized as follows:

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for the EPA?
II. Background
    A. What is the statutory and regulatory history of the WQS
regulation and program?
    B. How has the public provided EPA input on the national WQS
Program in the past?
    C. Why is the EPA proposing changes to the federal WQS
regulation?
III. Program Areas for Proposed Regulatory Clarifications
    A. Introduction
    B. Administrator's Determinations That New or Revised WQS Are
Necessary
    C. Designated Uses
    D. Requirements of Triennial Reviews
    E. Antidegradation Implementation
    F. WQS Variances
    G. Provisions Authorizing the Use of Permit-Based Compliance
Schedules
    H. Other Changes
IV. When does this action take effect?
V. Economic Impacts on State and Tribal WQS Programs
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132 (Federalism)
    F. Executive Order 13175
    G. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

A. Does this action apply to me?

    State and tribal governments responsible for administering or
overseeing water quality programs may be directly affected by this
rulemaking, as states and authorized tribes\1\ may

need to consider and implement new provisions, or revise existing
provisions, in their water quality standards (WQS or standards).
Entities such as industrial dischargers or publicly owned treatment
works that discharge pollutants to waters of the United States may be
indirectly affected by this rulemaking because WQS may be used in
determining permit limits under the National Pollutant Discharge
Elimination System (NPDES) or in implementing other Clean Water Act
(CWA or the Act) regulatory programs. Citizens concerned with water
quality and WQS implementation may also be interested in this
rulemaking, although they might not be directly impacted. Categories
and entities that may potentially be affected include the following:
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    \1\ Hereafter referred to as ``states and authorized tribes'' or
``states and tribes.'' ``State'' in the Clean Water Act and this
document refers to a state, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands.

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                                        Examples of potentially affected
               Category                             entities
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States and Tribes....................  States and authorized tribes
                                        (tribes eligible to administer
                                        WQS under the CWA).
Industry.............................  Industries discharging pollutants
                                        to waters of the United States.
Municipalities.......................  Publicly owned treatment works or
                                        other facilities discharging
                                        pollutants to waters of the
                                        United States.
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    This table is not intended to be exhaustive, but rather provides a
guide for entities that may be directly or indirectly affected by this
action. It lists the types of entities of which the EPA is aware could
be potentially affected by this action. Other types of entities not
listed in the table might be affected through implementation of WQS
that are revised as a result of this rule. If you have questions
regarding the applicability of this action to a particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.

B. What should I consider as I prepare my comments for the EPA?

1. Resubmitting Relevant Comments From 2010 Stakeholder and Public
Listening Sessions
    From August through December 2010, the EPA held multiple listening
sessions with stakeholders and the public, as well as consultation
sessions with states, tribes, and representatives of state and local
elected officials, concerning the general directions of this proposed
rule. The EPA considered the views and comments received from these
sessions in developing this proposal. The proposal published today has
evolved substantially from the materials the EPA shared at that time.
If you submitted comments in response to any of those sessions and wish
for these comments to be considered during the public comment period
for this proposed rulemaking, you must resubmit such comments to the
EPA in accordance with the instructions outlined in this document.
2. Submitting Confidential Business Information (CBI)
    Do not submit this information to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disc
that you mail to the EPA, mark the outside of the disc as CBI and then
identify electronically within the disc the specific information that
is claimed as CBI. In addition to one complete version of the comment
that includes information claimed as CBI, a copy of the comment that
does not contain the information claimed as CBI must be submitted for
inclusion in the public docket. Information so marked will not be
disclosed except in accordance with procedures set forth in 40 Code of
Federal Regulations (CFR) part 2.
3. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
     Follow directions. The agency may ask you to respond to
specific questions or organize comments by referencing a CFR part or
section number.
     Submit any and all comments on any portion of the
rulemaking that you wish to be considered.
     Explain why you agree or disagree, suggest alternatives,
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you provide an estimate of potential costs or burdens,
explain how you arrived at your estimate in sufficient detail to allow
for it to be reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period
deadline identified.

II. Background

A. What is the statutory and regulatory history of the WQS regulation
and program?

    The CWA--initially enacted as the Federal Water Pollution Control
Act Amendments of 1972 (Pub. L. 92-500) and subsequent amendments--
establishes the basic structure in place today for regulating pollutant
discharges into the waters of the United States. In the Act, Congress
established the national objective to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's waters,''
and to achieve ``wherever attainable, an interim goal of water quality
which provides for the protection and propagation of fish, shellfish,
and wildlife and for recreation in and on the water'' (sections 101(a)
and 101(a)(2)).
    The CWA establishes the basis for the current WQS regulation and
program. Section 301 of the Act provides that ``the discharge of any
pollutant by any person shall be unlawful'' except in compliance with
specific requirements of Title III and IV of the Act, including
industrial and municipal effluent limitations specified under section
304 and ``any more stringent limitation, including those necessary to
meet WQS, treatment standards or schedule of compliance established
pursuant to any State law or regulation.'' Section 303(c) of the Act
addresses the development of state and authorized tribal WQS and
provides for the following:
    (1) WQS shall consist of designated uses and water quality criteria
based upon such uses;
    (2) States and authorized tribes shall establish WQS considering
the following possible uses for their waters--propagation of fish,
shellfish and wildlife, recreational purposes, public water supply,
agricultural and

industrial water supplies, navigation, and other uses;
    (3) State and tribal standards must protect public health or
welfare, enhance the quality of water, and serve the purposes of the
Act;
    (4) States and tribes must review their standards at least once
every 3 years; and
    (5) The EPA is required to review any new or revised state and
tribal standards, and is also required to promulgate federal standards
where the EPA finds that new or revised state or tribal standards are
not consistent with applicable requirements of the Act or in situations
where the Administrator determines that federal standards are necessary
to meet the requirements of the Act.
    The EPA established the core of the current WQS regulation in a
final rule issued in 1983.\2\ This rule strengthened previous
provisions that had been in place since 1977 and moved them to a new 40
CFR part 131 (54 FR 51400, November 8, 1983). The resulting regulation
describes how the WQS envisioned in the CWA are to be administered. It
clarifies the content of standards and establishes more detailed
provisions for implementing the provisions of the Act. The following
are examples of how the regulation has interpreted and implemented the
CWA provisions regarding standards:
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    \2\ In this preamble, the EPA uses the term ``water quality
standards regulation'' to mean subparts A, B, and C of part 131.
These three subparts, comprising Sec. Sec.  131.1 through 131.22,
contain general provisions, requirements for establishing standards,
and procedures for review and revision of standards, respectively.
Part 131 also includes a subpart D that contains the text of WQS the
EPA has promulgated to replace or augment state and tribal
standards.
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     Establishes procedures to recognize the importance of
designating beneficial uses to achieve the CWA section 101(a)(2)
interim goal with regard to protecting aquatic life and recreational
uses, and to provide states and tribes the option of establishing sub-
categories of uses, such as cold water and warm water aquatic life
designations (Sec.  131.10).
     Provides detail concerning the adoption of numeric water
quality criteria, including authorizing the modification of the EPA's
national recommended criteria to reflect site-specific conditions, the
use of criteria methodologies different from the EPA's recommendations
so long as they are scientifically defensible, and the use of narrative
criteria where numeric criteria cannot be derived or to supplement
numeric criteria (Sec.  131.11).
     Incorporates and clarifies the Act's emphasis on the
importance of preserving existing uses and identifying and preserving
high quality and outstanding resource waters through longstanding
antidegradation provisions. These provisions are designed to protect
existing uses and the level of water quality necessary to support these
uses; to protect high quality waters and provide a transparent analytic
process for states and tribes to determine whether limited degradation
of such waters is appropriate and necessary (Sec.  131.12).
    In support of the 1983 regulation, the EPA has issued a number of
guidance documents, such as the ``Water Quality Standards Handbook''
(WQS Handbook),\3\ that have provided guidance on the interpretation
and implementation of the WQS regulation, and on scientific and
technical analyses that are used in making decisions that would impact
WQS. The EPA also developed the ``Technical Support Document for Water
Quality-Based Toxics Control'' \4\ (TSD) that provided additional
guidance for implementing state and tribal WQS.
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    \3\ First edition, December 1983; second edition, EPA 823-B-94-
005a, August 1994.
    \4\ First edition, EPA 440/4-85-032, September 1985; revised
edition, EPA 505/2-90-001, March 1991.
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    The part 131 regulation has been modified twice since 1983. First,
in 1991 the EPA added Sec. Sec.  131.7 and 131.8 regarding tribes,
pursuant to section 518 of the CWA (56 FR 64893, December 12, 1991).
Section 518, which was enacted in 1987, included provisions extending
the ability to participate in the WQS program to Indian tribes. Second,
in 2000 the EPA promulgated Sec.  131.21(c), commonly known as the
``Alaska Rule,'' to clarify that new and revised standards adopted by
states and tribes and submitted to the EPA after May 30, 2000 become
applicable standards for CWA purposes only when approved by the EPA (65
FR 24641, April 27, 2000).

B. How has the public provided EPA input on the national WQS Program in
the past?

    The EPA received comments, data, and information from over 6,000
commenters in developing ``Final Water Quality Guidance for the Great
Lakes System'' in 1995 (60 FR 15366, March 23, 1995). The final
Guidance represented more than six years of intensive, cooperative
efforts that included participation by the eight Great Lakes states,
the EPA, and other Federal agencies in open dialogue with citizens,
local governments, municipalities, academia, the environmental
community, and industries located in the Great Lakes ecosystem. This
process entailed a thorough review and analysis of the federal water
quality program and opportunities for greater clarity, focus, and
improved implementation. The final Guidance is codified in 40 CFR part
132 and helps establish consistent, enforceable, and long-term
protections from all types of pollutants, with short-term emphasis on
the types of bio-accumulative contaminants that accumulate in the food
web and pose a threat to the Great Lakes System. While not all
provisions of the Final Guidance may be necessary or appropriate for
the national Water Quality Standards Program, the EPA considered the
input received from the public through the development of the Final
Guidance during the preparation of this proposed rule.
    In 1998, the EPA issued an Advance Notice of Proposed Rulemaking
(ANPRM) to discuss and invite comment on over 130 aspects of the
federal WQS regulation and program, with a goal of identifying specific
changes that might strengthen water quality protection and restoration,
facilitate watershed management initiatives, and incorporate evolving
water quality criteria and assessment science into state and tribal WQS
programs. (63 FR 36742, July 7, 1998). In response, the EPA received
over 3,200 specific written comments from over 150 comment letters. The
EPA also held three public meetings during the 180-day comment period
where additional comments were received and discussed.
    Although the EPA chose not to move forward with a rulemaking after
the ANRPM, as a result of the input received, the EPA identified a
number of high priority issue areas for which the Agency has developed
guidance, provided technical assistance and continued further
discussion and dialogue to assure more effective program
implementation. For example, many ANPRM commenters expressed the need
for additional assistance on establishing designated uses of water
bodies and the process to follow when making designated uses more or
less protective. In order to receive input from a broad set of
stakeholders on these topics, the EPA held a follow-up national
symposium on designated uses on June 3-4, 2002 in Washington, DC.
Approximately 200 interested citizens, government officials, and
regulated parties attended this open meeting, which included
presentations from a variety of stakeholders and an expert panel
representing different

viewpoints.\5\ In addition, the EPA held four co-regulator workshops
between February 2005 and April 2006 with state, interstate, and tribal
partners, and gathered further input and feedback on the establishment,
adjustment, and implementation of designated uses.\6\
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    \5\ Proceedings from the national symposium on designated uses
can be found at http://water.epa.gov/scitech/swguidance/standards/uses/symposium_index.cfm.
    \6\ A summary of the co-regulator workshops and a link to the
use attainability analysis (UAA) case studies can be found at http://water.epa.gov/scitech/swguidance/standards/uses/uaa/info.cfm.
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C. Why is the EPA proposing changes to the Federal WQS regulation?

    The core requirements of the current WQS regulation have been in
place for over 30 years. These requirements have provided a strong
foundation for water quality-based controls, including water quality
assessments, impaired waters lists, and total maximum daily loads
(TMDLs) under CWA section 303(d), as well as for water quality-based
effluent limits (WQBELs) in NPDES discharge permits under CWA section
402. As with the development and operation of any program, however, a
number of policy and technical issues have recurred over the past 30
years in individual standards reviews, stakeholder comments, and
litigation that the EPA believes would be addressed and resolved more
efficiently by clarifying, updating and revising the federal WQS
regulation to assure greater public transparency, better stakeholder
information, and more effective implementation.
    From 2008 through 2010, the EPA held ongoing discussions with state
and tribal partners and other stakeholders. These discussions addressed
a wide-range of issues, from which a subset has been identified as
significant areas of continuing concern. In 2010, the EPA held
listening sessions with the public, states and tribes to obtain
feedback on this subset of issues. The agenda, background material,
list of participants and the public transcripts may be viewed at http://water.epa.gov/lawsregs/lawsguidance/wqs_listening.cfm#records.
Section III of the EPA's proposal describes the key areas the EPA has
chosen to address based on input received and the EPA's proposed
regulatory approaches. The EPA believes that states, tribes, other
stakeholders, and the public will benefit from clarification in these
key areas to better understand and make proper use of available CWA
tools and flexibilities, while maintaining open and transparent public
participation. Clear regulatory requirements and improved
implementation will provide a more transparent and well-defined pathway
for restoring and maintaining the biological, chemical, and physical
integrity of the nation's waters. The changes the EPA is proposing
today add or modify specific regulatory provisions to address key areas
described below.

III. Program Areas for Proposed Regulatory Clarifications

A. Introduction

    As discussed in section II.C, the EPA has had ongoing dialogue with
states, tribes and stakeholders on key issues that are central to
assuring effective implementation of the WQS program. As part of this
process, the Agency has considered several fundamental questions in
evaluating opportunities to improve implementation of the WQS program
including which recurring implementation issues would benefit most from
a regulatory clarification or update, whether there are emerging issues
that could be more effectively addressed through regulatory revisions,
whether the regulation continues to have the appropriate balance of
consistency and flexibility for states and tribes, and whether the
resulting program effectively facilitates public participation in
standards decisions.
    As a result of this evaluation and consideration of continuing
input from states, tribes and stakeholders, the EPA is proposing
changes to key program areas of its WQS regulation at 40 CFR part 131
that the Agency believes will result in improved regulatory clarity and
more effective program implementation, and lead to environmental
improvements in water quality. This proposed rulemaking requests
comment on regulatory revisions in the following six key issue areas:
(1) Administrator's determination that new or revised WQS are
necessary, (2) designated uses, (3) triennial reviews, (4)
antidegradation, (5) WQS variances, and (6) compliance schedule
authorizing provisions.

B. Administrator's Determinations That New or Revised WQS Are Necessary

1. The EPA Proposal
    The EPA is proposing to amend paragraph (b) of Sec.  131.22 to add
a requirement that an Administrator's determination must be signed by
the Administrator or his or her duly authorized delegate, and must
include a statement that the document is a determination for purposes
of section 303(c)(4)(B) of the Act.
2. Background and Rationale for Revision
    Section 303(c)(4)(B) of the CWA provides the EPA Administrator with
authority to determine that a new or revised WQS is necessary to meet
the CWA requirements, typically in those situations where a state or
tribe fails or is unable to act in a manner consistent with the CWA.
Such a determination is made at the Administrator's discretion, after
evaluating all relevant factors. An Administrator's determination
triggers the requirement for the EPA to promptly prepare and publish
proposed regulations setting forth a revised or new WQS for the waters
of the United States involved, and for the EPA to promulgate such WQS
unless the state or tribe adopts and the EPA approves such WQS before
the EPA promulgation.
    The EPA is concerned that the process whereby the Administrator
determines that new or revised standards are necessary is not always
clearly understood or interpreted by the public and stakeholders. In
some instances, this lack of understanding has led to a mistaken
conclusion that the EPA has made a CWA 303(c)(4)(B) determination when,
in fact, the EPA did not make nor intend to make a determination. For
example, Agency memoranda or documents articulating areas where states'
WQS may need improvements have sometimes been construed or alleged by
stakeholders to be official Administrator determinations that obligate
the EPA to propose and promulgate federal WQS for such states. In order
to ensure effective implementation of the national WQS program, to
provide direct, clear, and transparent feedback on state and tribal
actions, and to maintain an open and constructive dialogue with states,
tribes and stakeholders on important water quality issues, it is
essential that the EPA have the ability to provide feedback, and states
and tribes have the opportunity to consider and evaluate the Agency's
views, without fear of litigation triggering a duty on the part of the
EPA to propose and promulgate WQS before either a state, tribe or the
Agency believes such a course is appropriate or necessary.
    The EPA believes that this revision would establish a more
transparent process for the Administrator to announce any determination
made under section 303(c)(4)(B) of the Act. Such a revision will allow
the EPA to effectively provide direct and specific written
recommendations to states and tribes on areas where WQS improvements
should be considered,

without the possibility that such recommendations will be construed as
a determination that obligates the EPA to propose and promulgate new or
revised standards.
    The public's ability under Section 553(e) of the Administrative
Procedure Act (5 U.S.C. 553(e)) to petition the EPA to issue, amend, or
repeal a rule, would not be affected by this proposed revision.
    The EPA invites comments on the proposed amendment to paragraph (b)
of Sec.  131.22. The EPA also invites comment on any other options it
should consider or on the interpretations expressed in this section.

C. Designated Uses

1. The EPA Proposal
    First, the EPA is proposing to amend paragraph (g) at Sec.  131.10
to provide that where a state or tribe adopts new or revised water
quality standards based on a use attainability analysis (UAA), it must
adopt the highest attainable use (HAU). States and tribes must also
adopt criteria, as specified in Sec.  131.11(a), to protect that use.
The EPA is also proposing to add a definition of HAU at Sec.  131.3(m).
Specifically, the EPA is proposing to define HAU as ``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).''
    Second, the EPA is making appropriate edits to Sec.  131.10(g) to
be clear that the factors listed in Sec.  131.10(g) must be used when a
UAA is required by Sec.  131.10(j), and is restructuring Sec.
131.10(k) to clearly articulate when a UAA is not required.
2. Background
    Designated uses communicate a state's or tribe's environmental
management objectives for its waters and drive on-the-ground water
quality decision-making and improvements. To establish appropriate WQS,
states and tribes define the water quality goals of a water body first
by designating the use(s) and second by setting criteria that protect
those uses. WQS are the foundation for other CWA requirements
applicable to a water body, such as WQBELs for point source
dischargers, as well as assessment of waters and establishment of TMDLs
for waters not meeting applicable WQS. Designated uses play such an
important role in the effective implementation of the CWA. The EPA
believes it is essential to provide clear and concise regulatory
requirements for states and tribes to follow (1) when adopting a use
specified in section 101(a)(2) or sub-categories of such uses for a
water body for the first time, or (2) when removing or revising a
currently adopted use specified in section 101(a)(2) of the Act, or a
sub-category of such a use. This is particularly important in light of
recurring input and questions on this issue and the potential for
conflicting interpretations and inconsistent case-by-case WQS program
implementation.
    Under section 303 (33 U.S.C. 1313) of the CWA, states and
authorized tribes are required to develop WQS for waters of the United
States within their state. WQS shall include designated use or uses to
be made of the water and criteria to protect those uses. Such standards
shall be established taking into consideration the use and value of
waters for public water supplies, propagation of fish and wildlife,
recreation, agricultural uses, industrial uses, navigation and other
purposes (CWA 303(c)(2)(A)). Designated uses are defined at 40 CFR
131.3(f) as the ``uses specified in water quality standards for each
water body or segment whether or not they are being attained.'' A
``use'' is a particular function of, or activity in, a particular water
body that requires a specific level of water quality.
    Section 101(a)(2) of the CWA establishes the national goal that
``wherever attainable, an interim goal of water quality which provides
for the protection and propagation of fish, shellfish, and wildlife and
provides for recreation in and on the water'' be achieved by July 1,
1983. CWA section 303(c)(2)(A) requires state and tribal WQS to
``protect the public health or welfare, enhance the quality of the
water and serve the purposes of this [Act].'' The WQS regulation at 40
CFR part 131 interprets and implements these provisions through
requirements that WQS protect the uses specified in section 101(a)(2)
of the Act unless those uses are shown to be unattainable, effectively
creating a rebuttable presumption of attainability.\7\ Thus, it has
been the EPA's interpretation that the uses specified in section
101(a)(2) of the Act are presumed attainable unless a state or tribe
affirmatively demonstrates through a UAA\8\ that 101(a)(2) uses are not
attainable as provided by one of six regulatory factors at Sec.
131.10(g).\9\
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    \7\ See 40 CFR 131.2; 131.5(a)(4); 131.6(a),(f); 131.10(g), (j),
(k).
    \8\ See 40 CFR 131.3(g). A UAA is a structured scientific
assessment of the factors affecting the attainment of the use that
may include physical, chemical, biological, and economic factors as
described in Sec.  131.10(g).
    \9\ EPA's ``rebuttable presumption'' that the uses specified in
CWA section 101(a)(2) are presumed attainable, unless demonstrated
to be unattainable through a UAA, has been upheld in Idaho Mining
Association v. Browner, 90 F. Supp. 2d 1078 (D. Idaho 2000).
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    The current WQS regulation at 40 CFR 131.10 requires states and
tribes to specify appropriate uses to be achieved and protected;
requires that WQS ensure attainment and maintenance of WQS of
downstream waters; allows for sub-categories of uses (e.g., to
differentiate between cold water and warm water fisheries) and seasonal
uses; describes when uses are attainable; lists six factors of which at
least one must be satisfied to justify removal of uses specified in
Section 101(a)(2) that are not existing uses; prohibits removal of
existing uses; requires states and authorized tribes to revise WQS to
reflect uses that are presently being attained but not designated; and
establishes when a state or tribe is or is not required to conduct a
UAA. States and tribes have flexibility when managing their designated
uses consistent with the CWA and implementing regulation.
    More specifically, the current WQS regulation requires a UAA when
designating uses that do not include the uses specified in section
101(a)(2) of the CWA, when removing a designated use specified in
section 101(a)(2) of the Act, or when adopting sub-categories of such
uses that require less stringent criteria. The phrase ``uses specified
in section 101(a)(2) of the Act'' refers to uses that provide for the
protection and propagation of fish (including aquatic invertebrates),
shellfish, and wildlife, and recreation in and on the water, as well as
for the protection of human health when consuming fish, shellfish, and
other aquatic life.\10\ ``Sub-category of a use specified in section
101(a)(2) of the Act'' refers to any use that reflects the subdivision
of uses specified in section 101(a)(2) of the Act into smaller, more
homogenous groups of waters with the intent of reducing variability
within the group. 40 CFR 131.10(c) provides that states and authorized
tribes may adopt sub-categories of a use and set the appropriate
criteria to reflect varying needs of such sub-categories of uses.
States and tribes have broad discretion to determine the appropriate
level of specificity to use in identifying and defining designated
uses, and nothing in this proposal is intended to narrow that
discretion. However, the EPA has found that the clearer, more accurate,
and

refined the designated uses are in describing the state's or tribe's
objective for a water body, the more effective those use designations
can be in driving the management actions necessary to restore and
protect water quality.\11\
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    \10\ http://water.epa.gov/scitech/swguidance/standards/upload/2000_10_31_standards_shellfish.pdf.
    \11\ EPA notes that a use may meet the description of a ``sub-
category of a use specified in section 101(a)(2) of the Act,'' but
not provide an equal level of protection as a use specified in
section 101(a)(2) of the Act. If a state wishes to designate such a
sub-category, a UAA would be required, consistent with Sec.
131.10(j).
---------------------------------------------------------------------------

    The current regulation at Sec.  131.10(g) and (h)(1) provides that
states and tribes may not remove a designated use if it would also
remove an existing use unless a use requiring more stringent criteria
is added. Existing uses are ``those uses actually attained in the water
body on or after November 28, 1975, whether or not they are included in
the water quality standards.'' Existing uses are known to be
``attained'' when both the use and the water quality necessary to
support the use has been achieved.\12\ The EPA recognizes, however,
that all the necessary data may not be available. Where data may be
limited, inconclusive, or not available, states and tribes have
discretion to determine whether an existing use has been attained,
based on either the use or the water quality. It is important to note
that the prohibition on removing an existing use is not intended to
apply to a situation where the state or tribe wishes to remove a use
where removal would result in improving the condition of a water body.
The intent of the regulation is to further the objective in CWA section
101(a) to ``restore and maintain the chemical, physical, and biological
integrity'' of the nation's waters, not to prevent actions that make
the water body more like its minimally impacted condition. For example,
if a warm water fishery exists behind a dam, the existing use provision
would not prevent the state from removing that dam because doing so
would likely restore the natural cold water aquatic ecosystem.
---------------------------------------------------------------------------

    \12\ See http://water.epa.gov/scitech/swguidance/standards/upload/Smithee-existing-uses-2008-09-23.pdf.
---------------------------------------------------------------------------

3. Rationale for Revision
Adoption of Highest Attainable Use
    As discussed above, states and tribes have flexibility to designate
and revise uses in accordance with the provisions of Sec.  131.10 which
implements the requirement in 303(c)(2)(A) that standards shall be set
to serve the purposes of the Act as set forth in Section) 101(a)(2) and
303(c)(2)(A). However, the EPA believes that it may be appropriate to
provide greater clarity in the regulations implementing this
requirement. For example, as part of the UAA process, a state or tribe
may be able to demonstrate that a use supporting a particular class of
aquatic life is not attainable. However, if some less sensitive aquatic
organisms are able to survive at the site under current or attainable
future conditions, the goals of the CWA are not served by simply
removing the aquatic life use designation and applicable criteria
without determining whether there is some alternate 101(a)(2) use or
subcategory of such a use that is feasible to attain. The UAA process
can be used to identify the highest aquatic life use that is attainable
(i.e., highest attainable use). Under this proposal, the state or tribe
would be required to designate that highest attainable use. However, as
noted above, states and tribes have broad discretion to determine the
appropriate level of specificity to use in identifying and defining
designated uses, and nothing in this proposal is intended to narrow
that discretion. To further clarify this in rule text, the proposal
would add the following language to 131.10(g): ``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.'' Thus, while a state or tribe may wish to establish a
new or revised use category or subcategory to meet the proposed HAU
requirement, the state or tribe could also comply with this requirement
by adopting the highest attainable use from its currently established
use categories or subcategories or by adopting a location-specific use,
or another defensible approach.
    The EPA's current regulation at 40 CFR 131.6(a) requires that each
state's or tribe's water quality standards submitted to the EPA for
review must include ``use designations consistent with the provisions
of sections 101(a)(2) and 303(c)(2) of the Act.'' Sections 131.10(g)
and 131.10(j) implement the CWA by authorizing a state or tribe to
designate uses that do not include the uses specified in section
101(a)(2) or to remove protection for a use specified in section
101(a)(2) (or subcategory of such a use) only through a UAA. If the
state or tribe demonstrates through a UAA that a 101(a)(2) use, or a
subcategory of such a use, is not attainable, then in order to comply
with this regulatory requirement, the state or tribe will need to adopt
use designations that continue to serve the 101(a)(2) goal by
protecting the highest attainable use unless the state or tribe has
shown that no use specified in section 101(a)(2) is attainable.
    This proposal is intended to clearly articulate a requirement to
adopt the HAU in the EPA's regulation. HAU is defined in this proposal
as ``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).'' With
this definition, the EPA recognizes and affirms the primary role
accorded to states and tribes under the CWA in establishing categories
of designated uses and assigning those uses to specific water bodies
within their jurisdiction. The EPA intends for states and tribes to use
their existing use classification scheme to meet the HAU requirement
whenever the state or tribe determines that it is appropriate to do so.
The EPA is not requiring states and tribes to revise their use
categorization scheme by developing new use categories or
subcategories, although states and tribes are encouraged to develop
them if they find it practical and appropriate to do so. While the EPA
believes that there is often value in specifying more narrowly targeted
aquatic life uses (e.g., warm water or cold water fishery), the EPA
also recognizes that it may not be practical for states or tribes to
adopt fine gradations of aquatic life uses in many cases. The proposed
rule would thus not affect a state or tribe's discretion to determine
the appropriate level of specificity in establishing designated uses.
    When adopting the HAU, states and tribes must also adopt criteria
to protect that use, as specified in Sec.  131.11(a). Requiring the HAU
to be adopted as an essential part of the UAA process is important to
adequately implement both CWA sections 101(a)(2) and 303(c)(2)(A).
Where uses specified in section 101(a)(2) are unattainable, it is
important that states and tribes still strive to attain uses that
continue to serve the purposes of the Act and also enhance the quality
of the water.
    In determining the HAU to adopt in place of an unattainable aquatic
life, wildlife, and/or recreation use, states and tribes should use the
same regulatory factors (at 40 CFR 131.10(g)) and data analysis that
were used to evaluate attainability. When conducting this review and
soliciting input from the public, states and tribes should consider not
only what is currently attained, but also what is attainable in the
future after achievable gains in water quality are

realized. Such a prospective analysis may involve the following:
     Identifying the current and expected condition for a water
body;
     Evaluating the effectiveness of best management practices
(BMPs) and associated water quality improvements;
     Examining the efficacy of treatment technology from
engineering studies; and
     Using water quality models, loading calculations, and
other predictive tools.
    Once a state or tribe has determined the HAU, there are several
different approaches it may wish to consider for articulating the
designated use in the relevant water quality standards regulations. The
EPA's intent is for a state or tribe to have the flexibility to choose
its preferred approach for articulating the HAU in regulation. The EPA
provides the following example approaches, but does not intend states
and tribes to be limited to only these approaches. The EPA invites
comments on other approaches or examples that states and tribes could
use when articulating the HAU, or examples of scenarios where the
following approaches may not be appropriate. The EPA emphasizes that
states and tribes are not required to develop new use categories or
subcategories to meet the HAU requirement.
    1. Use a refined designated use structure that is already adopted
into state or tribal regulation: Where a state or tribe already has a
refined designated use structure adopted into state regulations, they
could consider adopting the ``next best'' attainable use that already
exists in the use structure as the HAU. For example, consider a state
with the following four aquatic life uses: exceptional, high, modified,
and limited aquatic life use--each with associated dissolved oxygen
criteria that protect the use. The state determines through a UAA
(based on a factor at Sec.  131.10(g)) that a particular stream cannot
attain the designated ``high aquatic life use'' and associated
dissolved oxygen criterion due to a low head dam and resulting
impoundment. Because the dam cannot be removed or operated in such a
way as to attain the dissolved oxygen criteria needed to protect the
expected biological community at the site, the state adopts the
``modified aquatic life use'' and dissolved oxygen criterion to protect
the revised use. The UAA documents that the ``modified aquatic life
use'' reflects the HAU despite the disturbed condition of the water
body.
    2. Revise the current designated use structure to include more
refined uses and/or sub-categories of uses: Some states or authorized
tribes may not have a refined designated use structure adopted into
their state or tribal regulations, but rather have a general use
category expressed as a ``general aquatic life use,'' ``fish and
wildlife use,'' ``recreation use,'' and so on. If a state or tribe
finds that its only option upon determining that such a general use
category is not attainable is to remove it altogether, a state or tribe
may wish to consider revising its current designated use framework to
include more refined uses and/or sub-categories, and adopt criteria to
protect those uses.
    For example, a state or tribe may be able to adequately demonstrate
(consistent with 40 CFR 131.10(g)(2)) that natural conditions or water
levels preclude the attainment of a use and associated water quality
criteria. The state or tribe may document that it is infeasible to
attain an aquatic life use associated with fish because the water is
naturally intermittent. However, intermittent streams provide essential
habitat for different types of aquatic life (e.g., aquatic
invertebrates). Such an aquatic life use is likely attainable if not
already attained. Therefore, in this scenario the state or tribe may
wish to adopt a refined ``intermittent aquatic life use'' and criteria
to protect that use in its statewide designated use framework because
such a use category reflects the naturally expected aquatic life use
for intermittent streams that could be applied to multiple streams in
the state.
    As another example, some states have chosen to refine their use
categories to reflect the various biological communities that might be
expected in a water body. If a state is interested in revising its
current designated use structure, it may wish to define its uses based
on the composition and structure of the aquatic life expected for each
use with associated biological and dissolved oxygen criteria adopted
into regulation. Incorporating such refinements into designated uses
allows the state to tailor its use designations to reflect the actual
biological community expected.
    3. Designate a location-specific use and adopt criteria to protect
that use: A state or tribe may determine that a use is unattainable for
one particular parameter (e.g., altered pH due to highly mineralized
geology, or a combined sewer overflow (CSO)-impacted use) or suite of
parameters in a specific location. In such situations, the state or
tribe may choose to adopt a use that more accurately reflects the
location-specific expectations, such as a ``pH limited aquatic life
use,'' a ``habitat limited aquatic life use,'' or a ``minerals limited
aquatic life use.'' The state or tribe would then adopt a new set of
criteria to protect that use, but could adopt all the same criteria
levels as were protective of the original use, except for the parameter
or parameters limiting the location-specific use. Such an approach
would not require a state or tribe to add the location-specific use in
its framework, but it could do so if later if it finds that other
waters will fall into the same category.
    The concept of HAU should not to be confused with ``site-specific
criteria.'' A site-specific criterion is designed to protect the
current unchanged designated use, but the criterion value may be
different from the statewide or otherwise applicable criterion because
it is tailored to account for site-specific conditions that may cause a
given chemical concentration to have a different effect on one site
than on another. By contrast, the criterion supporting a newly
established highest attainable use is designed to protect the revised
use associated with a different aquatic community expected in the water
body.
    In addition to this proposal requiring states and tribes to adopt
the HAU, the EPA recommends that states and tribes consider the HAU
during a triennial review. If new information becomes available during
a triennial review to indicate that a use higher than what is currently
designated is attainable, states and tribes should revise their WQS to
reflect the HAU. As with the HAU requirement, states and tribes are not
required to revise their currently established use categories during
triennial review to allow for more refined designation of higher uses,
though they may wish to consider doing so.
Revisions To Clarify When a UAA Is and Is Not Required
    The EPA's proposal also revises Sec.  131.10(g) to clarify that the
factors at Sec.  131.10(g) are only required to be considered when
Sec.  131.10(j) requires a UAA. The current language in Sec.  131.10(g)
is ambiguous on this point and thus has led to confusion as to whether
Sec.  131.10(g) applies to all use revisions or only those actions
addressed in Sec.  131.10(j). The EPA's 1998 ANPRM stated that the
EPA's position, at the time, was that a UAA is not limited to actions
addressed in Sec.  131.10(j). However, the EPA has implemented the CWA
to focus on uses specified in Sec.  101(a)(2) and now believes that the
better interpretation of its regulations is that the factors in
131.10(g) are only required to be considered when a state or tribe is
demonstrating that a use specified in Sec.  101(a)(2) or a subcategory
of such a use is not attainable through a UAA.

The EPA's interpretation is supported by Sec.  131.10(j), that explains
when a UAA is required, and Sec.  131.3(g) that defines a UAA as ``a
structured scientific assessment of the factors affecting the
attainment of the use which may include physical, chemical, biological,
and economic factors as described in Sec.  131.10(g).'' When Sec. Sec.
131.3(g), 131.10(g) and (j) are read together, it is clear that the
factors at Sec.  131.10(g) are only required to be considered when the
state or tribe must do a UAA under Sec.  131.10(j). This proposal adds
language to Sec. Sec.  131.10(g) and 131.10(j) to clarify the
relationship between these two provisions and the intent of these
provisions to implement CWA sections 101(a)(2) and 303(c)(2)(A). For
all other designated uses, this proposal uses the term ``uses not
specified in section 101(a)(2)'' to refer to uses discussed in section
303(c)(2)(A) but not included in section 101(a)(2). Section
303(c)(2)(A) and the EPA's regulation at Sec.  131.10(a) requires the
state or authorized tribe to take into consideration the ``use and
value'' of water for public water supplies, propagation of fish and
wildlife, recreational purposes, agricultural, industrial and other
purposes, and also taking into consideration their use and value for
navigation. The UAA demonstration satisfies this requirement for uses
specified in 101(a)(2). And while states and authorized tribes are not
required by regulation to conduct a UAA using factors at Sec.
131.10(g) when designating and removing a use not specified in
101(a)(2), the EPA recognizes that UAAs may provide valuable
information to a state or authorized tribe when deciding how to manage
their waters and demonstrate consideration of a water's ``use and
value.''
    Finally, the EPA is proposing to clarify Sec.  131.10(k) to state
when a UAA is not required. Specifically, Sec.  131.10(k) is revised to
articulate that a UAA is not required when a state or authorized tribe
designates or has designated uses specified in section 101(a)(2) of the
Act for a water body for the first time, removes a designated use that
is not specified in section 101(a)(2) of the Act, or adopts a
subcategory that requires criteria as stringent as the previously
applicable criteria. The current structure of 131.10(j)(2) and
131.10(k) could result in situations where a UAA is not required by
131.10(k) but is required by 131.10(j)(2) thus leading to confusion.
The EPA intends to eliminate this confusion by restructuring 131.10(k)
as proposed.
    The EPA invites comments on the proposed addition of 40 CFR
131.3(m), and the proposed amendments to Sec.  131.10(g), Sec.
131.10(j) and Sec.  131.10(k). The EPA also invites comment on any
other options it should consider or on the interpretations expressed in
this section.

D. Requirements of Triennial Reviews

1. The EPA Proposal
    The EPA is proposing to amend the triennial review requirements of
paragraph (a) of Sec.  131.20 to clarify that a state or tribe shall
re-examine its water quality criteria during its triennial review 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.
2. Rationale for Revision
    Sections 303(a) through (c) of the CWA require that states and
tribes adopt WQS applicable to their interstate and intrastate waters
and that the EPA review and approve or disapprove these standards based
on whether they are consistent with the Act. Section 303(c)(1) further
requires states and tribes to hold public hearings at least once every
3 years for the purpose of reviewing applicable WQS and, as
appropriate, modifying and adopting standards. The state or tribe
decides whether and how to modify or adopt its WQS; however, any new or
revised standards shall be submitted to the EPA for review and approval
or disapproval.
    The EPA adopted regulations in 1983 implementing these provisions
at 40 CFR 131.20. This regulation requires that states and tribes hold
a public hearing to review applicable WQS at least once every 3 years
(i.e., a ``triennial review'') and, as appropriate, modify and adopt
standards. Public hearings on WQS provide an essential opportunity for
stakeholders and the general public to participate in the WQS-setting
process to provide input and raise issues to appropriate officials. In
addition, the regulation requires states and tribes to consider whether
any new information has become available that indicates if uses
specified in CWA section 101(a)(2) that were previously unattainable
are now attainable. 40 CFR 131.20(c) provides that the results of these
reviews be submitted to the EPA (see also Sec.  131.6(f)).
    Stakeholders have expressed concern that states and tribes may
retain criteria in their WQS that are no longer protective of
designated uses for multiple triennial review cycles, despite the
availability of new or updated EPA CWA section 304(a) criteria
recommendations. While states and tribes are not required to use EPA's
304(a) criteria recommendations, the EPA agrees that it is important
for states and tribes to consider any new or updated 304(a) criteria as
part of their triennial review, in order to ensure that state or tribal
water quality criteria reflect current science and protect applicable
designated uses. In this regard, 40 CFR 131.20(a) requires that any
waterbody segment with WQS that does not include the uses specified in
CWA section 101(a)(2) be re-examined and updated if new information
becomes available to indicate that previously unattainable CWA section
101(a)(2) uses are now attainable. However, because 40 CFR 131.20(a)
does not include a parallel statement regarding criteria that support
these uses, states and tribes may not re-evaluate their existing
criteria to ensure that the criteria continue to be protective of the
designated uses when new or updated 304(a) criteria recommendations
become available. As a result, the EPA is proposing to include an
explicit reference to 304(a) recommended criteria at 131.20(a), to
ensure that new or updated 304(a) criteria are considered during
triennial review.
    The EPA invites comments on the proposed amendments to paragraph
(a) of Sec.  131.20. The EPA also invites comment on any other options
it should consider or on the interpretations expressed in this section.

E. Antidegradation Implementation

    The EPA is proposing to amend several provisions of Sec.  131.12
related to implementing the antidegradation requirements. These include
(1) clarifying the options available to states and tribes when
identifying Tier 2 high quality waters, (2) clarifying that states and
tribes must conduct an alternatives analysis in order to support state
and tribal decision-making on whether to authorize limited degradation
of high quality water, and (3) specifying that states and tribes must
develop and make available to the public implementation methods for
their antidegradation policies. The EPA is also proposing to add
language to Sec.  131.5(a) describing the EPA's authority to review and
approve or disapprove state-adopted or tribal-adopted antidegradation
policies. The language at Sec.  131.5(a) will further specify that if a
state or tribe has chosen to formally adopt implementation methods as
water quality standards, the EPA would review whether those
implementation methods are consistent with 131.12.

Background
    Section 101(a) of the CWA emphasizes the prevention of water
pollution and expressly includes the objective ``to restore and
maintain the chemical, physical and biological integrity of the
Nation's waters (33 U.S.C. 1251) (emphasis added). The antidegradation
requirements that the EPA incorporated by regulation in 1983 into 40
CFR 131.12 implement the maintenance aspect of CWA section 101(a) and
are an essential component of the overall WQS program. Although
designated uses and criteria are the primary tools states and tribes
use to achieve the CWA 101(a) goals, antidegradation complements these
by providing a framework for maintaining existing uses, for protecting
waters that are either attaining or are of a higher quality than
necessary to support the CWA 101(a)(2) goals, and for protecting state/
tribal identified Outstanding National Resource Waters (ONRWs).
Antidegradation plays a critical role in allowing states and tribes to
maintain and protect the valuable resource of high quality water by
ensuring that decisions to allow a lowering of high quality water are
made in a transparent public manner and are based on a sound technical
record.
    In the Water Quality Act of 1987, Congress expressly affirmed the
principle of antidegradation that is reflected in section 101 of the
Act. In those amendments to the CWA, Congress incorporated a reference
to antidegradation policies in section 303(d)(4)(B) of the Act (33
U.S.C. 1313(d)(4)(B)): ``Standard Attained--For waters identified under
paragraph (1)(A) where the quality of such waters equals or exceeds
levels necessary to protect the designated use for such waters or
otherwise required by applicable WQS, any effluent limitation based on
a total maximum daily load or other waste load allocation established
under this section, or any WQS established under this section, or any
permitting standard may be revised only if such revision is subject to
and consistent with the antidegradation policy established under this
section'' (emphasis added). This provision not only confirms that an
antidegradation policy is an integral part of the CWA, but also
explains the relationship of the antidegradation policy to other CWA
regulatory programs.\13\ Antidegradation reviews are applicable to
revisions to effluent limitations based on a TMDL, wasteload
allocation, or water quality standard, but they are not required for
revisions to a TMDL, wasteload allocation, or water quality
standard.\14\
---------------------------------------------------------------------------

    \13\ PUD No. 1 of Jefferson County v. Washington Department of
Ecology, 511 U.S. 700, 705 (1994) (``A 1987 amendment to the Clean
Water Act makes clear that section 303 also contains an
`antidegradation policy . . .' '').
    \14\ Native Village of Point Hope v. U.S. Envtl. Prot. Agency,
No. 3:11-cv-00200-TMB, slip op. at 24-25 (D. Alaska Sept. 14, 2012).
---------------------------------------------------------------------------

    High quality waters provide support for aquatic life and recreation
and support unique and significant ecologies and species habitat. These
attributes confer a special degree of resiliency and resistance to
adverse effects, particularly as the nation's waters face an increasing
degree of stress from anthropogenic influences. Therefore, maintenance
and protection of high quality waters has never been more important.
    Protection of waters that meet or exceed levels necessary to
support the CWA uses is central to supporting both economic and
community growth and sustainability. Such waters contribute to our
public health, aquatic ecosystems, drinking water supplies, and to the
welfare of families and communities. The health and growth of tourism,
recreation, fishing, and businesses and the jobs they create rely on a
sustainable source of clean water. Degradation of water quality may
result in increasing public health risks, declining aquatic communities
and ecological diversity, and increasing treatment costs that must be
borne by ratepayers and local governments. Maintenance of waters that
exceed levels necessary to support the CWA uses can sometimes save time
and economic resources for a community in the long-term. Using an
antidegradation program to prevent the degradation of a water body may
be more cost-effective and efficient than long-term restoration
efforts. In addition, maintaining a water body in its initial high
quality condition helps ensure the preservation of unique attributes
that may ultimately be impossible to fully restore in a number of
situations.
    Currently, 40 CFR 131.12 requires states and tribes to adopt an
antidegradation policy and identify implementation methods for that
policy. The state's or tribe's policy must provide protection for all
existing uses, hereafter referred to as ``Tier 1'' protection (40 CFR
131.12(a)(1)). The policy must also require the maintenance and
protection of high quality (``Tier 2'') waters unless the state or
authorized tribe finds that ``allowing lower water quality is
necessary'' to accommodate ``important economic or social development
in the area in which the waters are located,'' a process hereby
referred to as ``Tier 2 review'' (40 CFR 131.12(a)(2)). Additionally,
the policy must provide for the maintenance and protection of water
quality in ONRWs, identified by the state or tribe, hereinafter
referred to as ``Tier 3'' waters (40 CFR 131.12(a)(3)). This proposal
focuses on different aspects of state and tribal implementation methods
to ensure effective and transparent implementation of Tier 2 high
quality water antidegradation protection provisions.
    In this regard, the EPA indicated in its 1998 ANPRM that ``on a
national scale, antidegradation is not being used as effectively as it
could be,'' a concern that continues today and is echoed by
stakeholders who have identified antidegradation as an underused
component of water quality protection. Although the federal
antidegradation regulation is intended to help states and tribes
protect and maintain high quality waters, the number of waters that are
identified as impaired continues to grow. The benefits of high quality
waters may be jeopardized if states and tribes do not consider the
long-term consequences of lowering water quality or evaluate the
alternatives that might be available to reduce the need to accommodate
increased pollution.
    While the EPA has issued guidance in the past to help facilitate
state and tribal implementation of the regulatory antidegradation
provisions, the EPA received substantial feedback from stakeholders
that existing CWA antidegradation regulatory provisions and related
guidance have not been fully successful in ensuring consistent and
effective implementation of Tier 2 high quality water protections.
Moreover, states have recognized the limits of national guidance in the
area of CWA implementation. Most recently on March 30, 2011, the
Environmental Council of the States published a resolution entitled
``Objection to U.S. Environmental Protection Agency's Imposition of
Interim Guidance, Interim Rules, Draft Policy and Reinterpretation
Policy'' in which it states that the ``EPA should minimize the use of
interim guidance, interim rules, draft policy and reinterpretation
policy and eliminate the practice of directing its regional or national
program managers to require compliance by states with the same in the
implementation of delegated programs.'' For these and the other reasons
discussed above, the EPA is, therefore, revising its regulation to
update the requirements for transparent and effective state and tribal
antidegradation implementation.

1. The EPA Proposal--Part 1: Identification of High Quality Waters
    The EPA is proposing to add paragraph (b)(1) to Sec.  131.12 to
provide that high quality waters may be identified on a parameter-by-
parameter basis or on a water body-by-water body basis, as long as the
state or tribal implementation methods ensure that waters are not
excluded from Tier 2 protection solely because not all of the uses
specified in CWA section 101(a)(2) are attained. The EPA's established
view is that either method of identifying high quality waters is
acceptable, but is proposing today to codify that flexibility for
states and tribes into regulation. By ``the uses specified in CWA
section 101(a)(2)'' the EPA means the uses and functions encompassed
within the CWA section 101(a)(2), such as aquatic life support,
wildlife support, consumption of aquatic life, and recreation.
    The nationally applicable water quality standards regulation at
Sec.  131.12 describes high quality waters as those where the quality
of the waters exceed levels necessary to support the propagation of
fish, shellfish, and wildlife and recreation in and on the water (i.e.,
the CWA goals articulated in section 101(a)(2)). States typically use
one of two approaches to identify high quality waters. While the EPA
specified in the ``Water Quality Guidance for the Great Lakes System''
that high quality waters subject to 40 CFR part 132 must be identified
using a parameter-by-parameter approach, the WQS regulation applicable
to all states and tribes (at 40 CFR part 131) does not currently
specify how a state or tribe must identify its high quality waters for
purposes of the antidegradation requirements. States and tribes using a
parameter-by-parameter approach identify which waters are of high
quality for purposes of a Tier 2 review at the time the activity that
would lower water quality is proposed. Under this approach, when an
activity is proposed that would potentially lower water quality in any
high quality water, the state or tribe would determine for which
parameters the water quality is better than applicable criteria
developed to support the CWA 101(a)(2) uses. Each parameter for which
water quality would be lowered by the permitted activity is considered
independently and, once a parameter is determined to exist at a level
that is better than applicable criteria, the state or tribe would
conduct a Tier 2 review for that parameter. In contrast, states and
tribes using a water body-by-water body approach typically identify
high quality waters in advance on a list by weighing a variety of
factors to classify a water body's overall quality. If an activity is
proposed that would potentially lower water quality, the state would
first determine if that water body is on its Tier 2 list, and thus
eligible for Tier 2 review.
    The EPA has found, however, that it is currently possible for high
quality waters to be identified on a water body-by-water body basis in
a manner that the EPA believes may be contrary to the intent of the
antidegradation provisions. In some cases, states or tribes have
implemented antidegradation such that, where a water body is listed on
the CWA section 303(d) list based on one or more parameters affecting
only one of the CWA 101(a)(2) uses, the state or tribe automatically
considers the water no longer high quality. As a result, the state or
tribe would no longer conduct Tier 2 reviews before allowing a lowering
of water quality for any parameter. However, individual Section 303(d)
listings can be a potentially poor indicator of the overall quality of
a surface water because, although one or more of the uses specified in
101(a)(2) is listed as impaired, one or more other uses specified in
101(a)(2) might still be attained and the water quality may be higher
than necessary to support such use(s). Such a means of identifying high
quality waters would categorically deny Tier 2 protection to a water
body that is still of high quality with respect to other uses specified
in CWA 101(a)(2).
    If a water body can be excluded from Tier 2 protection solely
because one of the uses specified in 101(a)(2) is not being attained,
without a holistic evaluation of the water body, it is possible that a
large number of state and tribal waters would never be subject to Tier
2 review for any parameter. Yet those waters may in fact be high
quality waters relative to other unimpaired uses. Thus, such water
bodies could be degraded further without a public participation
process. For example, mercury is widely prevalent in U.S. waters and is
known to bioaccumulate in fish tissue, thus affecting the water body's
ability to support protection and propagation of aquatic life. A recent
statistically based EPA sampling survey found predator species fish
tissue in 49 percent of the sampled population of lakes in the
conterminous United States with surface areas greater than or equal to
1 hectare exceeded the EPA's recommended 0.3 ppm tissue-based mercury
criterion (``National Study of Chemical Residues in Lake Fish Tissue,''
EPA 823-R-09-006). If all states and tribes used an approach for
identifying high quality water whereby any impairment rendered the
water body ineligible for Tier 2 protection, almost half of the lakes
would automatically be excluded from Tier 2 high quality water
protection. The EPA's view is that this approach would not be
consistent with the objectives of the CWA and the intent of the
antidegradation regulation.
    The EPA recognizes that there may be multiple ways for a state or
tribe to develop a water body-based approach for identifying high
quality waters consistent with the goals of the CWA and the
antidegradation regulation. The EPA understands that in some cases,
Sec.  131.12(a)(2) has been interpreted to mean that if any one of the
uses reflecting CWA 101(a)(2) goals is not supported, that the water
body as a whole cannot be considered high quality. The regulatory
language, however, is derived from the language in CWA 101(a)(2) that
specifies it is a national goal to achieve water quality that provides
for ``the protection and propagation of fish, shellfish, and wildlife
and provides for recreation in and on the water.'' The intent of this
CWA statement is to strive towards all of the uses specified in the
provision and not to stop striving towards all of the uses simply
because one of them is not being achieved. The EPA's proposal and
interpretation of 40 CFR 131.12(a)(2) is consistent with the intent of
the CWA.
    Rather than excluding a water body from Tier 2 protection solely
because not all of the uses specified in CWA section 101(a)(2) are
attained, the EPA would expect the state or tribe to consider a
combination of chemical, biological, and physical characteristics in
identifying high quality waters. In other words, the EPA would expect
the state or tribe to use all the relevant available data to conduct an
overall holistic assessment of these characteristics in order to
determine whether a water body would receive Tier 2 protection. Some of
the factors a state or tribe may consider include, but are not limited
to, existing aquatic life uses including aquatic assemblages, habitat,
hydrology, geomorphic processes, and landscape condition; existing
recreational uses and recreational significance; and the overall value
and significance of the water body from an ecological and public-use
perspective. Numerous tools, such as biological, habitat, hydrologic,
geomorphic, and landscape assessments or the environmental impact
statement rating system, could be useful to states and tribes in making
and supporting these judgments.

    For purposes of better understanding this proposal, consider the
following examples.
     Water Body A has aquatic life and recreational designated
uses and is listed as impaired for methylmercury and bacteria, pursuant
to CWA section 303(d). Under this proposed rule, a state or tribe using
a water body-by-water body approach could exclude Water Body A from its
Tier 2 list because the state or tribe could show that high levels of
methylmercury prevent the attainment of protection and propagation of
fish, shellfish and wildlife, and that high levels of bacteria prevent
attainment of recreation in and on the water.
     Water Body B has aquatic life and recreational designated
uses and is listed pursuant to CWA section 303(d) as impaired for
methylmercury, but not for bacteria or any other pollutant necessary to
protect recreation. Under a water body-by-water body approach, the
proposed rule would prohibit the state or tribe from excluding Water
Body B from its Tier 2 list solely because the water body cannot attain
protection and propagation of aquatic life due to methylmercury. Water
Body B is still attaining recreation in and on the water as specified
in section 101(a)(2) of the Act.
    The EPA invites comments on the proposed addition of paragraph
(b)(1) to Sec.  131.12. Additionally, the EPA is considering whether to
specify how a state or tribe determines for which parameters Tier 2
review must be conducted depending on the approach used to identify
high quality waters. The EPA requests comment on whether, once a high
quality water is identified, the Tier 2 review process for that water
body should differ depending on the approach used to identify it as
high quality. As the EPA has explained before in the ANPRM and in the
``Water Quality Guidance for the Great Lakes System'' (40 CFR part
132), for high quality waters identified through the parameter-by-
parameter approach, states and tribes conduct Tier 2 reviews for all
parameters for which the water quality has been identified as better
than the applicable criteria developed to support the CWA 101(a)(2)
uses. Each parameter for which water quality would be lowered by the
permitted activity is considered independently and, once a parameter is
determined to exist at a level that is better than applicable criteria
developed to support the CWA 101(a)(2) uses, the state or tribe would
conduct a Tier 2 review for that parameter.
    The EPA has made a variety of different statements about how Tier 2
reviews are conducted once the water body is identified as Tier 2 using
a water body-by-water body approach.15 16 Thus, for the
water body-by-water body approach the EPA could specify that Tier 2
reviews must be conducted for all parameters for which the water
quality has been identified as better than the applicable criteria
developed to support the CWA 101(a)(2) uses.
---------------------------------------------------------------------------

    \15\ See ``EPA Region VIII Guidance: Antidegradation
Implementation; Requirements, Options, and EPA Recommendations
Pertaining to State/Tribal Antidegradation Programs,'' August, 1883,
page 14, http://water.epa.gov/scitech/swguidance/standards/adeg/upload/Region8_ch2_pg5-20.pdf.
    \16\ See ``Proposed Water Quality Standards for Kentucky,''
November 2002, page 68977, http://www.epa.gov/fedrgstr/EPA-WATER/2002/November/Day-14/w28922.htm.
---------------------------------------------------------------------------

    Alternatively, the EPA could specify that for waters identified as
high quality on a water body-by-water body basis, Tier 2 reviews are
only required for parameters associated with the 101(a)(2) uses
currently being supported. For example, in Water Body B above, a Tier 2
review would only be required for each parameter that is better than
the applicable criteria to protect recreation. And, a Tier 2 review
would not be required for any parameter only associated with the
aquatic life use (i.e., and not also associated with the recreation
use).
    The EPA could also specify that states and tribes have discretion
on how to conduct the Tier 2 reviews. The EPA also invites comments on
any other options it should consider or on the interpretations
expressed in this section.
2. The EPA Proposal--Part 2: Alternatives Analysis
    The EPA is proposing to add paragraph (b)(2) to 40 CFR 131.12 to
ensure that states and tribes will only make a finding that lowering
water quality is necessary, as required in Sec.  131.12(a)(2), 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. This proposal also provides that if a state or
tribe can identify any practicable alternatives, the state or tribe
must choose one of those alternatives to implement when authorizing a
lowering of high water quality.
    Section 131.12(a)(2) also provides that high quality water shall be
maintained and protected unless the state or tribe finds (after
satisfaction of public participation and intergovernmental coordination
requirements) that ``allowing lower water quality is necessary to
accommodate important economic or social development in the area in
which the waters are located'' (40 CFR 131.12(a)(2)). As discussed
previously, this process is called a Tier 2 review. Tier 2 review calls
for the state or tribe to investigate two questions: (1) Whether
allowing lower water quality is necessary to accomplish the proposed
activity, typically by examining alternative ways of accomplishing the
activity through an alternatives analysis; and (2) whether the proposed
activity that will result in lower water quality will accommodate
important economic or social development, through a socio-economic
analysis. States and tribes may determine the order in which to
complete the two aspects of the finding. In addition, states have
discretion to decide there is no need to answer the second question if
the answer to the first question is ``no.'' For example, a state or
tribe may choose to first ask whether lowering of water quality is
necessary to accomplish the proposed activity, and if the answer is
``no,'' decide at that point not to investigate whether the proposed
activity will accommodate important economic or social development.
While this finding is a state or tribal responsibility, the EPA
recognizes that states and tribes may establish processes requiring the
entity responsible for conducting the proposed activity to provide
information or conduct the necessary evaluations.
    Although the existing regulation implies that the state or tribe
must have a means of evaluating whether a lowering of water quality is
necessary to accomplish the proposed activity, currently there is no
explicit requirement to conduct an alternatives analysis. Even if a
state or tribe conducts an alternatives analysis, the regulation does
not specify that, where there is a practicable alternative, the state
or tribe must select an alternative for implementation. For these
purposes, the term ``practicable'' means that the alternatives
considered must be available for the proposed activity, technologically
possible, able to be done or put into practice successfully at the site
in question, and economically viable. This lack of specificity can
result in situations where a state or tribe does not evaluate less-
degrading or non-degrading alternatives to the proposed activity, and
thus lacks a reasoned basis for determining if the proposed lowering of
water quality is necessary to accomplish the proposed activity, or not.
The EPA's view is that this lack of specificity can lead to state or
tribal decisions to lower water quality without appropriately making a
finding that a

lowering is necessary, contrary to section 131.12(a)(2).
    This issue was considered carefully as part of the development of
updated water quality requirements for the Great Lakes states in 1995.
The regulation at 40 CFR part 132, Appendix E, addresses it by
requiring that any entity seeking to degrade high water quality must
submit an antidegradation demonstration for consideration by the state.
This demonstration includes an analysis identifying any cost-effective
pollution prevention alternatives and techniques, as well as an
analysis identifying alternative or enhanced treatment techniques (and
their relative costs) that are available to the entity and that would
eliminate or significantly reduce the extent to which the increased
loading results in a lowering of water quality. States and tribes
should tailor the level of detail and documentation in antidegradation
reviews to the specific circumstances encountered. The state or tribe
then uses that information to determine whether or not the lowering of
water quality is necessary.
    Under the approach proposed today, the state or tribe would conduct
its alternatives analysis by considering a range of non-degrading and
minimally degrading practicable alternatives to the proposed activity.
Similar to the alternatives analysis provided for in 40 CFR part 132,
this evaluation would include a consideration of any non-degrading or
minimally degrading cost-effective pollution prevention alternatives
and enhanced treatment techniques, but would not be limited to those.
For example, alternatives could include no discharge, pollution
prevention measures, process changes, reduction in the scale of the
project, advanced or different treatment technologies, water recycling
and reuse, land application, seasonal or controlled discharge options
avoiding critical water quality periods, and alternative discharge
locations, if such measures were practicable.
    Once the state or tribe has identified a range of practicable
alternatives, the state or tribe would evaluate the alternatives in
terms of the extent of degradation that would result. By initially
considering practicable alternatives that represent a range from non-
degrading to minimally degrading as opposed to simply identifying the
single least degrading alternative, the state or tribe then has a basis
to make the required finding, considering the implications and
technological and economic practicability of the alternatives more
holistically, and considering any impacts beyond the direct effects on
water quality, such as cross-media impacts (e.g., impacts on land due
to land application of pollutants found in water). This will allow the
state or tribe to determine whether the lowering of water quality is
necessary to accommodate important economic or social development per
Part 131.12(a)(2). As reflected in the Great Lakes System regulation at
Part 132, the EPA believes states and tribes should tailor the level of
detail and documentation of alternatives analyses in antidegradation
reviews to the significance and magnitude of the particular
circumstances encountered.
    The EPA invites comment on the proposed addition of paragraph
(b)(2) to Sec.  131.12. The EPA also invites comment on any other
options it should consider or on the interpretations expressed in this
section.
3. The EPA Proposal--Part 3: Developing and Making Available to the
Public Antidegradation Implementation Methods
    The EPA is proposing to add paragraph (b) to 40 CFR 131.12 to
specify that states and tribes must develop and make available to the
public antidegradation implementation methods to improve program
implementation, ensure consistency with the CWA, and provide
transparency as to applicable state and tribal antidegradation review
requirements. The EPA is also making changes to language in Sec.
131.5(a) describing the EPA's authority to review and approve or
disapprove state-adopted or tribal-adopted antidegradation policies.
The language in Sec.  131.5(a) further specifies that if a state or
tribe has chosen to formally adopt implementation methods as water
quality standards, the EPA would review whether those implementation
methods are consistent with Sec.  131.12. 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 adopted as WQS and thus
subject to the EPA's review and approval or disapproval. Alternatively,
the EPA is considering and requesting comment on whether the EPA should
specify that states and tribes may, but are not required to, adopt
antidegradation implementation methods as WQS.
    Currently there is confusion whether the existing regulations
require states and tribes to adopt antidegradation implementation
methods as WQS. Stakeholders have raised concerns that some states and
tribes have not developed or made publically available antidegradation
implementation methods, despite the fact that the regulation requiring
this was established in 1983. Specifically, they are concerned that the
absence of such methods reduces transparency in the implementation of
states' and tribes' policies, and potentially limits the ability to
ensure protection of existing uses, high quality waters, and ONRWs to
the full extent required by the regulation. The CWA at section 101(e)
specifically states that ``public participation in the development,
revision, and enforcement of any regulations, standard, effluent
limitation, plan, or program established . . . under this Act shall be
provided for, encouraged, and assisted. . . .'' The EPA encourages
states and tribes to provide a robust and transparent process for
developing and making available to the public their antidegradation
implementation methods and for implementing those methods in specific
cases.
    Section 501(a) of the CWA (33 U.S.C. 1361(a)) authorizes the EPA
Administrator to ``prescribe such regulations as are necessary to carry
out [her] functions under this Act.'' The CWA, under section 303(c),
also specifies that the EPA Administrator must review and approve new
or revised WQS after determining they are consistent with applicable
requirements under the CWA. The EPA believes that antidegradation
implementation methods are an important component of implementing
antidegradation policies. Thus, the EPA is considering and requesting
comment on whether the EPA should include a requirement that
implementation methods be formally adopted as WQS and thus subject to
the EPA's review and approval or disapproval. Formal adoption of
implementation methods as WQS, along with EPA review under section
303(c) of the Act, would help ensure the consistent and effective
implementation of the state or tribe's antidegradation provisions so
that waters will be maintained and protected in accordance with the
objectives of the Act.\17\ At the same time, the EPA acknowledges the
primary role of states and tribes in establishing and implementing
water quality standards. The EPA is thus alternatively considering and
requesting comment on whether to specify in rule that states and tribes
may, but are not required to, adopt antidegradation implementation
methods as WQS subject to EPA approval. In this case,

states and tribes must develop antidegradation implementation methods,
and must make them available to the public, but they would not be
subject to EPA review and approval or disapproval unless the state or
tribe chose to formally adopt them as WQS.
---------------------------------------------------------------------------

    \17\ As of 2013, the EPA is aware of 25 states that have adopted
antidegradation implementation methods entirely into rule.
---------------------------------------------------------------------------

    Additionally, antidegradation is an essential part of WQS and state
and tribal approaches to implementing antidegradation requirements may
have direct implications for NPDES permits, as well as other federal
permits and licenses for activities that affect water quality. The EPA
believes that this may be an additional reason why the regulations
should require states and tribes to formally adopt, after providing an
opportunity for public involvement, and obtain EPA approval for
antidegradation implementation methods. Lastly, state and tribal
antidegradation programs that have antidegradation implementation
methods adopted into regulations are more transparent to stakeholders
and the public, as well as provide greater clarity to regulated
industry.
    The ``Water Quality Guidance for the Great Lakes System'' (40 CFR
part 132) provides that an acceptable antidegradation policy and
implementation methods are required elements of a state's or tribe's
WQS program for waters of the Great Lakes system. That regulation
requires that Great Lakes states and tribes adopt provisions into their
policy and implementation methods that are consistent with a list of
specifications, including details on how high quality waters are to be
identified and on the components of antidegradation Tier 2 reviews.
    Consistent with this ``Water Quality Guidance for the Great Lakes
System'' requirement and for the reasons explained, the EPA is
considering and seeking comments on a revision to the antidegradation
regulation at 40 CFR 131.12 that would require states and tribes to
adopt antidegradation implementation methods in order to improve
program implementation, ensure consistency with CWA, and provide
transparency as to applicable state or tribal antidegradation review
requirements. If the EPA were to finalize such a requirement, the EPA
would expect that a state or tribe's adopted implementation methods
would describe how the state or tribe intended to implement each aspect
of its policy, consistent with Sec.  131.12(a), as well as how
antidegradation decisions would be documented. This would provide
sufficient information so that the public and the EPA would understand
the extent to which activities affecting water quality are being
authorized consistent with the state's or tribe's antidegradation
policy and other CWA requirements.
    The EPA invites comments on the proposed addition of paragraph (b)
to Sec.  131.12. As previously mentioned, there is confusion whether
the existing regulations require states and tribes to adopt
antidegradation implementation methods as WQS. The EPA requests comment
on whether the EPA should require, as part of Section 131.12(b), that
implementation methods be adopted as WQS and thus subject to the EPA's
review and approval or disapproval. If the EPA makes adoption of
implementation methods a requirement, the EPA is also considering
corresponding revisions to sections 131.5(a) and 131.6(d).
Specifically, the EPA requests comment on whether a corresponding
revision should be made to section 131.6(d) to clarify that
implementation methods are one of the minimum requirements for a water
quality standards submission. Alternatively, the EPA is requesting
comment on whether the EPA should explicitly specify in regulation that
states and tribes are not required to adopt antidegradation
implementation method as WQS. Finally, the EPA invites comments on any
other options it should consider or on the interpretations expressed in
this section.
4. Minimum Elements of an Antidegradation Implementation Method
    The EPA's basis for taking approval or disapproval action on a
state's or a tribe's antidegradation policy is whether the policy is
consistent with the CWA and the water quality standards regulations at
40 CFR Sec.  131.12. While the current regulations do not require
states or tribes to adopt antidegradation implementation methods as
water quality standards, if a state or tribe chooses to do so, the EPA
would review a state's or tribe's implementation methods on the basis
of ensuring that the methods do not undermine the state's or tribe's
own antidegradation policy. This proposed revised antidegradation
regulation continues to provide for a wide range of state and tribal
approaches to antidegradation. States and tribes have considerable
discretion in how they address each of the elements of antidegradation
implementation specified in the regulation. To facilitate development
of implementation methods, the EPA is providing in this preamble a list
of the areas states' and tribes' implementation methods would need to
address, at a minimum, to be consistent with the WQS regulation. This
list is based on requirements currently found in the federal
antidegradation regulation, as well as proposed requirements found in
this action. Again, how states and tribes address each of these areas
in their methods is within their discretion, as long as it does not
undermine their antidegradation policy or is otherwise inconsistent
with the Act or EPA's regulations.
    a. Scope and applicability: the state or tribe should describe the
scope and applicability of their antidegradation policy.
    b. Existing uses protection: the state or tribe will ensure the
maintenance and protection of all existing uses and the water quality
necessary to protect the existing uses.
    c. High quality water protection
    i. Identification of high quality water: the state or tribe will
identify high quality waters on a parameter-by-parameter basis or a
water body-by-water body basis, as long as the state's or tribe's
implementation methods ensure that waters are not excluded from Tier 2
protection solely because not all of the uses specified in CWA section
101(a)(2) are attained.
    ii. Alternatives analysis and social/economic analysis: the state
or tribe will determine whether the lowering of water quality that
would result from a proposed activity is necessary to accommodate
important economic or social development in the area in which the
waters are located through an alternatives analysis and a social and/or
economic analysis.
    iii. Public participation and intergovernmental coordination: the
state or tribe will ensure full satisfaction of the public
participation and intergovernmental coordination provisions of the
state's or tribe's continuing planning process in any finding that will
allow lower water quality.
    iv. Requirements for point and nonpoint sources: the state or tribe
will 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 when allowing a lowering of water quality.
    d. ONRW protection: the state or tribe will ensure the maintenance
and protection of water quality for waters identified as ONRWs.
    e. Thermal Discharges: The state or tribe will ensure consistency
with Section 316 of the Act in cases that involve potential water
quality impairment associated with thermal discharges.

5. How does this proposal affect states or authorized Tribes for which
the EPA has promulgated antidegradation implementation methods?
    The revised WQS regulation will apply to all states, authorized
tribes, and territories, regardless of whether or not the EPA has
previously promulgated an antidegradation policy or implementation
methods for the state or tribe. Therefore, any previously promulgated
antidegradation policies or implementation methods may require revision
to meet the new requirements of Section 131.12.

F. WQS Variances

1. Background
    The EPA has encouraged states and tribes to utilize WQS variances
\18\ (hereafter referred to as ``variances''), where appropriate, as an
important WQS tool that provides states and tribes time to make
progress towards attaining a designated use and criteria. The EPA has
offered input and support for variances through Office of General
Counsel legal decisions,\19\ guidance, memoranda, and approval actions
for many years. These documents specifically explain the EPA's
interpretation that variances may be granted if the state or authorized
tribe demonstrates that the variance meets the same requirements as a
permanent \20\ designated use change, even though the WQS regulation
lacks explicit provisions on the issue. As a result, the EPA has heard
from states, tribes, and stakeholders that there is confusion,
inconsistency, and mixed interpretations about how, when, and where
variances may be used appropriately (e.g., with regard to nutrients and
implementation of numeric nutrient criteria). In particular, the EPA
has found that this WQS tool is underutilized. For example, since
tracking WQS variance submittals in 2004, four EPA Regions have never
received a WQS variance submittal. However, the EPA has found that
where states and tribes and their stakeholders have more specificity in
regulation regarding variances, such as those states and tribes covered
by the ``Water Quality Guidance for the Great Lakes System'' (i.e.,
Great Lakes Initiative) rulemaking at 40 CFR part 132, they are
successfully adopting and submitting WQS variances. This proposed rule
is intended to provide this specificity nationally.
---------------------------------------------------------------------------

    \18\ The EPA distinguishes WQS variances, as described in
today's proposed rulemaking, from variances as described in the
EPA's permitting regulation at Sec. Sec.  122.2 and 125.3.
    \19\ The EPA's memoranda discussing variances are available on
the EPA's Web site at http://water.epa.gov/scitech/swguidance/waterquality/standards/handbook/chapter05.cfm#section3.
    \20\ ``Permanent'' is used here and throughout this section to
contrast between the time-limited nature of variances and designated
use changes in accordance with 40 CFR 131.10 that require a revision
to a State's water quality standards to reverse. 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 State shall revise its standards
accordingly.''
---------------------------------------------------------------------------

    The CWA specifies a national goal at Section 101(a) to restore and
maintain the chemical, physical and biological integrity of the
Nation's waters and an interim goal in Section 101(a)(2) that,
``wherever attainable,'' water quality provide for the protection and
propagation of fish, shellfish, and wildlife and provides for
recreation in and on the water. In implementing the CWA, the regulation
at 40 CFR 131.10 establishes provisions relating to the management of
designated uses. In 1977, an Office of General Counsel legal decision
considered the practice of temporarily downgrading the WQS as it
applies to a specific discharger rather than permanently downgrading an
entire water body or waterbody segment(s) and determined that such a
practice is acceptable under the EPA's existing regulations as long as
the variance is adopted consistent with the substantive and procedural
requirements for permanently downgrading a designated use. In other
words, a state or tribe may change the standard in a more targeted way
rather than remove the standard all together. The EPA further explained
that it would be appropriate to grant a variance based on any of the
six factors for removing a designated use as listed in Sec.
131.10(g).\21\
---------------------------------------------------------------------------

    \21\ Variances in Water Quality Standards, March 15, 1985, Memo
from Edwin L. Johnson, Director of the Office of Water Regulations
and Standards, to the Regional Water Division Directors and the
Advanced Notice of Proposed Rulemaking at 63 FR 36759.
---------------------------------------------------------------------------

    The state practice described in the Office of General Counsel legal
decision became known as adopting a ``variance'' to WQS. Specifically,
a variance is a time-limited designated use and criterion that is
targeted to a specific pollutant(s), source(s), and/or water body or
waterbody segment(s) that reflects the highest attainable condition
during the specified time period. Variances are different from changes
to the designated use and associated criteria in that they are intended
as a mechanism to provide time for states, authorized tribes and
stakeholders to implement adaptive management approaches that will
improve water quality where the designated use and criterion currently
in place are not being met, but still retain the designated use as a
long term goal. Variances are limited in scope and are an
environmentally preferable tool over a designated use change because
variances retain designated use protection for all pollutants as they
apply to all sources with the exception of those specified in the
variance. Even the discharger who is given a variance for one
particular constituent is required to meet the applicable criteria for
all other constituents. The variance is given for a limited time period
and the discharger must either meet the WQS upon the expiration of this
time period or the state or tribe must adopt a new variance or re-
justify the current variance subject to EPA review and approval. Thus,
when properly applied, a variance can lead to improved water quality
over time, and in some cases, full attainment of designated uses due to
advances in treatment technologies, control practices, or other changes
in circumstances, thereby furthering the objectives of the CWA.
    Presently, the nationally applicable WQS regulation only mentions
variances in 40 CFR 131.13. This provision indicates that variance
policies are general policies affecting the application and
implementation of WQS, and that states and tribes may include variances
policies in their state and tribal standards, at their discretion. The
EPA provided variance procedure requirements when it promulgated WQS
for Kansas (Sec.  131.34(c)), Puerto Rico (Sec.  131.40(c)), and the
Great Lakes System (40 CFR part 132, Appendix F, Procedure 2). However,
the nationally applicable regulation does not explicitly address
questions such as when a variance can be granted, how a variance must
be justified, what is required during the term of the variance, or for
how long a variance can be granted. The EPA's established position has
been that variances, as time-limited and narrow use revisions, are
appropriate WQS tools that must go through public review and require
the EPA's review and approval.\22\ This position is supported by the
EPA's practice regarding variances.\23\ Today, we recognize a more
direct link to the CWA Section 101(a)

goal of ``restore and maintain'' for variances. WQS variances are
consistent with the ``restore'' aspect of the goal since variances are
intended to allow incremental environmental progress in achieving
designated uses. As described in detail in section III.F.2, the EPA is
proposing a set of variance provisions that are in many ways parallel
to the regulations in 131.10, but are tailored to better fit the
circumstances where variances will allow for environmental progress
toward achieving the goals of the CWA. The EPA notes that its
understanding and past practice allows for variances whether or not
those uses are specified in Section 101(a)(2), however, the
demonstration may differ.
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    \22\ The EPA addressed variances in its Kansas and Puerto Rico
promulgations and part 132 Great Lakes Water Quality Guidance
regulations (Published March 23, 1995, http://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&SID=105020ee867fe139a8d0965b23bf7557&rgn=div5&view=text&node=40:<IP_ADDRESS>.19&idno=40).
    \23\ The EPA's WQS Handbook, 1994: http://water.epa.gov/scitech/swguidance/standards/handbook/chapter05.cfm#section3
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    States and tribes have expressed that variances are useful in a
number of circumstances where the state or tribe has demonstrated that
the designated use and criterion are not attainable today (or for a
limited period of time), but may be attainable in the longer term.
Examples include when:
     Attaining the designated use and criterion is not feasible
under the current conditions (e.g., attainment of numeric nutrient
criteria would result in substantial and widespread social and economic
impact) but could be feasible should circumstances change (e.g.,
development of less expensive pollution control technology or a change
in local economic conditions); or
     The state or tribe does not know whether the designated
use and criterion can be attained, but feasible progress toward
attaining the designated use and criterion can still be made by
implementing known controls and tracking environmental improvements
(e.g., complex use attainability challenges involving legacy
pollutants).
    There are a variety of tools available to states, tribes and
dischargers that can provide time to meet regulatory requirements;
however, the most common regulatory tools considered are variances and
permit compliance schedules. Which tool is appropriate depends upon the
circumstances. Variances can be appropriate to address situations where
it is known that the designated use and criterion are unattainable
today (or for a limited period of time) but feasible progress could be
made toward attaining the designated use and criterion. A permit
compliance schedule, on the other hand, may be appropriate when the use
is attainable, but the permittee needs additional time to modify or
upgrade treatment facilities in order to meet its WQBEL such that a
schedule and resulting milestones will lead to compliance ``as soon as
possible'' with the WQBEL based on the currently applicable WQS. (See
CWA section 507(17) for a definition of ``Schedules of compliance'' and
40 CFR 122.47).
    The EPA is proposing and soliciting comment on revisions to the WQS
regulation that will provide more specificity and clearer requirements
on the development and use of variances. Such revisions will establish
requirements to help improve water quality by allowing states and
tribes time to work with stakeholders to address any challenges and
uncertainties associated with attaining the designated use and the
associated criterion. These revisions will also provide assurance that
further feasible progress toward the designated use and criterion will
be made during the variance period.
    The EPA's proposed regulatory provisions for variances at Sec.
131.14 address the following key topic areas: (1) Applicability, (2)
submission requirements, (3) implementing variances, (4) how to renew a
variance, and (5) conforming changes to Sec. Sec.  131.34 and 131.40. A
discussion of this proposal and the rationale for each proposed
regulatory provision follows.
2. Rationale and the EPA Proposal
a. Part 1--Applicability of Variances
i. The Scope of a Variance
    To provide clarity, promote consistency, and avoid conflicting
interpretations of WQS variances, the EPA is proposing a new regulatory
definition for WQS variance at Sec.  131.14. A water quality standards
variance (WQS variance) is a time-limited 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. Variances are WQS subject to EPA review and
approval or disapproval and must be consistent with Sec.  131.14. As
WQS, variances are subject to Sec.  131.20(a) and thus must be reviewed
on a triennial basis. States and tribes continue to have broad
discretion on the structure of their triennial reviews and can decide
whether and how to modify or adopt WQS as a result of a triennial
review. The EPA is also proposing to specify at Sec.  131.14(a)(1) that
all other applicable water quality standards not specifically addressed
by the variance remain applicable.
    Typically, states find variances that apply to a specific
pollutant(s) and discharger(s) to be most useful. If a state believes
that the designated use and criterion is unattainable for a period of
time because the discharger cannot meet its WQBEL, the state may grant
a discharger-specific variance so long as the variance is consistent
with the CWA and implementing regulation.
    Similarly, if a state or tribe believes that the designated use and
criterion is unattainable as it applies to multiple permittees because
they are all experiencing challenges in meeting their WQBELs for the
same pollutant for the same reason, regardless of whether or not they
are located on the same water body, a state or tribe may streamline its
variance process by granting one variance that applies to all these
dischargers (i.e., a multiple discharger variance) so long as the
variance is consistent with the CWA and implementing regulations. The
EPA recognized the utility of a multiple discharger variance and its
distinction from an individual discharger variance in the ``Water
Quality Guidance for the Great Lakes System: Supplementary Information
Document'' (SID; EPA-820-B-95-001; March 1995). The EPA provided
further clarification regarding multiple discharger variances in the
``Water Quality Standards for the State of Florida's Lakes and Flowing
Waters; Final Rule'' (75 FR 75790, December 6, 2010). More recently in
March 2013, the EPA provided a set of frequently asked questions to
assist states and tribes in developing credible rationales for multiple
discharger variances. \24\
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    \24\ Discharger-specific Variances on a Broader Scale:
Developing Credible Rationales for Variances that Apply to Multiple
Dischargers, EPA-820-F-13-012, March 2013 (http://water.epa.gov/scitech/swguidance/standards/upload/Discharger-specific-Variances-on-a-Broader-Scale-Developing-Credible-Rationales-for-Variances-that-Apply-to-Multiple-Dischargers-Frequently-Asked-Questions.pdf).
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    Where a state or tribe can demonstrate that the designated use and
criterion currently in place for a specific pollutant is not attainable
immediately (or for a limited period of time) for an entire water body,
the state or tribe may adopt a waterbody variance as an alternative to
a designated use change for the water body so long as the variance is
consistent with the CWA and implementing regulation. In such an
instance, the variance applies to the water body itself, rather than to
any specific source or sources. A waterbody variance provides time for
the state or tribe to work with both point and nonpoint sources to
determine and implement adaptive management approaches on a waterbody/
watershed scale to achieve pollutant reductions and strive toward
attaining the water body's designated use and associated criteria.
    States and tribes retain discretion as to whether, when, and where
to adopt variances. However, consistent with the

EPA's current position, should a state or tribe choose to grant a
variance, it is subject to the EPA's review and approval or
disapproval--regardless of the scope of the variance.
    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.
The EPA also invites comment on the applicability of variances to
individual dischargers, multiple dischargers and to entire water
bodies.
ii. An EPA Approved Variance Is Only Applicable for CWA Section 402
Permitting Purposes and in Issuing Certifications Under Section 401 of
the Act
    The proposed WQS regulation at 40 CFR 131.14(a)(2) would specify
that where a state or authorized tribe adopts a variance, the state or
tribal regulations must continue to reflect the underlying designated
use and criterion unless the state or tribe adopts and the EPA approves
a revision to the designated use and criterion as consistent with Sec.
131.10 or Sec.  131.11. The interim requirements specified in the
variance apply only for CWA section 402 permitting purposes and in
issuing certifications under section 401 of the Act for the
pollutant(s), permittee(s) and/or water body or waterbody segment(s)
covered by the variance.
    To date, the EPA's available guidance has characterized variances
as temporary changes to the designated use; however, such a
characterization might imply that the variance replaces the designated
use while the variance is in effect. This has led to conflicting
interpretations of how variances affect the implementation of WQS
through CWA programs, such as NPDES permits and the CWA 303(d)
requirements.
    The CWA and implementing regulation direct the states to add waters
that are not attaining any applicable WQS to their 303(d) impaired
waters list. Specifically, CWA section 303(d)(1)(A) states that ``each
state shall identify those waters within its boundaries for which the
effluent limitations required by section 301(b)(1)(A) and section
301(b)(1)(B) of this title are not stringent enough to implement any
water quality standards applicable to such waters''(emphasis added).
Stakeholders have expressed concern that if the interim requirements do
not replace the designated use and criterion, there will effectively be
two WQS applicable for purposes of implementing the CWA section 303(d)
program where a variance has been approved. However, the interim
requirements do not replace the designated use and criteria for the
water body as a whole. Discharger-specific variances affect the
development of WQBELs for the discharger(s) specified in the variance;
they do not affect the designated use and criterion that apply to the
rest of the water body. In addition, variances are time-limited and
intended as a tool to facilitate water quality improvements, not to
revise the long term goals for a water body. Therefore, any
implementation of CWA section 303(d) must continue to be based on the
underlying designated uses and criteria for the water body rather than
the interim requirements.
    By requiring state and tribal regulations to maintain the
underlying designated use and criterion where a variance is approved,
the proposed regulation will ensure it is clear that the interim
requirements associated with a variance do not replace the designated
use and criterion. This will, in turn, facilitate a consistent
interpretation regarding how variances affect the implementation of WQS
through the various CWA programs and how variances are to be used to
support feasible progress toward attaining the underlying designated
use and criteria.
    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.
iii. Relationship to Technology-Based Requirements in CWA Sections
301(b) and 306
    The EPA is proposing to add paragraph (a)(3) to 40 CFR 131.14 to
specify that a variance shall not be granted 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.
    As with designated use changes, variances are not permissible if
the WQS can be attained by implementing technology-based effluent
limits required under section 301(b) and 306 of the Act. Section
301(b)(1)(A), (B), and section 306 of the Act provide for technology-
based requirements through effluent limitations guidelines and new
source performance standards. These technology-based requirements
represent the minimum level of control that must be imposed in a permit
(40 CFR 125.3). Because variances are allowed only where the designated
use and criterion are demonstrated to be unattainable during the term
of the variance, it would not be appropriate to use a variance if the
designated use and criterion can be attained by implementing the
technology-based requirements of the Act.
    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.
b. Part 2--Submission Requirements
    This section describes the relevant information that a state or
authorized tribe must submit to the EPA when requesting the EPA's
review and approval of a variance.
i. Components of a Variance
1. Identifying Information--Pollutant(s), Permittee(s), Location
    The EPA is proposing to add paragraph (b)(1)(i) at 40 CFR 131.14
requiring states and authorized tribes to identify, in the variance,
the pollutant(s), the permittee(s), and/or the water body or waterbody
segment(s) to which the variance applies.
    This proposed regulatory revision will require all variances to
specify for what, to whom, and/or where the variance applies, which
will help ensure full transparency and public participation on the
applicability and scope of the variance. This will alleviate any
inconsistencies in the way states and tribes have articulated where,
when and how the variance applies.
    The EPA invites comment on its proposal and on any other options it
should consider or on the interpretations expressed in this section.
2. Numeric Interim Requirements That Apply During a Variance
    The EPA is proposing to add paragraph (b)(1)(ii) at 40 CFR 131.14
to require that a variance must specify (1) the highest attainable
interim use and numeric criterion that will apply during the term of
the variance or (2) an interim numeric effluent condition that reflects
the highest attainable condition for a specific permittee(s) during the
term of the variance. Neither (1) nor (2) 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 Sec.  131.14(b)(2)(ii).
    As variances have been implemented to date, some states and tribes
have not identified in the variance the interim requirements that shall
apply for permitting purposes during the term of the variance.
Specifying the interim requirements to be met during the variance will
provide the legal basis for permit writers to develop permit limits
that derive from and comply with a WQS, as required by the permitting
regulations at 40 CFR 122.44(d)(vii)(A).
    As discussed in Section III.C, the EPA is proposing a requirement
that a state

or tribe adopts the highest attainable use closest to the 101(a)(2)
goals when it has demonstrated that the use specified in CWA section
101(a)(2) or a subcategory of such a use is not attainable based on a
UAA. The EPA is proposing that a similar requirement apply to variances
such that if states or tribes can demonstrate that a use specified in
section 101(a)(2) or subcategory of such a use is not attainable for
the variance period, then the state or tribe must adopt a variance
reflecting the highest attainable condition during the term of the
variance. Such a requirement ensures that feasible progress will be
made towards the designated use and the criterion to protect that use
during the period of the variance.
    Requiring that states and tribes establish interim requirements
that apply for purposes of CWA section 402 permitting and in issuing
certifications under section 401 of the Act, and that such requirements
reflect the highest attainable condition during the variance, creates a
framework for variances to provide states and tribes with time to
implement adaptive management approaches that drive progress towards
meeting the designated use and criterion in a transparent and
accountable manner--a key environmental benefit of a variance. This is
consistent with previous EPA statements in the EPA's WQS Handbook and
1998 ANPRM that discuss the EPA's position regarding the progress to be
made during the term of the variance towards attaining the designated
use and criterion.\25\
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    \25\ The EPA's 1994 WQS Handbook stated that ``EPA has approved
state adopted variances in the past and will continue to do so if
[hellip]reasonable progress is being made toward meeting the
standards.'' The EPA's 1998 ANPRM indicated that the EPA was
considering revising its regulations to include a requirement that
before a variance may be granted the applicant must include
documentation that ``[hellip]reasonable progress will be made toward
meeting the underlying or original standard.'' The EPA did not
propose a revised regulation at that time.
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    A state's or tribe's determination or identification of the highest
attainable interim use need not be complex. A state or tribe could
simply include the phrase ``variance affected'' or ``variance
modified'' to the current use description or the state or tribe could
describe the interim use by identifying the parameter included in the
variance, such as ``pH-limited'' use as a way to provide transparency.
States and tribes may find it appropriate to adopt such ``variance
modified'' uses as the highest attainable interim use, rather than
adopting an alternate use from the state or tribe's current use
classification system, as they might be more likely to do if they were
making a permanent change to a designated use. To determine the numeric
criterion that protects the highest attainable interim use, a state or
tribe shall determine the condition that is both feasible to attain and
closest to the protection afforded by the designated use and criteria.
A state's or tribe's determination of the highest attainable condition
and numeric interim requirements to apply during a waterbody variance
should include consideration and evaluation of pollutant reductions
from all contributing sources. This could include an evaluation of the
point source controls, pollutant minimization plans and NPS pollutant
reductions that could be achieved in the water body.
    Rather than identifying the highest attainable interim use and
interim numeric criterion, a state or tribe may choose to specify in
its variance that the applicable interim water quality standard shall
be defined by a numeric effluent condition that reflects the highest
attainable condition for a specific permittee(s) during the term of the
variance. Adopting a numeric effluent condition that reflects the